IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 534 of 2004. Judgment reserved on: 25.7.2011. Decided on: July 27, 2011. _____________________________________________________ State of H.P. ……..Appellant. Versus Tenjin Chhewang and others. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Assistant Advocate General. For the respondents : Mr. Jagdish Vats, Advocate. SURINDER SINGH,J. : Respondents were acquitted by the learned trial Court for offences punishable under Sections 379 of the Indian Penal Code read with Section 41 and 42 of the Indian Forest Act and Rule 20 of the H.P. Forest Produce and Transit (Land Route) Rules,1978, for felling of two trees of Deodar and illegally transporting its converted timber in 58 scants by Tempo No.HP-27-0999, as such, the State felt Whether reporters of the Local papers are allowed to see the judgment? - 2 - aggrieved by the impugned judgment passed by it in Criminal Case No.85-2 of 2001on 8.9.2004, thus, preferred the present appeal. 2. The case of the prosecution is that on 10.10.2001, PW3 SI Atma Ram was the Incharge of Police Check-Post, Lippa. At about 4.30 A.M., he was present in the said Check-Post alongwith PW14 Constable Basu Bandhu and PW16 Home Guard Constable Arun Dev. The Tempo aforesaid came from the side of Reckong-Peo, which was going towards Pooh. It was being driven by respondent Tenjin Chhewang. It stopped at the said Check- Post for entry, the driver came to the Check-Post, he disclosed that the Tempo vehicle was loaded with grass, but on checking of the said vehicle, it was found to have 58 scants of Deodar, which were kept concealed under the dry grass. PW3 SI Atma Ram also noticed respondents Govind Singh and Vidya Chand sitting in the tempo cabin but none of them could produce the valid documents to transport the timber aforesaid. 3. Ruqa Ext.PW3/A was sent for the registration of the case. Thereafter, investigation was taken up by - 3 - PW17 ASI Bhikham Ram of Police Post Moorang. The timber was taken into possession vide recovery memo Ext.PW1/A in the presence of PW1 Roop Singh and PW2 Sonam Deva. Site plan of the recovery was also prepared. Vehicle in question was also taken into possession. The Scants of the Deodar were handed over to PW6 Asha Puran, Block Officer on supurdari vide memo Ext.PW1/B. The measurement of the timber was done by said Block Officer and he prepared the memo Ext.PW5/A and also put his seizure hammer mark, the copy of which is Ext.PW5/B. On 12.10.2001, the respondents were arrested. 4. During the custody of police, the respondents on 12.10.2001, are alleged to have made confessional statement Ext.PW4/A in the presence of PW4 Vinod Kumar and PW5 Rajesh Kumar and identified the place in the Forest Compartment No.190 from where two trees of Deodar were allegedly felled. A memo Ext.PW4/B to this effect was prepared. Police also recovered Saw Ext.P1, Axe Ext.P2 and Cutter Ext.P3 and were taken into possession vide memo Ext.PW4/C. - 4 - 5. During the investigation, police also obtained the revenue papers of the Forest in question and further took the extract of the register of Police Check-Post, where the entry was made, which is Ext.PW11/B. Police also took photographs of the Tempo in question. The timber and the vehicle in question were allegedly produced before the prescribed authority for its disposal in accordance with law. The challan after its completion was presented for the trial of the respondents. 6. The respondents were charge-sheeted, tried and acquitted for the offences aforesaid, on the ground that the witnesses of the recovery did not support the case of the prosecution and there have been material contradictions in the statements of the official witnesses. 7. Shri J.S. Guleria, learned Assistant Advocate General for the State vehemently argued the learned trial Court did not appreciate the evidence in the right perspective. Its reasoning is manifestly unreasonable and unsustainable. He also pointed out that the statements of PW4 Vinod Kumar and PW5 - 5 - Rajesh Kumar are very relevant in the present context which were conveniently ignored. 8. Contra, Shri Jagdish Vats, learned counsel for the respondents supported the impugned judgment of the learned trial Court. 9. PW4 Vinod Kumar stated that he was called by the police on 12.10.2001 in the Police Station. At that time, respondents were in the custody of the police. They are stated to have made statement Ext.PW4/A confessing their guilt and further stated that they could point out the place of alleged felling of the trees. PW4 Rajesh Kumar also made the similar statement and pursuant to that they are alleged to have pointed out the place from where the alleged felling of trees was made. 10. Sections 24, 25 and 26 of the Indian Evidence Act mention the validity and relevancy of the confession. What has been prohibited under Section 25 of the Evidence Act is a confession made to the Police Officer during investigation is inadmissible to the evidence with respect to the offences charged and the said confession by the accused while in police custody is not required to be proved against - 6 - him under Section 26 of the Indian Evidence Act. The statement which is made during the investigation in the police custody, shall be relevant under Section 27 of the Indian Evidence Act only on the existence of the following elements:- (a) that any fact has been discovered; (b) the said fact has come into existence after the information of the accused; (c) person giving information should be charged of any offence and he should be in police custody for the same charge; and (d) information should be clearly related with the facts recovered. 11. Thus, the first essential element for application of Section 27 is discovery of any fact from any information given by the accused before police. If as a result of said information if any thing related to fact in issue is not recovered by the police then this section will not apply. 12. In the instant case, disclosure statement Ext.PW4/A under Section 27 of the Indian Evidence Act is also in the form of confession which is inadmissible, further it a joint statement of respondents Vidya Chand and Govind Singh, with - 7 - respect to the pointing of the place, but Section 27 of the Evidence Act does not take into account the joint statement which is made by more than one person in case of commission of the crime. There is nothing on record to show that which of the accused had given information first in time which can otherwise be made admissible in evidence. Therefore, in the instant case, the alleged statement Ext.PW4/B is hit by Section 25 of the Indian Evidence Act and is also not admissible as an evidence even of recovery and pointing out the place as it fell short of the requisite element of Section 27 of the Indian Evidence Act. Therefore, statements of PW4 Vinod Kumar and PW5 Rajesh Kumar aforesaid coupled with the statement of Investigating Officer are of no consequence to prove the charge of theft against the accused persons, in absence of other cogent and reliable evidence. 13. Insofar as the evidence with respect to the transporting of timber in the Tempo in question by respondent Tenjin Chhewang is concerned, even that could also not be proved by the prosecution by leading a reliable evidence. - 8 - 14. PW1 Roop Singh was Constable driver in the department of SSB and PW2 Sonam Deva was posted as Home Guard Constable on the Check- Post. Both these persons are the witnesses of the recovery, who have also signed the recovery memo Ext.PW1/A. Both of them did not support the case of the prosecution, as such they were declared hostile. 15. According to PW1 Roop Singh he was posted in Sakling. He parked his vehicle outside the Police Post and stayed for the night in the Tent. Police contacted him at about 8/9 A.M. He was called to the Police Check-Post. He did not see the respondents in the said vehicle. He further stated that the vehicle was not searched in his presence. He specifically stated that Sleepers were lying on the side of the National Highway No.22. There was nothing in the said Tempo nor any recovery was effected from the possession of the respondents. He also admitted that about 20/25 persons were present on the spot at that time. 16. PW2 Sonam Deva was a Home Guard Constable posted at the said Check-Post. In cross- examination, he contradicted his version given in examination-in-chief and admitted that the sleepers - 9 - were lying on the road from where these were recovered. He also admitted the presence of 20/25 persons on the spot at the time of its recovery. He categorically stated that the respondents were not travelling in the said vehicle, even there is no specific suggestion by the prosecution nor there is any specific averment with respect to respondent No.1, being its driver. 17. The critical examination of the above witnesses do not clearly establish that the respondents were either transporting the above timber in the said vehicle or have caused it to be transported, as alleged. Further the interception of the truck at 4.30 a.m. has also become doubtful as the witness of recovery have stated that they were associated around 8/9 A.M. by the police during the investigation. 18. PW3 SI Atma Ram, Incharge of the Police Check-Post though tried to corroborate the prosecution version and stated that the sleepers in question were counted in the presence of PW1 and 2 aforesaid, but he did not say having prepared the recovery memo of alleged timber in the presence of the aforesaid - 10 - witnesses nor made any statement with respect to sending of Ruqa for the registration of the case, but only stated that the Investigating Officer PW17 ASI Bhikham Ram visited the spot and took up the investigation. Further the prosecution has failed to prove that PW3 Atma Ram was at any point of time was the Incharge of the Police Check-Post and admittedly no Roznamacha was placed and proved to the aforesaid effect. He also did not prepare any list of the case property. PW17 ASI Bhikham Ram admitted that the entries are made in the register with respect to the duty of the Police Officers/officials at the said Check-Post and its relied is also maintained in the daily diary. 19. The critical analysis of the aforesaid evidence does not clinch the matter with respect to the complicity of the respondents with the alleged crime beyond doubt. The witnesses of the document of the recovery Ext.PW1/A prepared by PW17 ASI Bhikam Ram on the spot have materially contradicted the case of the prosecution, as aforesaid. The respondents suggested to the Investigating Officer though denied that one Dev was the driver who fled - 11 - away from the spot and that when the entire proceeding was carried out about 20/25 persons were present on the spot. 20. Learned trial Court rightly came to the conclusion from the evidence on record that prosecution failed to link the respondents with the recoveries and in view of the aforesaid conflicting evidence and also for want of corroborative material even the evidence of the official witnesses which is contradictory cannot be relied upon. Therefore, the impugned judgment of acquittal passed by the learned trial Court cannot be interfered with, as the findings of acquittal are based upon the evidence on record. Appeal sans merit and is accordingly dismissed. 21. The respondents are discharged of their bail bonds entered upon by him during the proceedings of the case. Send down the records. (Surinder Singh), July 27, 2011. Judge. (Pds)