State of Himachal Pradesh vs Mathu Ram

Sanjay Karol, J.—Assailing the judgment dated 01.10.2005, passed by Judicial Magistrate, 1st Class, Theog, District Shimla, H.P., in Case No. 14-1 of 2001, titled as State of H.P. Versus Mathu Ram & another, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

On 12.10.2000, Head Constable Khem Raj (PW.7) alongwith police officials Devinder and Ramesh Chand, was present at a place known as Narail. They stopped vehicle bearing No. HIS 1918, owned by Mathu Ram (Accused No. 1) and driven by Sanjeev Sood (Accused No. 2). Police found the accused to be transporting 60 planks of Deodar without any permit. Accordingly Tara Dutt (PW.2), Incharge of the Forest Beat was called and property seized and entrusted to him in the presence of independent witnesses Laxmi Singh (PW3) and Joginder Singh (PW.8). Rukka (Ex.PW.7/A) was sent to Police Station, Theog, on the basis of which, FIR No. 185 of 2000 dated 12.10.2000 (Ex.PW.7/B) was registered, under the provisions of Sections 41 and 42 of the Indian Forest Act, 1927 (hereinafter referred to as the Act) against the accused. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, Challan was presented in the Court for trial.

The accused were charged for having committed offences punishable under the provisions of Section 42 of the Act and Section 411 of the Indian Penal Code, to which they did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as nine witnesses. Statements of the accused under Section 313 of the Code of Criminal Procedure were also recorded, in which they took up the defence of false implication. No evidence in defence was led.

Trial Court, after appreciating the testimony of prosecution witnesses acquitted the accused. Hence the present appeal.

Having heard Mr. H.K.S. Thakur, learned Additional Advocate General, on behalf of the State as also Mr. H.C. Sharma, Advocate, on behalf of the accused and having minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution, one is of the considered view that no case for interference is made out at all. The judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients so required to constitute the charged offence.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.C. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice.""

From the conjoint reading of testimonies of prosecution witnesses, it is evidently clear, which fact is also not disputed at the Bar, that the timber in question was actually owned by one Hem Chand. Also unrebutted and uncontroverted testimony of the Investigating Officer, Khem Raj (PW.7), is evidently clear on this aspect. Thus, allegation of prosecution qua transportation of stolen property is unsustainable.

With regard to transportation of timber without any valid permit, the genesis of prosecution story with regard to seizure of the timber at Narail itself is in doubt. According to police officials Virender Singh (PW.1), Tara Dutt (PW.2) and Shiv Ram (PW.4), timber was seized at Narail, where police party was standing. Significantly, there is nothing on record to establish Rawangi of the police party from the Police Post/Station for duty to or towards Narail. That apart, independent witnesses Laxmi Singh (PW.3) and Joginder Singh (PW.8) state that logs were seized from the Saw Mill belonging to Joginder Singh (PW.8). It has also not come on record that Saw Mill of Joginder Singh falls in a totally different revenue estates, for such fact would only constitute an offence. Also there is discrepancy in the testimony of prosecution witnesses i.e. Virender Singh (PW.1), Tara Dutt (PW.2) and Shiv Ram (PW.4) with regard to the manner in which timber was measured. Also number of logs has not been counted/measured properly, which aspect has been taken note of by the trial Court in para-9 of the judgment.

It cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to transport 60 planks of Deodar and accused were found in possession of the said planks. Contradictions and embellishments in the statements of police officials are glaring, material and relevant, totally shaking the edifice of the prosecution story.

The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice.

The accused persons have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Record of the trial Court be immediately sent back.