IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 127 of 2004 Date of decision: 05.10.2010 State of H.P. ... Appellant Versus Raj Kumar and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondents: Mr. Praveen Kumar, Advocate, vice Mr. OnKar Jairath and Mr. Ajay Sharma, Advocates. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Amb, District Una, dated 24.11.2003, vide which the respondents were acquitted of the charge framed against them under Section 379 I.P.C. and under Section 41 read with 42 of Indian Forest Act. 2. Briefly stated, the facts of the case are that on 30.8.1997 PW-14 Khoob Ram, the then Additional S.H.O., Amb, was present in the area for patrolling alongwith other officials of Forest Department and police. At about 6.00 A.M., he received a secret information and intercepted vehicle No. HPY-1292 and found that three persons were 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 loading logs of Khair in the vehicle, who were Raj Kumar, Kewal Krishan and one Arvind. One person ran away from the spot. On checking of the vehicle, 3 logs were found in the vehicle and 7 logs of Khair were lying at some distance. One Scooter No. HP-20-7220 was also standing therein and the vehicle and scooter were taken into possession including logs of Khair trees lying nearby. These were taken into possession. A case was registered and after investigation, the challan was filed as against the respondents, who were tried by the learned trial Court leading to the acquittal of the respondents. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the evidence led by the prosecution, which consists of statements of 15 witnesses, it is clear that the Incharge of the raiding party was PW-14 Khoob Ram, Additional S.H.O., Police Station, Amb, who received a secret information and intercepted the vehicle and effected the recoveries. He prepared a report Ext. PW14/A and sent it to the police for registration of the case. He nowhere stated in his statement that he took the vehicle and logs in possession vide recovery memo Ext. PA in presence of the witnesses. He has not made a reference at all to the recovery memo and has not even stated that he associated Gurbachan and Roshan Lal witnesses at that time. Their signatures are there on recovery memo. He simply stated that he prepared report Ext. PW14/A, sent the same to the Police Station and prepared site plan Ext. PW14/B. Thus, the recovery memo in question has not been proved by the Investigating Officer himself. 5. Out of the two witnesses, who are witnesses to the recovery memo Ext. PA, the prosecution had examined PW-2 Roshan 3 Lal, who stated that in then year 1997 one van was standing by the side of the road, in which there were 4 logs of Khair. PW-14 Investigating Officer had stated that these were three logs of Khair and not 4, as stated by the witness. He stated that the van was checked by the police and forest officials and these were taken into possession vide recovery memo Ext. PA and the scooter standing there, was also taken into possession. In cross-examination, he has stated that he had gone himself to the spot and the van was intercepted at 3.00A.M., whereas the Investigating Officer PW-14 Khoob Ram has stated that he received a secret information at 6.00 A.M. and thereafter intercepted the vehicle. This witness has stated that he had reached the spot at 3.30 A.M. and at the spot Deputy Ranger and accused persons were already standing there. In case the forest officials and others were standing already at 3.30 A.M., there was no occasion for the Investigating Officer to intercept the vehicle on 6.00 A.M., as stated by him. He stated that he does not remember the van number. He did not state about the names of the persons who were intercepted at that time along with the van. He further stated that the police officials and the forest officials came afterwards, meaning thereby the van was never intercepted in his presence. He further stated that the forest officials had called the police officials and there were two officials from the Forest Department and there were 4 officials of the police at that time. He stated that he did not disclose the name and the vehicle number at that time. He learnt the names of the accused at the spot, but none of these were named by him nor they were identified by him. He did not state even the date when the van was intercepted and the recoveries were effected. He stated that the 4 accused were apprehended at 3.00 A.M., whereas the Investigating Officer PW-14 had stated that he received a secret information at 6.00 A.M. and thereafter, intercepted the van. 6. PW-4 Ashwani Kumar is the Forest Guard, who has stated that he alongwith other officials were present on 30.8.1997 and one vehicle standing by the road side was checked in which there were 3 logs, which were recently cut and the accused persons were loading the logs in the vehicle. He stated that on interrogation, the names of those persons were learnt as Ravinder, Kewal Krishan, Raj Kumar and Ashok Kumar, but he never identified the accused persons in Court. Therefore, the identity of the accused persons, who were also intercepted at that time, was not established. He further stated that the accused are the same persons who were intercepted at that time, but there is nothing on record to show that how he identified the accused persons and he had learnt the names on their interrogation only. He further stated that 7 logs of Khair were lying at some distance from the vehicle, but according to the Investigating officer, 4 logs were lying at some distance from the vehicle. He nowhere stated, as stated by PW-14 that one of the accused had ran away from the spot. 7. Apart from the above, it is also clear from the perusal of the evidence that the prosecution had also examined 4 independent witnesses at that time, i.e. PW-1 Gurbachan Singh, PW-3 Ranjeet Singh, PW-6 Ram Pal and PW-10 Rajender Kumar, who had not supported the prosecution and they were declared as hostile. The 5 material document on record was recovery memo prepared by the Investigating Officer, but the Investigating Officer himself had no where stated in regard to the recovery memo Ext. PA prepared by him as to who were the witnesses as has been discussed above. 8. PW-2 Roshan Lal, one of the witnesses to the recovery memo has been examined, but in view of the contradictions in his statement and that of the Investigating Officer, which contradictions are material and the fact that the accused were not identified properly at that time, their identity cannot be said to have been established, which is also clear from the above minor contradictions in the statements of the witnesses, who are official witnesses, and such minor contradictions become irrelevant once the independent witnesses produced by the prosecution as discussed above, have not supported the prosecution case. The statements of both the witnesses were not corroborated by other witnesses to the recovery memo Ext. PA, who were examined but had turned hostile. 9. It is, therefore, clear from the above discussion that the guilt of the respondents or their identity was not established beyond any reasonable doubt and there was material contradictions in the statements of two official witnesses examined by the prosecution to substantiate their case and, therefore, the guilt of the respondents cannot be said to have been established. The findings recorded by the learned trial Court in view of the evidence led by the prosecution cannot be said to be perverse calling for an interference by this Court. 6 10. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondents shall stand discharged. ( V.K. Ahuja ), October 05, 2010 Judge (BSS) 7