IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Appeal No. 445 of 2001 Date of decision: 05.06.2008 State of Himachal Pradesh Appellant Vs. Kushal Singh and others Respondents Coram: The Hon’ble Mr. R.B.Misra, Judge. Whether approved for reporting? For the Appellant: S/Shri R.M.Bisht and Rajesh Mandhotra, Deputy Advocate Generals For the Respondents : Mr. Ajay Sharma, Advocate R.B.Misra, J. (Oral) Heard learned counsel for the parties. 2. The present appeal has been preferred under Section 378 of the Criminal Procedure Code against the judgment dated 30th November, 2000 passed by the learned Additional Chief Judicial Magistrate, Una, district Una, H.P. in Criminal Case No. 62-III-00/96 for the alleged offence under Sections 41 & 42 of the Indian Forest Act, 1927 (hereinafter referred to as the Act). 3. The case of the prosecution is that on 21.5.1996 on receiving information, the SHO Pritam Singh formed a raiding party wherein Chanan Singh, 2 Pradhan and Piare Lal, Up Pradhan, Gram Panchayat Bathri were members and the said raiding party reached Humbi Khud at about 5.00 p.m. where the accused persons, namely, Kushal Singh, Sanjeev Kumar, Dilbag Singh, Ramesh Chand, Ranjodh Singh, Hans Raj, Yog Raj and Som Nath were seen carrying Khair logs on their shoulders. The Khair logs of different sizes including 9 logs and 6 pieces of different sizes were recovered and seizure memo was prepared on 21.5.1996 in presence of such independent witnesses where six Aaries, three Jhabals and one Axe alleged to have been used by the said accused in felling their Khair trees, were taken into possession through seizure memo. Demarcation was obtained and it was found that the Khair trees had been fallen from Khasra Nos. 84 and 1908, owned by Randhir Singh. The alleged accused were charge sheeted for the alleged offence under Sections 41 & 42 of the Act. 4. It has also been brought to the notice of this court that one accused Yog Raj, who was apprehended, had admitted his guilt in view of his statement recorded on 21.3.1999 and he was convicted for the offences under Sections 41 & 42 of the Act and was sentenced for a period already undergone in the jail custody. It has also been brought to the notice of this court that Som Nath had died during the pendency of criminal 3 proceedings. As such, the criminal case against him has abated. 5. In order to prove the offence against the alleged accused-respondents, the prosecution had examined as many as seven prosecution witnesses, whereas, none was examined by the defence. The alleged accused in their statements under Section 313 Cr.P.C. denied the case of prosecution and had claimed themselves to be innocent. 6. It could be noticed from the testimony of Piare Lal (PW-1) that he has not supported the prosecution case by saying that the accused- respondents were not present on the spot. However, the said PW-1 was witness of seizure memo where six Aaries (Ex. P-1 to Ex. P-6), three Jhabals (Ex. P-7 to P- 9) and one Axe (Ex. P-10) were taken into possession on 21.5.1996. The said prosecution witness, i.e. PW-1 was also a witness of seizure memo where nine logs and sixteen stumps (small pieces of logs) were taken into possession on 21.5.1996. However, such witness was declared hostile by the prosecution. The said witness (PW-1) had also reiterated the statement as indicated in the examination-in-chief and the names of alleged accused have not been arrayed. 7. While going through the testimony of PW-2, an independent witness, who was said to be a member of raiding party, it appears that the alleged accused- 4 respondents had not been seen by him carrying logs on the said date and the said witness has also been declared hostile. However, like PW-1, the present witness, i.e. PW-2, was also a witness of seizure memo of six Aaries, three Jhabals and one Axe in addition to nine logs and sixteen stumps. 8. Jiwan Singh (PW-3) had simply deposed carrying of demarcation which is Ex. PW-3/A. PW-4, Sohan Dutt Patwari, has proved the existence of PW-4 and jamabandi as Ex.PW-4/A and Ex. PW-4/B. Gurbaksh Singh (PW-5) had simply deposed that he had made an application Ex. PW-5/A for demarcation of land from where trees have illegally been fell. Inspector Kishan Singh (PW-6) and Deputy Superintendent of Police (PW-7) have supported only the prosecution case indicating that on receiving secret information they formed a raiding party, wherein, two independent witnesses Chanan Singh and Piare Lal were associated. From the testimony of only PW-6 and PW-7 the official witnesses, the alleged accused-respondents are said to have been carrying logs of Khair. However, none of the witnesses, including PW-1 and PW-2, have seen the alleged accused-respondents carrying logs. 9. In my respectful consideration, the testimony of two independent witnesses after having been declared hostile has rightly been not taken into consideration supporting the prosecution case as 5 reasonable doubt has been created. On the analysis of the testimony of prosecution witnesses and material on record, learned Additional Chief Judicial Magistrate had rightly arrived at a conclusion that the prosecution has been failed to prove the case beyond reasonable doubt and thereby the alleged accused-respondents have rightly been acquitted for the alleged offence under Sections 41 & 42 of the act. 10. After hearing learned counsel for the parties, I find no merit in the present appeal which accordingly is dismissed. June 5, 2008(K) ( R. B. Misra ), J.