Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.584 of 2004 Judgment reserved on:1.8.2011. Date of Decision: August 18th , 2011. State of H.P. ……… Appellant. Versus Dinesh Kumar and others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. A.K.Bansal, Addl. Advocate General. For the Respondents : Mr. G.R. Palsara, Advocate. Surinder Singh, J : The State has challenged the acquittal of the respondents passed by the leaned trial Court in Police Challan No.310-I of 2001, decided on 30.9.2004 for the offences punishable under Sections 41 and 42 of the Indian Forest Act and Section 379 read with Section 34 of the Indian Penal Code, hence the appeal. 2. In short the prosecution story as emerges from the evidence can be stated thus. PW1 Krishan Ram was a Block Officer, posted at Bassa. During the intervening night of 13th and 14th April, 2 2000, he was present at Kharsi road alongwith Beat Guard Narender Parkash, Chamba Ram, Prem Singh and Tek Chand, Forest workers. Around 1.30 a.m., Vehicle No.HP-32-0579 came from the opposite site being driven by respondent Pushp Raj. Besides driver, there were five more occupants namely, Dinesh Kumar, Gopal Singh, Narinder Singh (dead), Hari Singh(dead) and Daya Ram. The vehicle was stopped. It contained 15 scants of Deodar. Respondents were asked to produce the permit or any valid document to transport the timber, but they failed to produce it. The timber in question also did not have any hammer mark. Aforesaid timber was unloaded and accordingly measured. 3. Police was informed telephonically. The Investigating Officer recorded the statement Ext.PW1/A of PW1 Krishan Ram Block Officer under Section 154 of the Code of Criminal Procedure and Ruqa was sent for the registration of FIR. The aforesaid scants were taken into possession by police alongwith vehicle in question. Out of 15 scants 14 were given on supurdari to PW1 3 aforesaid and one was kept as an evidence. Memo Ext.PW1/B was prepared to this effect. The timber in question was converted in cubic meters by the Block Officer aforesaid, Memo to this effect is Ext.PW1/C and handed over to the police. 4. Site plan of the place of alleged recovery Ext.PW12/B was prepared, statements of the other witnesses were recorded and the challan after completion was presented in the Court for the trial of the respondents. They were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial. 5. During the trial, respondents Narinder Kumar and Hari Singh died, hence vide order dated 24.5.2003, the proceedings against them were dropped by the learned trial Court. 6. To prove its case, prosecution examined its witnesses and respondents were also examined under Section 313 of the Code of Criminal Procedure. They denied the circumstances which were found attendant upon each of them, but from the trend of cross-examination, they appeared to have taken up the defence that the 4 vehicle in question was not carrying any timber and it was empty, rather the forest officials wanted to take “Bagar” to which they denied, therefore, implicated in a false case. Respondents did not lead any evidence in defence. 7. At the end of trial, respondents were acquitted, by the learned trial Court, on the ground that the prosecution could not prove the guilt qua committing theft of 15 scants of Deodar and also its transportation by them and for want of non-associating independent witnesses from the nearby inhabited area. 8. Shri A.K.Bansal, learned Additional Advocate General vehemently argued that the prosecution has been able to prove the case under Section 41 and 42 of the Indian Forest Act, if not under Section 379 of the Indian Penal Code by leading cogent and convincing evidence. He also ventilated that there was no independent witness available at the time when the vehicle in question was intercepted by the forest officials, it was a dead of night, thus it was not possible to include any of the independent witness, otherwise 5 also, it is not the requirement of law that they must be included. The official witnesses inspire confidence, but their testimonies were wrongly disbelieved. 9. Contra, Shri G.R. Palsra, learned counsel for the respondents vehemently argued that there have been contradictions in the statements of the prosecution witnesses and there is no cogent explanation with respect to non-association of the independent witnesses. He supported the impugned judgment of acquittal. 10. PW1 Krishan Ram, Block Officer has corroborated his version as given in statement Ext.PW1/A with respect to interception of vehicle in question and recovery of 15 scants from the possession of the respondents which were not having the hammer mark nor the respondents produced a valid permit/ document. Though, he admitted that when the forest Naqa party proceeded to the spot, they came across on the way many persons and the tea-stalls were open at Chail-chowk, but he did not request any of them to become the witnesses. He also stated 6 that Kharsi village was at a distance of 100 feet from the place, where they had put the ‘Naqa’. Police was informed around 1.30 a.m. by him telephonically from the shop of PW3 Gopal Sharma, but he was also not requested to become a witness as they had already apprehended the vehicle in question and recovered scants. He further stated that the police reached the spot around 2.30/ 3.00 a.m. According to him, measurement, which was taken by him on the spot was noted in the daily diary and the police was informed verbally about its measurement. His statement Ext.PW1/A was recorded around 7-8 A.M. and the memo Ex.PW1/B was prepared in the Police Station. Police had also measured timber in the Police Station and the memo Ext.PW1/C about converting the timber into cubic feet was prepared by him after 3-4 days. He denied the suggestion that the driver of the alleged offending vehicle was told by them to take his vehicle on Baggar (obligation), to which he denied and that a false case was foisted upon them. 7 11. PW2 Chamba Ram, Forest Guard corroborated the aforesaid version of PW1 in material particulars. He also admitted having signed the memo Ext.PW2/A alongwith Narender Prakash. In cross-examination, he stated that the Block Officer got unloaded the aforesaid timber for its measurement on the spot, but he did not know whether it was actually measured by him or not. They reached Police Station during the night and thereafter he left for his residence to sleep. No document was executed on the spot and the entire proceeding was conducted in the Police Station. He also stated that no measurement was done by the police in his presence. 12. PW10 Tek Chand afforded corroboration to the version of PW1 aforesaid in toto. In cross- examination, he stated that the respondents were the same persons present in the Court, who were found transporting the timber aforesaid, though he could not pin-point, as to who was Gopal Singh amongst them. 13. PW3 Gopal Sharma is a witness from whose shop PW1 informed the police, whereas 8 PW4 Tula Ram and PW6 Gokal Chand turned hostile. PW5 Sher Singh stated that one TD permit was taken into possession vide memo Ext.PW5/A, but no permit was produced by Daya Ram in his presence. 14. During the investigation, Chet Ram s/o Daya Ram respondent had also produced photocopy of TD permit to the police, which was taken into possession vide memo Ext.PW6/A by PW11 Constable Virender Singh, which fact has been denied by the respondents. The case of PW1 Krishan Ram Block Officer has also been corroborated by PW12 HC Paras Ram, Investigating Officer and according to him, on receiving information, he visited the spot and took into possession timber alongwith vehicle in question. Respondents also pointed out the place from where the aforesaid scants were loaded in the vehicle and he also prepared memo Ext.PW4/A to this effect. 15. On the critical examination of the aforesaid evidence, it is apparent that there is no direct or circumstantial evidence with respect to 9 illicit felling of trees, therefore, offence under Section 379 read with Section 34 of the Indian Penal Code is not made out, however, I find the overwhelming evidence on record that the respondent Pushp Raj driver of the vehicle in question (Jeep) was accompanied by respondents Dinesh Kumar, Gopal Singh, Daya Ram and two deceased respondents (Hari Singh and Narinder Kumar) during the intervening night of 13th and 14th April, 2000, they were intercepted by the Naqa party laid by PW1 Krishan Ram Block Officer with the assistance of other forest officials, while transporting 15 scants of Deodar of different sizes as indicated in memo Ext.PW1/B. 14 scants by the police were handed over to PW1 Krishan Ram Block Officer on supurdari and one scant Ext.P1 was kept as an evidence to be produced during the trial of the case, to which PW1 identified to be the same having no mark. Timber in question alongwith vehicle and its documents were taken into possession at the same time. 16. The State of Himachal Pradesh in exercise of the powers under Sections 41 and 42 of the 10 Indian Forest Act has made the H.P. Forest Produce Transit (Land Routes) Rules, 1978, in short ‘The Transit Rules’ to regulate the movement of forest produce by Land Routes into, from and within the territorial limits of the Himachal Pradesh. 17. Rule 5 of the said Rules prohibits any person to transport or cause to be transported any forest produce other than fuel wood, khair wood, bamboos, charcoal, medicinal plants and seeds that does not bear the imprint of the registered mark. All such persons wishing to transport forest produce other than aforesaid are required to be registered as per Rule 6 at the office of Divisional Forest Officer the mark or marks which indicate their proprietary rights on such forest produce provided that no mark is required to be imprinted on any timber which is being transported within the concerned revenue estate only by a right-holder in consequence of a grant to that effect in his favour. 18. Rule 11 of the aforesaid Rules imposes prohibition on transport of forest produce except by taking permission as provided under the Rules. 11 If any person commits contravention of the Rules aforesaid, Rule 20 provides penalty for its breach and is 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. The proviso added to the said rules provides the penalties to be double in cases where the offence has been committed after sunset or before sunrise, or after resistance to the lawful authority or where the offender has been previously convicted of like offence. 19. In the instant case, the respondents are proved to have been transported 15 scants of Deodar trees after the sunset or before the sunrise, the value where of has been assessed to be `11,768/- as per Memo Ext.PW1/C. The contention of the learned counsel for the respondents that no independent witness was associated is worth rejecting as during the dead of night, nobody would be ready and willing to be a member of a raiding party for whole of the night. Even the person from whose shop the information was sent 12 to the police telephonically was not required to be included as witness as the recovery of the timber had already been effected by that time. No motive worth its credence has been imputed by the accused to foist a false case upon the respondents, merely that the vehicle in question was required to be taken on Baggar (obligation) by the Forest officials cannot be believed without any further explanation as to what was that Baggar to be taken by them. All the respondents alongwith vehicle were apprehended on the spot while transporting the timber, therefore, in my considered opinion, each of respondents were liable to be convicted for the contravention of Rules 5 and 11 of the Transit Rules, which is punishable under Rule 20 of the aforesaid Rules. Since the offence in question was committed during the night, therefore, the penalty is double. 20. For the reasons aforesaid, in my considered opinion the acquittal of the respondents for the offence punishable under Section 41 and 42 of the Indian Forest Act and Rules framed thereunder is perverse, as such it is 13 set-aside. Accordingly, the respondents are convicted for the offence punishable under Rule 20 of the State Transit Rules framed under Section 41 and 42 of the Indian Forest Act. 21. Faced with the above situation, learned counsel for the respondents has pleaded for leniency on the ground that the alleged offence was committed in the year 2000 and the respondents are not the previous convicts. Both the submissions are worth rejecting, however, keeping in view the value of the timber in question at the relevant time and also the punishment provided for the offences aforesaid, in my opinion, the ends of justice would be met in case the respondents are sentenced till rising of the Court and fine of `5,000/- each, failing to pay fine, the defaulters shall undergo simple imprisonment for a period of one months. Ordered accordingly. 22. Respondents are not present, therefore, they are directed to be present before the learned trial Court on September 16, 2011 to receive the sentence and deposit the fine aforesaid, failing which, the learned trial Court 14 would take coercive steps to implement this judgment in case of non-deposit of fine. 23. The State appeal stands allowed to the above extent. Send down the records. August 18, 2011. (Surinder Singh) (Pds) Judge.