-- : 1 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.382 OF 1998 1. Waman Jangu Ude, Age 45 years, Occ. Agril., R/o Lingi, Tq. Kinwat, District Nanded. 2. Shankar s/o Delu Kanake, Age 20 years, Occ. Agril., R/o as above. 3. Chinnayya s/o Uppanna Kutalwad, Age 20 years, Occ. Agril., R/o Lingi, Tq. Kinwat, District Nanded. 4. Umesh s/o Bandusingh Rathod, Age 24 years, Occ. Agril., R/o Lingi, Tq. Kinwat, District Nanded. 5. Rajesh s/o Bandusingh Rathod, Age 25 years, Occ. Agril., R/o Lingi, Tq. Kinwat, District Nanded. ... APPELLANTS VERSUS The State of Maharashtra, (Copy to be served on the Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri A.B. Kharosekar, Advocate for appellants Shri N.B. Patil, A.P.P. for respondent -- : 2 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 ..... W I T H CRIMINAL APPEAL NO.403 OF 1998 Shankar s/o Gyanoba Pawar, Age 37 years, R/o Unkeshwar, at present Mukhed, District Nanded. ... APPELLANT VERSUS The State of Maharashtra, (Copy to be served on the Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri A.S. Golegaonkar, Advocate for appellant Shri N.B. Patil, A.P.P. for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 23rd March, 2011. ORAL JUDGMENT : 1. The appellants question their conviction for an offence under Section 395 of the Indian Penal Code in Sessions Case No. 58/1994, recorded by learned Jt. District Judge & Additional Sessions Judge, Nanded by judgment and order dated 19.11.1998, thereby directing to undergo R.I. for one year and to pay fine of Rs. -- : 3 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 1000/- with default clause. 2. The facts giving rise to registration of offence proceed as under : In the night of 31/3/1993, five forest Watchmen namely Ramdas Maske (P.W.3), Dadarao Jhingrao, Uttam Chimnaji Rathod, Govind Kindilwar and Manohar Pawar were guarding the forest and particularly the area known as Chaskora Jungle. During the patrolling, they heard movements of a bullock cart. Consequently, they proceeded towards the direction and reached near the bullock cart which was passing by the road through the forest towards Lingi. It was accosted and the Watchmen noticed that the cart carried 40 teak logs. They felt that the teak logs were freshly cut. The appellants in Appeal No.382/1998 namely Waman, Shankar and Chinnayya were seen at the cart. Being questioned, Waman informed that the bullock cart belonged to Umesh Rathod. The accused were directed to take the bullock cart with the logs to Unkeshwar Forest Check Post. It was taken to the direction of Forest Check Post, however, could not proceed ahead due to brook on the way and the bullocks were unable to pull by crossing the brook. This resulted in unyoking the cart and it was left at the other bank of the brook. The Watchman Namdeo (P.W.7) went towards -- : 4 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 Forest Check Post to call Assistant. Matter was reported to his superior. He was advised in turn to report the matter to Forester Shinde. He went towards the village and reported the matter to Forester Shinde. Forester Shinde, after reaching the spot, insisted the police to assist to ensure bringing the said cart and cart laden with teak wood to the Check Post. The Constable Maroti Chavan (P.W.6) and Constable Waghmare went near the cart to ensure its pulling to the Check Post, however, did not succeed. Accused No.5 Umesh Rathod, Accused No.6 Rajesh Rathod reached near the cart. There was a scuffle between these persons and the guard. The watchmen then returned to Forest Check Post, slept and in the morning went to Mandvi, reported the matter to Forest Ranger. Consequently, report (Exhibit 79) about the incident was lodged at Mandvi Police Station vide Crime No.15/1993 for an offence under Section 395 of the Indian Penal Code and under Section 26 of the Indian Forest Act. 3. During investigation, panchanama of the place of incident was drawn (Exhibit 88), dated 2.4.1993. The teak logs and cart were seized by P.S.I. Latpate in presence of panch from the field adjoining to house of Umesh Rathod Umesh Rathod (accused No.5) at village Lingi. Statements of witnesses were recorded. -- : 5 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 4. After regular rituals, the matter was committed to Sessions Court. Before the learned Sessions Judge, after the charge sheet, prosecution, in order to establish guilt of the accused, put in 8 witnesses and placed reliance to certain documents. From the 5 Watchmen, statements of 2 Watchmen Ramdas (P.W.3) and Namdeo (P.W.7) were recorded. 5. Learned District Judge did not believe the evidence of cutting the logs from the forest as no evidence was forthcoming to illustrate fresh branches or stumps. Consequently, he acquitted the accused for infraction of Section 26 of the Indian Forest Act, however, the learned Sessions Judge convicted the accused for an offence under Section 395 of the Indian Penal Code as stated above. 6. On evaluation of evidence of the witnesses, I find, the learned Sessions Judge when could not get any evidence about cutting of the teak from the forest belonging to Government and since there was no recovery from or at the instance of any accused concerning the 35 logs, could hardly convict the accused for an offence under Section 395 of the Indian Penal Code. When the -- : 6 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 learned Sessions Judge himself doubted about ownership of the field wherefrom the logs were allegedly recovered, as the panch witness did not support the affairs, its benefit naturally should have been manifestly put to the shoulders of the accused/ appellants and could not be doubted against the accused/ appellants. 7. The learned Judge with all certainty did not evaluate the evidence of P.W.3 Ramdas Maske, P.W.6 Maroti Chavan and P.W.7 Namdeo Kudmate. P.W.6 Maroti was a police constable. He has carried the events, but it could not point that the logs were freshly cut or were allegedly removed from the forest, there is no pointing to the logs to be belonging to the Government. 8. Survey of above facts illustrate, the conviction recorded by the learned Sessions Judge was without proper assessment of the evidence and particularly when he could acquit the accused for infraction of Section 26 of the Indian Forest Act, there could not be a conviction in terms of section 395 of the Indian Penal Code. Section 395 of the Indian Penal Code in itself provides a rigorous punishment of life if proved, or with a rigorous imprisonment for a term which may exceed to ten years and also shall be liable to fine. There should have been a primary evidence about the accused -- : 7 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 committing robbery. As stated earlier, the learned Judge himself accepts that there was no cutting of logs from the term in the forest, there could not be attribution of any robbery of the goods belonging to Government. Robbery is defined in Section 390 of the Indian Penal Code, which illustrate, in all robbery there is either theft or extortion. Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Reading evidence of the three Watchmen or the police constable, nothing or the sort that they were restrained or they were threatened or they suffered any hort. The reference to the scuffle caused allegedly with one of the accused/ appellant cannot be believed as after the so called scuffle the Watchmen simply went to their quarter and slept, reported the matter next morning to their superior, thereafter it was followed with lodging F.I.R. The scuffle had its gravity, however, it has been diluted by the very conduct of the Watchmen, which suggests that they themselves were satisfied that the logs did not belong to Government or that the Watchmen were in laxity at the material time. It is not that the accused/ appellants, the persons on the cart allured from the said -- : 8 : -- Criminal Appeal No.382/1998 with Criminal Appeal No.403/1998 place or caused any threat or prodding to the Watchmen to release the goods. 9. In the set of above facts, the conviction recorded by learned Sessions Judge against appellants is set aside. The appellants are acquitted of the charge levelled against them. Fine deposited before the learned Sessions Judge be refunded to the respective accused/ appellants after 60 days. Appeals accordingly allowed. K.U. CHANDIWAL JUDGE