IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 131 of 2004 Judgment reserved on : 19.8.2011 Date of decision: 21.9.2011 Brikam Ram …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. M.S.Guleria, Advocate. For the Respondent. Mr. J.S. Rana, Assistant Advocate General. __________________________________________________________ Kuldip Singh, Judge The conviction and sentence recorded by the learned Additional Chief Judicial Magistrate, Sarkaghat of petitioner on 3.7.1999/9.8.2002 in Complaint No. 162-1/96(109-II/96) and affirmed by the learned Presiding Officer, Fast Track Court, Mandi on 9.7.2004 in Criminal Appeal No. 21/2002,59/2004 has been assailed by the petitioner in the revision. 2. The prosecution case in brief is that on 1.10.1995 the __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 forest officials PW-1 Mehar Chand, PW-6 Narpat Ram and PW-7 Nand Lal were present at Bhambla Check Post on checking duty. At about 9.30 P.M., bus HID-1503 of 3rd Battalion Pandoh came there. The bus was stopped, checked and it was found carrying 8 planks of deodar, 3 frames of deodar, 25 frames of walnut, 16 pawe (wooden legs of cots) and 18 frames of Rai/Tosh. The bus was being driven by the petitioner. He could not produce any permit, authorization for carrying the aforesaid forest produce. The damage report was prepared by Forest Guard and the forest produce was taken into possession and handed over on sapurdari to PW-5 Hem Raj. 3. The petitioner made confessional statement before the Forest Guard in the presence of PW-2 Dharam Pal and Mehar Chand that 11 scants of deodar belonged to him whereas the other timber belonged to Hirda Ram, co-accused. On these allegations, complaint under Sections 41, 42, 52-A of the Indian Forest Act was filed in the Court. The learned trial Magistrate on 31.12.1996 found sufficient material to frame charge against both the accused for offences punishable under Sections 41, 42 (2) and Section 52-A of the Indian Forest Act. The order dated 31.12.1996 was assailed by Hirda Ram accused in Criminal Revision No. 6 of 1997 before the learned Sessions Judge, Mandi, who vide judgment dated 24.9.1997 set-aside the order dated 31.12.1996 so far taking cognizance under Section 52-A of the Indian Forest Act was concerned. The learned Sessions Judge remanded the case. After 3 remand on 25.11.1997 notice of accusation for violation of Rules 5, 11 punishable under Rule 20 of the H.P.Forest Produce Transit (Land Routes) Rules, 1978 (for short ‘Rules’) framed under Section 41, 42 of the Indian Forest Act, 1927 was put to both the accused. The accused denied the accusation. The prosecution has examined seven witnesses to prove its case. The statements of accused were recorded under Section 313 Cr.P.C. They examined five DWs and tendered some documents in evidence. 4. On conclusion of trial, the learned trial Magistrate on 3.7.1999 convicted both the accused for violation of Rules 5, 11 punishable under Rule 20 of the H.P.Forest Produce Transit (Land Routes) Rules, 1978 framed under Sections 41 and 42 of the Indian Forest Act and both the accused were sentenced to undergo simple imprisonment for six months each and fine of `2,000/- each. In default of payment of fine, both the accused were directed to go simple imprisonment for one month each. 5. The petitioner assailed the judgment of conviction and sentence dated 3.7.1999 by filing appeal. On 26.3.2002, the learned Sessions Judge accepted the appeal and remanded the case with the direction to the learned Magistrate to consider the question of giving of benefit of probation to the accused. The learned Magistrate on 9.8.2002 sentenced both the accused to pay fine of `.5,000/- each and in default of payment of fine to undergo imprisonment for two months each. 4 6. The petitioner filed Criminal Appeal No. 21/202, 59/2004 and co-accused Hirda Ram filed Criminal Appeal No. 20/2002, 58/2004 against judgment of conviction and sentence dated 3.7.1999/9.8.2002. The appeal of Hirda Ram accused has been accepted and that of the petitioner has been rejected by the learned Presiding Officer, Fast Track Court, Mandi by common judgment dated 9.7.2004, hence this revision by the petitioner. 7. I have heard Mr. M.S.Guleria, Advocate, learned counsel for the petitioner and Mr. J.S.Rana, Assistant Advocate General for the State and have also gone through the record. It has been submitted on behalf of the petitioner that the two Courts below have mis-construed and mis-interpreted the evidence on record in convicting and sentencing the petitioner. The complaint was filed by Assistant Conservator of Forests, Sundernagar Forest Division but he was not examined by the prosecution and, therefore, adverse inference is to be drawn against the prosecution. The petitioner at the relevant time was driver of the bus. There is no vicarious liability in criminal law. The alleged damage report Ex.PW- 7/A and statement Ex.PW-2/A made before forest officials/police are inadmissible in evidence. The case property was not produced in the Court. The learned Assistant Advocate General has supported the impugned judgment. He has submitted that the criminal law can be put into motion by anybody and thereafter offence is required to be proved which in the present case has been proved. The evidence in 5 revision cannot be re-appreciated. He has prayed for dismissal of the revision. 8. PW-1 Mehar Chand has stated that on the roof of the bus there were 8 planks of deodar and 3 frames. Inside the bus, there were 18 frames of Rai/Tosh and 25 frames of walnut, 16 pawe and 500 slates. The petitioner was driver of the bus who disclosed that 11 planks belonged to him whereas slates and frames belonged to Hirda Ram. He was not shown the case property. PW-2 Dharam Pal did not support the prosecution and he was declared hostile. He, however, admitted his signatures on Ex.PW-2/A, Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D. PW-4 Sukh Ram, Head Constable has stated that when the bus was checked on 1.10.1995 then some wood was found, some of it was fuel wood, some timber, a few frames, some deodar pieces and frames which were of Brikam Ram and Hirda Ram. He however, stated that he was not aware how much timber belonged to driver and how much to Hirda Ram. 9. PW-6 Narpat Ram, Forest Guard has stated that when the bus was checked then 11 pieces of deodar were found under the back seat which Brikam Ram said belonged to him, rest of the timber was stated to be of Hirda Ram. The timber was in the form of pawe, frames, slates were also found. The accused could not produce any permit. He prepared damage report Ex.PW-6/A which bears his signatures. Brikam Ram told that except 11 deodar slippers, rest of the timber belonged to Hirda Ram. 6 10. PW-7 Nand Lal, Deputy Ranger has stated that on 1.10.1995 he was posted as Deputy Ranger Forest Check Post, Bhambla. The bus HID-1503 was checked and it was found carrying deodar slippers (pieces), 8 planks on the roof and 3 frames of deodar, 18 frames of Rai/Tosh, 25 frames of walnut, 16 pawe of walnut and slates. Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D were prepared on the spot. He has stated that Brikam Ram told that incharge of the bus was Hirda Ram. 11. The defence has examined 5 DWs. DW-1 Ghambir Singh has stated that Hirda Ram told that while coming to Pandoh carry his articles also. DW-2 Rewat Ram has also stated that Hirda Ram has stated that 4 pawe, a few frames, some wooden pieces and slates were to be taken back. DW-3 Surjeet Singh has stated that Hirda Ram got prepared one cot, he and Rewat Ram dismantled the cot. It was packed in a gunny bag in which 4-5 pieces of wood were also packed. Hirda Ram asked Rewat Ram to take said articles to Pandoh. 12. Ex.PW-2/A is the statement dated 1.10.1995 of Brikam Ram in which he has stated that Hirda Ram had directed him that while carrying the goods of mess to Pandoh carry his articles also to Pandoh. He had purchased 4 pieces of deodar while going to Chamba and while returning after sawing those pieces were kept inside the bus. He has stated that 11 pieces belonged to him and rest of the articles were of Hirda Ram. Ex.PW-7/A is the damage report. Ex.PW-2/C is the sapurdarinama of 11 deodar pieces, 8 7 deodar planks, 3 deodar frames, 18 frames of Rai/Tosh, 25 walnut frames and 16 pawe. Ex.PW-2/B is the recovery memo of 11 deodar pieces, 8 deodar planks, 3 deodar frames, 18 frames of Rai/Tosh, 25 walnut frames and 16 pawe. 13. In the statement under Section 313 Cr.P.C., the question was put to Brikam Ram that it has come in evidence that on search of the bus 18 frames of Rai/Tosh, 25 frames of walnut, 16 pawe and slates were found inside the bus. Brikam Ram has stated that he was carrying the goods in accordance with the directions of Hirda Ram. Brikam Ram has denied that he has given any confessional statement that 11 pieces of deodar which were found on the roof of the bus belonged to him, while the articles recovered from inside the bus belonged to Hirda Ram. He has stated that on Ex.PW-2/A his signatures were taken forcefully. 14. The petitioner and Hirda Ram were prosecuted, both of them were convicted and sentenced by the trial Court but the learned Presiding Officer, Fast Track court acquitted Hirda Ram. It emerges from the evidence on record that when the bus was checked on 1.10.1995 at Bhambla Forest Check Post at that time petitioner was driving the bus. The recovery of forest produce either from the roof or inside the bus has not been denied by the petitioner, not only this, the factum of recovery of forest produce at the time of checking of the bus has been proved by PW-1 Mehar Chand. PW-2 Dharam Pal even though did not support the prosecution but he admitted his signatures on recovery memo Ex.PW-2/B of the forest 8 produce. The petitioner initially took stand that only some of the forest produce belonged to him and rest of the forest produce was of Hirda Ram. 15. The Rule 5 prohibits transportation of forest produce without imprint of the registered mark, Rule 11 provides that no person shall transport or cause to be transported any forest produce by land routes without obtaining pass. The Rule 20 makes the contravention of rules punishable. It has been submitted that the bus in question was not under the control of the petitioner, he was simply a driver and he was to drive the vehicle as per the directions of the authorities. No doubt, the petitioner was bound to comply the orders of the authorities but at the time of actual driving the bus, it cannot be said that the bus was not under his control. The petitioner being the driver of the bus was supposed to drive the vehicle and carry the articles/goods in the vehicle not in violation of law. Therefore, the contention that at the time of checking of the bus, the vehicle was not under the control of the petitioner is rejected. 16. It has been contended that damage report Ex.PW-7/A and statement of petitioner Ex.PW-2/A are inadmissible as these documents were prepared by forest officials/police. The learned counsel for the petitioner has relied State of H.P. vs. Tara Chand and others 1994 (4) SLJ 3333 wherein it has been held that confessional statement of accused in the shape of damage report and ikbalnama recorded by forest officials, who enjoy the powers of police officials are hit by Section 25 of the Indian Evidence Act. 9 However, even if damage report Ex.PW-7/A and statement of petitioner Ex.PW-2/A are excluded still it does not improve the case of the petitioner inasmuch as there is other evidence on record in the form of statements of PW-1 Mehar Chand and PW-2 Dharam Pal that at the time of checking of the bus No. HID-1503 on 1.10.1995 which was being driven by petitioner forest produce was recovered from the bus vide recovery memo Ex.PW-2/B. It is not the case of the petitioner that no forest produce was recovered when the bus was checked, rather the case of the petitioner is that only a portion of the forest produce belonged to him and rest of the forest produce belonged to Hirda Ram. It is not the case of the petitioner that the forest produce was bearing registered mark and he was having pass to transport the forest produce. The petitioner had the conscious knowledge of forest produce recovered from the bus. 17. The learned counsel for the petitioner has submitted that not even a sample of the case property has been produced in the court during trial and therefore, recovery of forest produce cannot be relied. In support of this contention, the learned counsel for the petitioner has relied Niranjan Panja vs. State of West Bengal 2010 (3) Criminal Court Cases 1 (SC). It appears in ‘Niranjan Panja’ weapon of offence was lost. The High Court in that case relied upon the discovery made in the absence of ‘Siuli Katari’ (weapon of offence) and recorded under Section 27 of the Indian Evidence Act which was not upheld by the Supreme Court. Niranjan Panja is not applicable in the facts of the present case inasmuch as 10 in that case recovery of weapon of offence was based upon disclosure statement under Section 27 of the Indian Evidence Act which was not produced in the Court. In the present case, no recovery has been made on the basis of disclosure statement under Section 27 of the Indian Evidence Act. In State of H.P. vs. Vinod Kumar 1997 Cr.L.J. 3077 (H.P.) it has been held that mere failure to produce the case property is not fatal to the prosecution case. 18. It has been submitted that Assistant Conservator of Forests had filed the complaint in the court and on that basis, the petitioner and the co-accused were prosecuted, but the complainant has not been examined, therefore, submission has been made to draw adverse inference. It is nobody’s case that the Assistant Conservator of Forests, who filed the complaint, was present on the spot when the bus No.HID-1503 was checked and forest produce was recovered. The relevant witnesses have been examined. The quality of the evidence is to be considered and not the quantity. The number of witnesses does not matter, what matters is the quality of evidence. In the facts and circumstances of the case, there is no substance in the contention that adverse inference is to be drawn in absence of examination of the Assistant Conservator of Forests, who actually filed the complaint in the Court. 19. The learned Assistant Advocate General has submitted that the two Courts below have rightly appreciated the material on record including the defence evidence. The re-appreciation of the evidence is not possible in view of limited scope in revision. He has 11 relied Raj Kumar vs. State of Himachal Pradesh 2000 (2) SLC 422 in support of this contention. In ‘Raj Kumar’ several judgments of the Supreme Court including State of Kerala vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 have been noticed and it has been held that ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. This however is not the situation in the present case. The view taken by the two Courts below emerges from the evidence on record. It is not a case of perverse judgment. The Courts below have already taken lenient view while imposing sentence. No case for interference is made out, resultantly, the revision fails and is dismissed. September 21, 2011. ( Kuldip Singh ), (GR) Judge.