IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL No. 1564 of 2001 (Old No. 1755/1998) Harish Ram .…. Appellant/Accused Versus State …………… Respondent April 28, 2010 Mr. Kailash Chandra Joshi, Advocate for the appellant. Mr. Amit Bhatt, Addl. GA for the State/respondent. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 21.8.1998 passed by the 3rd Additional Sessions Judge, Nainital in Sessions Trial No. 171/1997, State v. Harish Ram & 3 Ors., whereby the learned 3rd Additional Sessions Judge has convicted the appellant/accused Harish Ram and co-accused Noor Mohammad @ Guru under Section 379 of Indian Penal Code, 1860 (for short, IPC) as well as under Section 26 of the Indian Forest Act, 1927 (for short, the Act) and sentenced each of them to undergo two years’ R.I. under Section 379 IPC and to pay a fine of Rs. 1,000/- each, in default to undergo three months’ additional R.I. Under Section 26 of the Act, each of them were sentenced to undergo six months’ R.I. Both the sentences were directed to run concurrently. However, co-accused Riyasat and Nanha were acquitted of the charges punishable under Section 307/34, 379/411 IPC and Section 26 of the Act. Appellant accused Harish Ram and co-accused Noor Mohammad @ Guru were also acquitted of the charges punishable under Section 307/34 and 411 IPC. 2 2. In brief, the prosecution case is that PW1 Rajendra Prasad lodged an FIR Ex. Ka-2 on 25.7.1996 at 1.30 pm in PS Lalkuan with the averments that on 24.7.1996 at 7 pm, he along with Trilok Singh Sahi (PW3), Van Daroga; Bhairav Dutt Tiwari, Seasonal Staff; Prakash Chandra Pandey (PW2), Seasonal Staff with one more employee were patrolling in the forest. Suddenly they heard noise of cutting the trees. On this, they went near the place of occurrence and saw that 5-6 people were cutting the trees. They tried to pounce upon them but they ran away from the place of occurrence. They also fired on the patrolling team when they chased them. These persons were identified as the appellant accused Harish Ram and co- accused Noor Mohammad @ Guru, Riyasat and Nanha (Co-accused Riyasat and Nanha have been acquitted by the trial court). Eleven trees of Khairwood were recovered on the spot which were cut down. One saw and one axe were also recovered from the place of occurrence. Fard recovery (Ex. Ka-1) was also prepared. Entry of this incident was also made in Form No. H-2 in the Range Office, copy of which is Ex. Ka-3. On the basis of this report, chick FIR Ex. Ka-4 was prepared by Head Moharrir Rajendra Sharma. He also made the necessary entries in the GD. Copy of GD is Ex. Ka-5. Genuineness of these documents were admitted by the defence counsel. Investigation of this case was entrusted to SI Satyaveer Singh, who during the course of investigation inspected the place of occurrence and prepared the site plan Ex. Ka- 6. He also recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex. Ka-7 against the accused appellant and the co- accused. Genuineness of this document has been admitted by the defence counsel. 3 3. Learned Judicial Magistrate, Haldwani after giving the necessary copies of the documents to the accused appellant and the co-accused as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 4.3.1997. Learned Sessions Judge, Nainital transferred the case to Additional Sessions Judge, Nainital for its disposal according to law. 4. On 25.6.1997, learned Special Judge (CBI)/Additional Sessions Judge, Nainital framed the charges against the appellant/accused and the co- accused under Sections 307 read with Section 34 IPC, Section 379 IPC, Section 411 IPC and Section 26 of the Act. The charges were read over and explained to each of the accused appellant and the co-accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Rajendra Prasad, the complainant; PW2 Prakash Chandra Pandey and PW3 Trilok Singh Sahi. 6. Thereafter, the statements of the accused appellant and the co-accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, no oral or documentary evidence was produced in defence. 7. After hearing learned counsel for the parties and after appreciating the evidence on record, learned 3rd Additional Sessions Judge, Nainital vide his judgment and order dated 21.8.1998 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 21.8.1998, the 4 accused appellant Harish Ram has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. To prove its case, prosecution has examined PW1 Rajendra Prasad, who in his examination-in-chief has reiterated the version of made in the report and proved the FIR as Ex. Ka-2 and recovery memo as Ex. Ka-1. He has also identified the recovered articles in the court. He has identified the 33 pieces of khairwood as Ex I to XXXIII, saw as Ex. XXXIV and axe as Ex. XXXV. He has also stated that the he had entered the information of this crime in H-2 Form on the same day, copy of which is Ex. Ka-3. In his cross-examination, this witness has stated that the wood was kept in the range compound. There was no sign on the wood that this wood is related to the present case. The wood which was taken to the court compound in that wood there is no sign of identification. He has further stated that wood taken to the court compound was not taken as per the recovery memo from the range office. There is no sign impression of ghun on the pieces of wood. He has also stated that which accused had fired, he had not seen. 10. PW2 Prakash Chandra Pandey has also corroborated the statement of PW1 Rajendra Prasad in his examination- in-chief. But in the cross-examination, he has stated that the names of the accused appellant Harish Ram and co-accused Riyasat and Nanha (acquitted by the trial court) were told to him by the Forester. During the course of investigation, the I.O. has not enquired about the said incident from him. He has not seen the 5 arms in the possession of any accused persons because he has heard the noise of fire from the long distance behind the bushes. He has further stated that when the wood was recovered then the impression of ghun was affixed on it and the beet no. was also shown in the ghun and the case crime no. was also shown in the wood. He has further stated that the case property is not before him in the court. 11. PW3 Trilok Singh Sahi has also made the same statement as made by PW1 Rajendra Prasad and PW2 Prakash Chandra Pandey in their examination-in-chief. In his cross-examination, this witness has stated that the case property is not before him in the court. 12. Thereafter, the statements of the accused appellant and the co-accused were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them. However, no oral or documentary evidence was produced in defence. 13. Learned Counsel for the accused appellant argued that on the basis of the evidence discussed above, the case against the accused appellant is not proved beyond reasonable doubt and the other co-accused have been acquitted of the same charges on the basis of same set of evidence. Hence, appellant is also entitled for benefit of doubt. I find substance in the argument of learned Counsel for the appellant for the following reasons: (i) That the accused appellant and other co- accused persons were not arrested on the spot and no recovery of the abovesaid wood was made from their possession. 6 (ii) That as per the statement of PW2 Prakash Chandra Pandey, the impression of ghun, beet no. and case crime no. must be shown on the recovered wood i.e. the case property. But the case property was not produced in the court at the time of recording the statements of PW2 Prakash Chandra Pandey and PW3 Trilok Singh Sahi. The case property which was produced in that the impression of ghun, beet no., case crime no. were not depicted as per the recovery memo. It creates serious doubt on the prosecution story and the accused appellant is entitled for the benefit of doubt. (iii) That on the same set of evidence, co-accused Riyasat and Nanha have been acquitted of the charges levelled against them and, therefore, the appellant Harish Ram is also entitled for benefit of doubt. 14. My view is further fortified by the verdict of Hon’ble Apex Court in the case of “Deepak Rajak Vs. State of West Bengal” reported in 2007 AIR SCW 5740. Paras-5 & 6 of this judgment are essential to mention here, which are reproduced hereunder:- “5. The position in law as to what happens in case of acquittal of similarly placed co- accused on the same set of facts and on similar accusations has been considered by this Court in several cases. 6. A departure may be made in cases where the accused had not surrendered after the conviction in addition to not filing an appeal against the conviction. But as in the present case, after surrender, the 7 benefit of acquittal in the case of co- accused on similar accusations can be extended.” 15. Thus, from the aforesaid discussion of the evidence and in view of the facts and circumstances of the case, the prosecution has failed to prove its case beyond reasonable doubt against the appellant/accused Harish Ram and, therefore, the impugned judgment and order of trial court is not justified and correct in convicting and sentencing to the appellant Harish Ram and the same is liable to be set aside in respect of Harish Ram. 16. In the result, the appeal is allowed. The judgment and order dated 21.8.1998 passed by the 3rd Additional Sessions Judge, Nainital in Sessions Trial No. 171/1997, State v. Harish Ram & 3 Ors. is hereby set aside in respect of appellant Harish Ram only. Conviction of the appellant/ accused Harish Ram under Sections 379 IPC and Section 26 of the Act is hereby quashed and sentence awarded to him to undergo two years’ R.I. under Section 379 IPC and fine of Rs. 1,000/- and R.I. of six months’ under Section 26 of the Act is hereby set aside. The appellant is on bail. His bail bonds are cancelled. He need not surrender unless required in any other case. 17. Let the trial court record be sent back. PRABODH (Dharam Veer, J.) 28.4.2010