IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A. No.25/2001 Reserved on.6.12.2007 Decided on.1.1.2008 State of H.P. …Appellant. Versus Bhadur and others. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellant : Mr. M.A. Khan, Deputy Advocate General. For the respondent Mr. Rajesh Mandhotra, Advocate. Rajiv Sharma, J. The respondents were prosecuted in criminal case No. 27- 1/98/95 for offences punishable under sections 41, 42 and 43 of the Indian Forest Act read with section 379 of the Indian Penal Code in the court of Judicial Magistrate 1st Class, Manali and were acquitted on 24.7.1998. The State has filed this appeal against the acquittal of the respondents. The case of the prosecution is that a tractor bearing registration No. HIE 279 was noticed at about 6.30 P.M. on 11.8.1994 by ASI Hukam Chand. The police recovered 9 slippers in the dimension of 10’x10’’x5”, one gola measuring 8’x8”x8”, 4 processed planks of 10 feet length, 2 ‘Kaled’, 2 frames having dimensions of 10’x1 ½ “x4” and 3 karis of the size of 10’x3”x4 ½” without any TD hammer mark. The 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 name of the driver of the tractor was Prem Singh and another person was identified as Brikam Ram. Consequently ruka was sent to the Police Station pursuant to which FIR was registered under sections 41 and 42 of the Indian Forest Act. During the investigation it was revealed that on 9.8.1994 at the time of patrolling of forest C-III Beat Guard ‘Sarsai’ detected a freshly cut stump of a ‘Kail’ tree and he issued a damage report against unknown person. On 11.8.1994 when the forest department came to know about the seizure of the timber by the police at ‘Ranghri’ in a tractor No. HIE-279, the forest guard intimated concerned Range Officer and B.O. On this information on 13.8.1994 the forest officials raided the premises of respondent Bhadur Singh and found freshly processed 16 slippers of “kail” from the back side of the house of Bhadur Singh. The same were seized by affixing hammer mark K-72 and were handed over on sapurdari. Besides these 16 sleepers, 20 more slippers of “kail” and 12 sleepers of “deodar” were also found from the orchard of Bhadur Singh regarding which a damage report bearing No. 39/94 dated 13.8.1994 was issued against the accused. Consequently respondents No.2 and 3 were charged for offences punishable under sections 41, 42 and 43 of the Indian Forest Act and respondent No.1 Bhadur Singh was charged for offence punishable under section 379 of the Indian Penal Code. In order to prove its case, the prosecution examined as many as 9 witnesses. The respondents-accused were examined under section 313 of the Code of Criminal Procedure. The trial court acquitted the respondents on 24.7.1998, hence, this appeal against their acquittal. The learned Deputy Advocate General had strenuously argued that the prosecution has proved the case against the respondents- accused. 3 Mr. Rajesh Mandhotra, Advocate appearing for the respondent had supported the judgment dated 24.7.1998. I have heard the learned counsel for the parties and have gone through the record of the case. To prove the fact of recovery of total 27 slippers of timber of kail from the tractor/trolley at ‘Ranghari’, the prosecution examined Shri Uttam Singh as PW-1. He had admitted that in Ranghri village there are about 35-40 residential houses. He has further admitted that ASI Hukam Chand did not call for any independent witness from those houses. PW-2 Kiran Kumar, Ranger Officer, has expressed his ignorance regarding the ownership of the orchard from where the timber was recovered. He has admitted that the timber which had been recovered from the backyard of the house was visible from the road. Mr. Brijesh Kumar, Forest Guard, has admitted that he has not seen anybody felling the trees in respect of which the damage report was issued by him. He has also admitted that the timber kept behind the backyard of the house of the accused was visible from the road since the same had been kept in an open place around which 3-4 residential houses were also located. He has further testified that neither he nor Ranger Officer nor B.O. made any inquiry from any adult member of those residential houses regarding the ownership of the timber in respect of which the damage report Ex.PW-2/A and Ex.PW-2/C had been issued. The statements of PW-4 Sudershan Kumar and PW-5 Tashi Dorja are formal in nature. PW-6 Hem Singh has not supported the prosecution case and was declared hostile. Similarly, PW-7 was also declared hostile. So far as the recovery of the slippers from the house of Bhadur Singh is concerned, it is evident from the statements of the PWs that 4 the Forest Officials did not make any inquiry regarding the ownership from where the slippers were recovered. In the absence of any evidence to this effect the forest official could not come to the conclusion that the house from which the timber has been recovered belongs to Bhadur Singh. The timber was lying in an open place and there were other residential houses in the locality. Thus, the prosecution has failed to connect Bhadur Singh accused with the recovery of 16 slippers of kail from the backyard of the house. The trial court has rightly ignored the disclosure statement Ex.PW-1/F after examining the statement of PW-1 and Shri Heera Lal PW-7 minutely. The statements made by them are vague and contradictory lacking essential ingredients of section 27 of the Indian Evidence Act. Thus, in view of the statements made by the PWs, there is no legal evidence that 16 slippers of Kail were recovered from the backyard of the house of accused Bhadur Singh were in fact kept by him. As far as the recovery of 27 pieces of timber from the tractor/trolley are concerned, the statements made by PWs do not inspire confidence. PW-1 Udham Singh has nowhere stated in his statement that ASI Hukam Chand, Investigating Officer was accompanying him whereas the case of the prosecution is that the Investigating Officer Hukam Chand and HHG Dibe Ram had joined Uttam Chand at 15 miles. The timber recovered from the tractor was taken into possession vide recovery memo Ex.PW-1/A in the presence of PW-1 Uttam Singh and one Dibe Ram. Dibe Ram has not been produced by the prosecution. The prosecution has failed to give any explanation why independent witnesses were not joined during the course of investigation when the place where the tractor was intercepted there were 35-40 residential houses. The trial court after 5 going through the contents of Ex.PW-1/D and Ex.PW-1/G has rightly discarded memo Ex.PW-1/E for connecting accused Prem Singh and Bikram Ram with the commission of offence. The trial court after appreciating the evidence led by the prosecution has rightly acquitted the respondents/accused persons. In view of the observations made hereinabove, this Court will not interfere in the well reasoned judgment of the learned Judicial Magistrate 1st Class dated 24.7.1998 acquitting the respondent. The result of the above discussion is that there is no merit in the appeal and the same is dismissed. The bail bonds are cancelled and sureties are discharged. ( Rajiv Sharma), Judge January 1, 2008 *Awasthi*