Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.492 of 2004 Date of Decision: September 30, 2011. State of H.P. ……… Appellant. Versus Tara Chand and others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. P.M.Negi, Dy. Advocate General. For the Respondents : Mr. G.R. Palsara, Advocate. Surinder Singh, J(oral) : In Police Challan No.124-I of 2001 (1998), decided by the learned trial Court on 25.8.2004, the respondents were acquitted for the offence punishable under Section 379 of the Indian Penal Code, but convicted for the offence punishable under Sections 41 and 42 of the Indian Forest Act and each of the respondents sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of `500/- each and in default of payment of fine each of the respondents to 2 further undergo simple imprisonment for a period of one month, which has been challenged by the State in this appeal. 2. The matter was taken up for hearing on 22.7.2011, when Shri G.R. Palsara, learned counsel for the respondents brought to the notice of this Court that an appeal against the conviction was preferred by the respondents before the learned Sessions Judge and sought time to verify the conclusion thereof. The matter was heard on 12.8.2011 and the judgment was reserved. After hearing of the case on 15.9.2011, learned Deputy Advocate General placed on record the certified copy of Cr. Appeal No.12/2004 of 22.10.2005, whereby the learned Sessions Judge had dismissed the appeal of the respondents, maintaining the sentence passed by the learned trial Court. 3. On the perusal of the judgments of the Courts below, I found that both the Courts below lost sight of the fact that the alleged occurrence had taken place during the intervening night of 15th/ 16th February, 1998, for which the sentence is 3 double in case where the offence is committed after the sun-set or before the sun-rise, or after resistance to the lawful authority or where the offender has been previously convicted of like offence vide amended provisions of Rule 20 of H.P. Forest Produce Transit (Land Routes) Rules, 1978 framed under Sections 41 and 42 of the Indian Forest Act and under this rule even the penalty clause stands amended, which provides that if any person, who contravene these rules, shall be liable to imprisonment for a term which may extend to two years or with fine which may extend to `5,000/- or with both and the forest produce being transported may also be seized and dealt with under the provisions of the Indian Forest Act with the proviso added to it that it can be doubled if it is committed after sunset or before sunrise, as aforesaid. 4. The prosecution proved that the offence was committed after sunset and before sunrise, therefore, this Court on its own motion ordered to issue a notice of enhancement of sentence to the respondents. Learned counsel for the respondents 4 took notice and submitted his argument that the prosecution has failed to prove the case against the respondent in accordance with law. Learned counsel also led me through the evidence on record and further argued that the learned Courts below did not appreciate the evidence on record in the right perspective, which led to miscarriage of justice, as such respondents are entitled for acquittal. 5. Shri P.M. Negi, learned Deputy Advocate General in reply submitted that though in case of notice for enhancement in sentence, respondents can also plead for acquittal, but according to him, there are concurrent findings of facts against the respondents with respect to the guilt for the offences alleged and even otherwise if the evidence is gone through, it proves the case against each of the respondents beyond reasonable doubt, therefore, the sentence is required to be enhanced appropriately. 6. I have given my thoughtful consideration to the rival contention of the parties and have carefully re-examined the evidence on record. 5 7. In short, the facts giving rise to the present proceedings can be stated thus. During the intervening night of 15th/ 16th February, 1998, around 1.30 A.M., PW5 HC Dilu Ram alongwith PW6 LHC Durga Dutt, Prem Singh and other police officials had put a ‘Naqa’ at the place known as ‘Ganai chowk’. It was dark and they noticed respondents, who were nine in numbers, carrying some load on their shoulders. Police became suspicious about their movements and ‘gheraoed’ them. When the complainant HC Dilu Ram went nearer to them, he noticed that each of them was carrying wooden Karies on their shoulders. Out of aforesaid nine persons one (Gian Chand accused) taking the benefit of darkness threw the Kariies being carried by him on the spot and made escape, however, rest others eight in numbers, were apprehended. Shri Khem Chand accused died when the matter was still under investigation. 8. Police asked about their identity and took into possession 20 Karies vide memo Ext.PW3/A to Ext.PW3/I. 6 9. Respondents failed to produce the permission for transporting the aforesaid timber. They prepared site plan Ext.PW5/A of the place of alleged occurrence and sent Ruqa for the registration of the case under Section 379 of the Indian Penal Code and Sections 41 and 42 of the Indian Forest Act, which culminated into present FIR. 10. After completing the challan, it was presented in the court for the trial of the respondents. The respondents were accordingly charge-sheeted for the offence aforesaid. They pleaded not guilty and claimed trial. 11. To prove its case, prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon each of them were put to them. They took up the stand that the timber in question belonged to respondent Tara Chand to which he purchased from one Ghanshyam (DW1) the owner of the saw-mill. DW1 aforesaid stated that in the year 1997-98, Saw-mill 7 was in his name where his father used to work and sell the timber. The bill Ext.DW1/ B was issued by him. Bill (No.928) was issued by his father in the name of respondent Tara Chand and the timber shown in the said bill was sold by his father, who had died on 25.11.2000 and produced his death certificate Ext.DW1/A. In cross-examination, he admitted that there was no date mentioned in the bill. He also expressed his ignorance whether the saw-miller could sell the timber or that is father was having the permit to sell timber. He did not produce any document with respect to the permission of a Sale-Depot in his name or in the name of his father. He further stated that he was unable to give description of the timber, which was sold against the aforesaid bill. Address of Tara Chand was also not mentioned therein. Although, he denied that the said bill was fabricated to favour the respondents. 12. On the scrutiny of the aforesaid evidence, the defence so raised was rejected by the Courts below and believed the prosecution witnesses, as 8 such they were convicted and sentenced by the learned trial Court, which was upheld in appeal. 13. The complainant HC Dilu Ram PW5(A) has corroborated the prosecution case in totality. He stated that the respondents were carrying the wooden karies on their shoulders during the intervening night of 15th/ 16 February, 1998 and were apprehended on the spot as aforesaid. These karies were measured and taken into possession and the respondents failed to produce the permit, as such they were arrested on the spot. Respondent Gian Chand is alleged to have absconded from the spot, whose particulars were procured from other respondents and later apprehended. The details of the wooden karies from respondents, Het Ram are given in the seizure memo Ext.PW3/A, Gulab Singh in Ext.PW3/B, Lattu Ram in Ext.PW3/C, Tara Chand in Ext.PW3/D, Khem Chand in Ext.PW3/E, Udham Singh in Ext.PW3/F, Devi Ram in Ext.PW3/G, Gandhi Ram in Ext.PW3/H and the wooden karies to which respondent Gian Chand was carrying were seized by memo Ext.PW3/I in presence of HC 9 Dilu Ram and other police officials. During the trial, the aforesaid karies were exhibited as Exts.P1 to P20. These karies were handed over on supurdari to Forest Block Officer PW5 Darshan Kumar. He had assessed its value to the tune of `3,884/- to which he testified when examined in the Court. 14. PW5(A) HC Dilu Ram specifically denied in his cross-examination that the respondents had produced the bill of Saw-mill with respect to its purchase in the name of Tara Chand, whereas the prosecution story stands fully corroborated by PW6 HC Dugra Dass and PW3 C. Om Parkash. 15. The critical analysis of aforesaid evidence clearly establishes that the aforesaid wooden karies were being transported by the respondents without any valid permit during the intervening night of 15th/ 16th February, 1998 after the sunset or before the sunrise. Except Gian Chand, other respondents were arrested on the spot, later Gian Chand was also traced and arrested in this case. As already stated above, their plea is that the wooden karies were purchased by respondent Tara Chand from the father of DW-1 Ghanshyam, 10 who is stated to have been died in the year 2000 and the bill, as discussed above appears to be a fabricated document. Thus, in other words, the respondents have not denied its transportation at all. Learned trial Court disbelieved the defence version that there was no mention of date on the said bill nor there is detail of the timber alleged to have been sold against this bill, therefore, the Karies which were recovered from the respondents does not stand connected with the bill aforesaid. There is also nothing on record to show that either DW1 Ghanshyam or his father Som Dutt have any permission to sell the timber and otherwise also the respondents have not denied that they were not carrying the timber in question during the night, but as already stated above that the timber belongs to Tara Chand respondent. The purchase of the said timber by Tara Chand by legal means does not stand established, therefore, there is no escape from the fact that the case for the illicit transportation of timber aforesaid timber stands proved against each of the respondents, which is a 11 contravention of Rule 11 of the H.P. Forest Produce Transit (Land Routes) Rules, 1978 framed under Section 41 and 42 of the Indian Forest Act, which provides that no person shall transport or cause to be transported any forest produce except Kuth or forest produce obtained from Poplar Albizzia, Willow, Bahunia, Eucalyptus and Mulberry by land routes, without obtaining pass from the concerned Divisional Forest Officer or any Forest officer so authorized, which is punishable under Section 20 of the aforesaid Rules. Since the offence was committed after the sunset or before the sunrise, therefore, the penalty under the said Rules is double. Thus, the respondents were rightly held guilty and convicted by the Courts below. 16. On the point of sentence, Shri G.R. Palsara, learned counsel for the convicts- respondents submitted that the alleged offence was committed in the year 1998. They were convicted and sentenced by the learned trial Court on 25.8.2004 and were sentenced till rising of the Court and to pay a fine of `500/- each and 12 in default to further undergo simple imprisonment for a period of one month, which sentence was affirmed in appeal. The fine amount stands deposited and they have also undergone the sentence till the rising of the Court. 17. I have considered the above arguments. There is no case of the prosecution that the respondents are the previous convicts or that they offered the resistance to the raiding party, but it stands proved that during the intervening night, they were transporting the aforesaid wooden Karies illegally, the value of which was less than `4,000/-. 18. The illicit felling of the timber in the State is rampant in the State and there should not be a flee bite sentence on misplaced sympathies, thus the penalty/ sentence should be deterrent, but keeping in view the value of the property and also the fact that the incident in question had taken place more than a decade ago, the interest of justice would be met in case the fine is enhanced to `5000/- each. Since they have deposited the amount of `500/- in the learned trial Court as 13 stated by the learned counsel for the convicts, the balance amount of `4,500/- shall be deposited by each of the convicts on or before 16.11.2011, failing which each of the convicts shall undergo simple imprisonment for a period of two months and the learned trial Court shall take coercive steps to commit the convict defaulter(s) to imprisonment as aforesaid. The matter stands disposed of. 19. Send down the records with an authenticated copy of this judgment. September 30, 2011. (Surinder Singh) (Pds) Judge.