State of Himachal Pradesh vs Bhag Chand

Bhawani Singh J.

The State of Himachal Pradesh feels aggrieved by the judgment of Judicial Magistrate, First Class (III), Shiirala, in Case No. 101/2 of 1983, dated October 31, 1984, whereby the accused, Shri Bhag Chand, was acquitted of a charge Under Sections 41/42 of the Indian Forest Act and 468/420 of the Indian Penal Code.

The facts, in brief, are that on July 1, 1982, Prem Chand, Sub-Inspector, along with Narayan Singh, Block Officer, Chander Mani, Forest Guard and Vinod Kumar went to the railway station, Shogi and checked the timber stacked there. The timber, they alleged, had Khudan mark-''B C and on counting the number was 371 scants of different sizes and the measurement came to 1446.39 cft. This timber was inferred to be without permit with the result that a recovery memo was prepared and the timber was seized. Case was registered Under Sections 41/42 of .the Indian Forest Act and 379/468/420, of the Indian Penal Code. After investigation, challan under these sections was filed against the accused.

The trial court framed the charge on August 22, 1983, Under Sections 41/42 of the Indian Forest Act and 468/420 of The Indian Penal Code with the result that the trial commenced aid number of witnesses was examined by the prosecution to prove the charge against the accused person. The matter is, therefore, to be examined under three parts, namely, Under Sections 41/42 of the Indian Forest Act, Sections 468 and 420 of the Indian Penal Code to see as to whether these offences have been proved by the prosecution.

Shri Narain Singh (PW 1 ), Block Officer, states that he had gone to Shogi railway station with Sub-Inspector, Prem Singh of the Enforcement on July 1, 1982 for the checking of timber. He states that the timber of Kail variety with ''BC'' Khudan mark, lying there, was checked. There were 371 scants with export hammer of different sizes and on measurement it was found 1446.39 cft. The permit was for 452 scant measuring 769.10 cft. He further states that he was with Forest Guard Chander Mani, (PW 9) and Vlnod Kumar (PW 10). The timber, he states, was taken in possession by the police vise recovery memo Ex PW 1/A and the same was signed by him, Chander Mani, Forest Guard, (PW9) and Vinod Kumar (PW K), in cross-examination this witness states that the timber was stacked in one heap and the same was measured by him with the help of tape, while some other was measured on approximation. He further states that the Guard was just moving the slippers and he was measuring the same and the cft. Was also calculated by him. At this time, he states, the accused was not present on the spot. He admits that in case the waste of timber is calculated, the measurement in cft. Could increase and lot of other timber was also lying at the Shogi railway station other than this timber.

Shri Chander Man (PW 2), is the Forest Guard. He states that he was present at the railway station at the time of this checking. He supports Narain Singh (PW 1) to the effect that the timber was measured by Narain Singh (PW 1) as stated by him. He also states that the timber was in one heap. He farmer states that the timber was also measured by the police which fact has not been stated by Nawin Singh (PW 1). He further states that the measurement was noted by him, a feet not stated by PW 1, the net falsify of the statements of these witnesses is that they do not support each other as to the second �measurement by the police. The measurement of the timber in this case is of fundamental importance, because the effort of the prosecution is to prove that the excess timber was illicitly transported by the accused from the source to the destination at Shogi railway station where it was found, seized and prosecution launched. The measurement of the timber, in my opinion has not been proper which is clear from the statement of Narain Singh (PW 1). Measurement cannot be done by a single person with the help of tape. The total timber was not measured with the tape, as is clear from his statement that some was measured with the help of tape and some other was measured by approximation. In these circumstances no reliance can be placed on the measurement part of case and the result is that the total number of scants is less than 452 scants for which this permit was issued in favor of the accused. Further Shri Vinod Kumar (PW 9), the only independent witness in this case, states that the timber was unloaded according to the permit of the accused but contradicts other witnesses as to who measured the same. He was present at the spot when the timber was checked, measured and taken into possession by the police. There are material contradictions in the versions of Hari Chand (PW 10); and Prem Chand (PW 11) . Shri Hari Chand (PW 10) states that the timber was lying outside railway station, Shogi, in three heaps and the same was collected at one place and was counted by Narain Singh (PW 1) and Chander Mani (PW 2) and the recovery memo was prepared by Prem Chand, Sub-Inspector (PW 11). This timber, he states, did not have any export hammer and on inquiry from the Station Master, it was found that Khudan ''BC related to permit of 452 scants of Kail measuring 769.10 cft. And on measurement it was found that the total number of scants were 371 and measurement was 1446.39 cft. The distance between the three heaps of timber, he states, was 15-20yards.

Shri Prem Chand (PW 11), alleges his presence at the railway station and supports Hari Chand (P W 10) as to the lying of timber in three heaps and collection thereof at one place for the purpose of measurement. He states that the permit was given by the person who unloaded the timber. The timber, he states, was measured by Narain Singh (PW 1) and the accused was not present there. It can be seen from the statement of these witnesses that they support Narain Singh (PW I) as to the measurement part of the case that it was done by Narain Singh(PW 1) but their statement as to the factum of the lying of the timber at three different places is not supported by any other prosecution witness. It appears that they have not exactly visited the place before the measurement. It was not possible to collect the timber from two other places to form one heap for the purpose of measurement, in the absence of any evidence to indicate that the same was got done by employing certain laborers foes this purpose and that could be done by the production as with nesses of some of the laborers and payment to them" for this purpose. No such evidence has come on the record. The conclusion, which can be safely drawn from these circumstances, is that there is no cogent and convincing evidence as to the exact measurement of the timber and the excess pointed out appears to be the result of approximation measurement of the total timber and, therefore, it cannot be safely concluded that the excess timber was found at Shogi railway station.

One more issue is relatable to the matter already discussed above. The same relates to the transport of the timber for from the source to the destination as alleged by the prosecution. It was the cumulative effect of the transport of the timber from the source to Shogi railway station in breach of the permit k! Question. The permit authorized the accused to transport the timber from Daroti to Summer Hill Railway Station via Khara Pathar and Dhalli, whereas mark A-B-OD, the challans issued by the accused accompanying the vehicle carrying the timber indicate that the same was transported via Baghi, which was in breach of the permit No. 201/28-83 dated April 29, 1982 and the act of the accused amounted to commission of offence under Rule 11 of the Himachal Pradesh Forest Produce (Transit of Timber) Rules, 1978, read with Sections 41/42 of the Indian Forest Act. It is also pointed out that there is variation in the sasses of the timber in question.

The perusal of the charge sheet framed in the case against the accused by the trial court on August 22 1983 foliates that charge No. 1 relates of the commission of offence u/s 41/42 of the Indian Forest Act on the ground that the permit authorized the accused to transport only 76vlfteff-. Whereas the accused transported 4446. 34 cft. (this figure is wrong. The actual figure alleged by the prosecution is 1446.39 cft). There is it allegation/charge against the accused that he violated offer condition of the permit by transporting the same via Baghi forest efface& post instead of Khara Pathat forest head post arid further carrying the same beyond Summer Hill railway station to Snog railway station without authorization. Perusal of the statement of the accused u/s 313 of the Code of Criminal Procedure further indicates treat these facts have not been pit to the accused. In these circumstances, it is clear that the only case of the prosecution against the accused is relating to the excess transport of the timber only and not relating to the violation of other conditions of the permit, namely, transport of timber through Baghi forest check post instead of Khara Pathar forest check post and transporting the same to Shogi railway station beyond Summer Hill railway station.

As soon as this aspect of the case was brought to the notice of the learned Deputy Advocate General, appearing for the State of Himachal Pradesh, he asserted that this violation is apparent on the face of the record so he argued that this Court could take into consideration this violation of the permit as well while deciding the case relating to the point of the transport of the excess timber. On the other hand, Shri R.K. Kaushal learned Counsel for the accused, contended that the prosecution has not come forward on this aspect of the case and relied on the contents of the charge sheet as well as the statement of the accused recorded u/s 313 of the Code of Criminal Procedure. It was further contended that taking into consideration such facts would cause immense prejudice to his client. I am convinced with these submissions of the learned Counsel for the accused. Therefore, the allegation of the prosecution relating to the Trans port of timber in the manner other than prescribed in the permit cannot be allowed to be raised and decided in the absence of charge and examination of the accused on these facts. Doing so, in my opinion, will cause serious prejudice to the accused and cannot be permitted in these circumstances, at this stage, in the interest 6f justice. On the other part, the main case of the prosecution on this aspect is also not proved due to the fact that the measurement was faulty, unconvincing and contradictory.

Examination of the second part of the case has been stressed by the learned Deputy Advocate General on the ground that the accused forged the permit, Ex. P W 5/C, by extending the date of the permit from 10r5-1982 to 10-6-1982 and thereby committed an offence u/s 468 of the Indian Penal Code. Shri Ishwar Singh (P W 5), Clerk in the office of the Divisional Forest Officer, Rohru, from where the permit in question was issued, has been examined, but perusal of his statement does not in any way show that the accused had forged the permit in question. He states that the permit in question was issued from the office of the Divisional Forest Officer; Rohru 452 for scants measuring 769.10 cft. He states that the date on the permit used to be given by the Divisional Forest Officer himself and nine copies of the permit are prepared and he did not know as to what dates the Divisional Forest Officer gave on the permits as to the expiry of the same and he could not say whether on Ex. PW 5/C figure ''6'' in place of ''5'' was written by the Divisional Forest Officer with his own hand. The official copy of the permit was not brought by him. Shri Ved Parkash, Deputy Ranger (PW 6) says that one advance copy of the permit goes to the check post and as soon as the timber reaches the check post, the same is checked in accordance with the advance copy of the permit and the vehicles carrying timber via Baghi check post and Dhalli check post are checked and Clallam A to D are received by them from the drivers of the trucks. Shri J.S. Chauhan V Range Officer (PW 7) also supports P Ws 5 and 6 on material aspects of the case.

The perusal of the statement of these witnesses and the record of the case on this aspect indicate that there is no evidence to show that the permit in question was forged by the accused. Rather the evidence indicates that the copies of the permit are sent to different places by the office of the Divisional Forest Officer where one copy is retained. Therefore, it can. Be safely said that the accused had not given the copy of the impugned permit at any of these places and he had no hand in. changing the date of the expiry of the permit. Permits are already with the charge of the check posts and it is only the challan carried by the driver of the truck which has to be shown to the in charge of the check post, who has to check the timber in accordance with the permit already with him, and the challan accompanying the vehicle. The prosecution has also not made any effort to place on record any other evidence in the form of the production of the original copy of the permit in the office of the Divisional Forest Officer and any expert evidence pointing out the forgery having been done by the accused. At what stage these permits came in possession of the police is not clear. The timber was checked, measured and seized on July 1, 1982, whereas the permit is stated to have been taken in possession on July 10, 1982. There are two permits on the file, namely, Ex. PW 5/C, of which the expiry date is 10-6-1982 (impugned permit) and the other is Ex. PW 5/A on which the expiry date is 10-5-1982. In order to clear this point other seven copies of the permit could to some extent settle the matter in controversy but these copies have not been placed on the record of this case. The result is that the case of the prosecution u/s 468 of the Indian Penal Code also fails on account of the paucity of clear, cogent and convincing evidence.;

The third part of the case relates to the commission, of the offence u/s 420 of the Indian Penal Code: for having cheated the State Government by transporting the timber by extending the validity period of the permit from 10-5-1982 to 10-6-1982 from the aforesaid check posts. Once the case of the prosecution u/s 468 of the Indian Penal Code fails, as held above, no case u/s 420 of the Indian Penal Code is made out, as the commission of the offence u/s 420 of the Indian Penal Code could be committed when once it is found that the permit in question was forged by the accused to enable him to transport the timber through the aforesaid check post by telling them that he was transporting the timber within the validity period of the permit and they having permitted him to do so on the basis of this representation by the accused by a reference to the impugned permit. In these circumstances, no offence u/s 420 of the Indian Penal Code is made out against the accused.

The net result of the examination of this case on the basis of the evidence on the record and the submissions of the learned Counsel appearing for the rival parties, I am of the opinion that the prosecution has failed to prove the case against the accused and the conclusion and findings arrived at by the trial court. Are in accordance with law and are hereby confirmed. The appeal fails and is, therefore, dismissed. Bail bonds and surety bonds, if any, executed by the accused in connection with this case arc hereby discharged.