State of Himachal Pradesh vs Prem Singh

Bhawani Singh, J.—The present appeal, by the State, challenges the order of acquittal passed by the Sub-Divisional Judicial Magistrate, Nurpur, acquitting all the accused of the offence u/s 379 of the Indian Penal Code in Criminal Case No. 552-IH/83, dated 4-6-1984 by giving them the benefit of reasonable doubt.

The prosecution case, in brief, is that the Divisional Forest Officer Shri Nanak Chand (PW1) got information through someone on 12-2-1983 that some persons had unauthorisedly and illegally felled numerous khair trees in undemarcated protected forests of Lodhwan, Gagwal, Hagwal and demarcated protected forest of Hagwal and Thapkaur. The Divisional Forest 174 INDIAN LAW REPORTS (HIMACHAL SERIES; (1989; (HC) Officer, along with certain officials of the Forest Department, checked these forests on 13-2-1983 where after he directed Shri R.L. Shad (PW 2), Assistant Conservator of Forests, to make a detailed checking of these forests and make a report thereof. As a consequence of this, the Assistant Conservator of Forests checked these forests from 15-2-1983 to 17-2-1983. In this report he stated that 65 clear trees of various classes and 4 broad leaved trees had been felled without permission in these forests. He further reported that the trees in question had been felled by the accused persons.

As a consequence, the matter was reported to the police. The accused were arrested and during investigation it was found that the accused had cut the trees in question. Statements of a number of witnesses were recorded. The accused also made disclosure state rents u/s 27 of the Evidence Act as a consequence of which" the police recovered 8 quintals and 22 kgs. Of heath in wet condition and logs of chair wood from these forests. The Chelan, on completion of investigation, was filed in the court of Sub-Divisional Judicial Magistrate; Nurpur and the accused were made to answer a charge u/s 379 of the Indian Penal Code. The case proceeded as the accused did not plead guilty to the charge and ultimately the trying Magistrate acquitted all the accused of the charge.

Shri M.S. Guleria, learned Assistant Advocate General, appeared for the State of Himachal Pradesh whereas Shri O.P. Sharma appeared in defense of the accused. Shri M.S. Guleria assailed the judgment of the trial court on a number of grounds.

Shri M.S. Galeria submitted that the prosecution has to prove that: (a) Government is the owner of the forests; {h) illicit felling was done in these forests; (c) the same was done by the accused; (d) that the act of the accused, amounted to an offence u/s 379 of the Indian Penal Code; and that the offence stands proved against the accused. So far as points (a) and (b) are concerned, Shri Guleria submits, there is no dispute that the Government is the owner of these forests and that illicit felling was done in these forests. Making submissions on other points, it is contended by him that there is sufficient evidence on the record to prove that the trees in question were cut by the accused. In furtherance of this submission, reference has been made to the statements of witnesses. Shri Nanak Chand (PW 1), who was the head of the Nurpur Forest Division at the relevant time, states that on information received from some person, he visited the forests and checked the same on 13-2-1983 longish the staff of the Forest Department. He directed Shri R.L. Shad, Assistant Conservator of Forests, (PW 2), to make a detailed checking of these forests which was "V done by him between 15-2-1983 to 17-2-1983 and reported to the effect that 65 khair trees of various classes and 4 broad leaved trees were felled without permission in these forests. He further states that a case was registered in Police Station, Nurpur. Forest Department seized 2 quintals 22 kgs. of hatha in wet condition from hatha bhathis. Besides, 19 hhair logs were also seized from these forests. He further states that the Assistant Conservator of Forests could apprehend 7 accused persons in this case. In his cross-examination he denies the suggestion of accused that they were being falsely implicated and that the trees were cut by the person who ultimately informed the Forest Department about the illicit felling of these trees and at whose instance the present case was initiated. In answer to another suggestion, this witness denied the suggestion of the accused that the Department was in league with the hatha bhathi owners and that these trees were, in fact, cut by the owners of these hatha bhathis and that no action against them was initiated.

The other important witness referred to was Shri R.L. Shad, Assistant Conservator of Forests (PW 2). It is stated by him that in pursuance of the direction of Shri Nanak Qiand (PW. 1), he checked the forests alongwith Shri J.L. Mohinder, Shri Kartar Singh, Deputy Ranger, Saral Jeet Singh, Forest Guard, Maharaj Krishan, Forest Guard, Ramesh Chand, Forest Guard, Baldev Singh Rakha and Rakhas of Lad wan Society from 15-2-1983 to 17-2-1983 and submitted a report. According to him, these trees were cut during February 1 to February 17, 1983 and the damage report with respect to these fallings was issued from 15-2-1983 to 17-2-1983. During this checking, he states that the accused persons were found responsible for the same. He further makes a detailed account about these reports and signatures thereon of various persons. He states that the names of the accused persons came to his knowledge during the course of inquiry and then further states that these names were given to him by the Forest Guard and he came to know about these names during 15-2-1983 to 17-2-1983 and he '' could no t say about which accused he came to know but as, soon as he came to know about any name, he used to report the same. All the three rakhas had also given the names of the accused and so also the Deputy Ranger. He further states that the police did not record the First Information Report because it used to call it a case of recovery and advise the Department to realize compensation whereas, according to him, it was a case of theft. Ultimately, the police registered the case. It is denied in the cross-examination by this witness that these reports were manufactured and were prepared while sitting in the office.

The next two witnesses Shri Kanwar Singh (P.W. 3) and Gurdial (P.W. 4) are the eye witnesses. They saw accused Prem Singh, Kulwant Singh alias Bholu and Baldev carrying bundles of khair wood on their heads and going towards Chaki Khad in Punjab. The accused were recognized by them at that time and identified in the Court as well. It is stated by them that the accused were coming from the forest during night time.

Shri Maharaj Krishan (P.W.5) and Shri Saral Jeet Singh (P.W.6) deposed about the issuance of respective damage reports P. W. 6 particularly states about the statements made by the accused u/s 27 of the Evidence Act and recoveries of timber as well as katha.

Shri Ramesh Kumar (P.W.7), Forest Guard, deposes about the recovery of damage report Ex. P.W. 5/A signed by him as a witness whereas Shri Kartar Singh (P.W. 8) is also a witness to Ex. P.W. 5/A besides Ex. P.W. 6/A, again a damage report.

Shri Dhian Singh (P.W. 9), Sub-Inspector of Police and Station House Officer, Police Station, Stirrup, only states that he handed over the investigation of this case to Shri Joginder Singh, Assistant Sub-Inspector of Police, and after investigation, the case file was submitted to him where after he made further investigation by recording the statements of a number of witnesses and thereafter the Chelan was filed by him. He states that he recorded the First Information Report on the direction of the Additional Deputy Superintendent of Police on 27-2-1983. He told the Forest Department that they could realize compensation for the illicit felling of trees and that is why he did not record the First Information Report.

Shri Joginder Singh (P. W. 11), Assistant Sub-Inspector of Police, Police Station, Nurpur, also investigated the case. He recorded the statements of the accused u/s 27 of the Evidence Act as a consecjuence of which katha and timber was discovered. He denied the suggestion of the accused that the Case was initiated against them at the instance of the Forest Department.

On the basis of the statements of the witnesses and the documents on record, Shri M.S. Guleria, learned Assistant Advocate General, submits that the evidence against the accused is quite sufficient to prove that the trees were cut by the accused and an offence u/s 379 of the Indian Penal Code stands fully proved against them. In view of these submissions, -it is urged that the judgment of the trial court is absolutely per verse as in view of overwhelming convincing evidence, the inferences drawn by the trial court from the statements of witnesses are absolutely'' wrong and the judgment, therefore, deserves to be set aside and the accused convicted for the offence u/s 379 of the Indian Penal Code. It is also urged by him that illicit felling of trees in the State is rampant. Forest, wealth is being destroyed recklessly for petty selfish gains thereby causing loss not only to the State but also to the ecology of the whole world. In view of these submissions, he submits that the offenders have to be dealt with strictly and given exemplary punishment.

On the other hand, Shri O.P. Sharma, learned Counsel appearing for the accused, submits that there are a number of contradictions in the statements of prosecution witnesses. Particular reference has been made to the statements of Shri Maharaj Krishan, Forest Guard (P.W. 5), Sh. Saral Jeet Singh, Forest Guard (P.W.6) and Kartar Singh (P.W.8). I am not "Satisfied with this submission. Perusal of the statements of these witnesses'' along with P.W. 1 and P.W. 2 will demonstrate that certain minor variations in the statements of these witnesses do not, at all, weaken the case against the accused. Minor variations, generally called contradictions, are natural when a witness is examined after a pretty long time. More so, relating to documents, contents thereof and minor details.

A tail argument picked up by Shri O.P. Sharma related to the application of Section 27 of the Evidence Act. Although the learned Counsel did not seriously agitate this point, however, I examine this point as well. Perusal of the statements of the prosecution witnesses and the ultimate discovery shows that the prosecution cannot take benefit of these recoveries in pursuance of the alleged statement of the accused because the recoveries are from the hatha Bhathis owned by someone else. Besides, these have never been in the exclusive possession of the accused. Similarly, I do not attach importance to the recoveries made in the forest.

It is further contended by him that the prosecution has examined mainly the official witnesses and many other independent and important witnesses have been left out. It is also stated that Nanak Chand, D.F.O., (P.W. 1), Kanwar Singh (P.W. 3) and Gurdial (P. W.4) are not reliable witnesses because they are inimical and interested against the accused. It is argued that some litigation was there between Kanwar Singh (P.W. 3) and Gurdial (P.W. 4). In view of this, the learned Counsel submits, these witnesses should not be believed. I do not appreciate these submissions of the learned Counsel for the accused. I do not see any infirmity of any nature in the statements of these witnesses. Simply because official witnesses have been examined by the prosecution that does not mean that they are not to be relied upon. There is no such rule or principle or any brought to my notice. The statements of P.W.S. 3 and 4 are also perfectly natural, clear and cogent and there is no reason to discard them on the grounds submitted by the learned Counsel for the accused. It is for the prosecution to decide as to how many witnesses are to be examined in a case. It is further for the prosecution to decide as to who are to be examined as wit nesses. The only thing to be taken care of is that material wit nesses, which throw light on the important aspect of the case, be not kept away from the Court. It is the quality which matters and not the quantity. I do not, therefore, accept the contention of the learned Counsel for the accused that material witnesses, though not specifically pointed out by the learned Counsel, have been left out. Also reject the bald con tension of the learned Counsel for the accused that a false case has been initiated against accused by the Forest Department.

I have examined the respective contentions of the learned Counsel for the parties and perused the record of the case as well. The conclusion, therefore, is that the prosecution has proved that the Government is the owner of the forests and the trees were cut out of those forests by the accused thereby committing an offence u/s 379 of the Indian Penal Code. In view of this conclusion, the judgment of Side trial court is set-aside and the accused are convicted u/s 379 of the Indian Penal Code.

Now, the question arises as to what pain semen should be awarded to the accused. No previous conviction against the accused has been brought to my notice. The offence was committed in the beginning of the year of 1983. It would no: be in the interest of justice to send the accused to jail. I, therefore, convict the accused u/s 379 of the Indian Penal Code and sentence them to pay a fine of Rs. 3,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of two years each.