State Of Himachal Pradesh vs Sher Mohammad

Anoop Chitkara, J

Challenging the reversal of conviction by Sessions Court for felling of ‘Khair’ and ‘Jighan’ trees and stealing its wood, the State has

come up before this Court by filing the present appeal, seeking conviction of the accused.

On 1.6.2003 Forest Guard, Sohan Singh, was extinguishing fire in Silhanoo Forest in Nalagarh area. When he was present in the forest, he

suspected unusual moment of some persons and found reasons to believe that such persons are might be planning to cut and steal the khair wood

trees. After that Forest Guard, Sohan Singh, informed Deputy Ranger, Sudarshan Chand Katoch (PW5) at around 8:30 pm. After that Deputy

Ranger, Sudarshan Chand Katoch (PW5) along with Bagga Ram (PW1) went in their official vehicle and met Sohan Singh and proceeded towards

the Silhanoo forest. They reached the forest around quarter past nine. At around 9:15 pm, they heard some noise of felling trees and as such they

concealed/hide themselves in the forest and stared vigil over the activities of the thieves. The forest thieves felled a large number of khair trees and

were on processing them into logs. At around 1 am, forest officials searched the entire area and nabbed three accused persons, whereas two accused

persons ran away by taking advantage of the darkness. The persons, who were nabbed, revealed their names as Paramjit Singh (A3), Gurnam Singh

(A4) and Shesh Ram (A5). On inquiry, they disclosed to the forest officials that the persons who had absconded from the scene of occurrence were

accused Sheru @ Sher Mohamad (A2) and Ravi Kumar (A1). From the spot of occurrence, the forest officials also noticed the tools, which were

used by them to fell the trees and left behind by the accused persons.

Sudarshan Chand Katoch scribed all this incident and sent the same to SHO, Nalagarh for registration of FIR through memo Ext. PW5/A. Based

on this information, the police registered FIR Ext.PW8/A as captioned above.

On the next day, the forest officials and police again reached spot and seized 90 logs of khair wood and 5 logs of jighan wood, vide seizure memo

Ext. PW5/B. The Investigator conducted the investigation and seized the felled wood, vide memo Ext. PW5/C and forest officials measured the same,

vide Ext. PW5/D. The police officials also seized the tools, vide Ext. PW5/E.

After that police arrested the absconded accused Sher Mohammad and at his instance, one hand-saw was recovered on 8.6.2003.

After completion of investigation, the Officer In-charge of the aforesaid Police Station lodged prosecution by filing a report under Section 173 (2) of

Cr. P.C. in the trial court.

Vide order dated 21.3.2005, learned Additional Chief Judicial Magistrate framed charges for commission of offences punishable under Section 379

read with Section 34 IPC and Section 33 of Indian Forest Act against all the accused. The accused did not plead guilty and claimed to be tried.

I have heard Mr. Nand Lal Thakur, learned Additional Advocate General for the appellant and Mr. H.S. Rana, learned counsel for the respondent

and have also gone through the entire record.

Vide above captioned judgment, learned trial court found the prosecution evidence convincing and held the accused persons guilty of aforesaid

offences. Consequently, learned trial court convicted the accused persons under Section 379 read with Section 34 IPC and Section 33 of Indian Forest

Act and sentenced them, as mentioned above.

Convict Sher Mohammad (A2) challenged his conviction by filing criminal appeal before the Court of learned Sessions Judge and vide judgment

dated 17.7.2009, learned Sessions Judge allowed the appeal and set aside the conviction and acquitted the appellant of all charges.

Challenging the judgment of learned Sessions Judge, the State has come up before this Court by filing appeal under Section 378 of Cr.PC.

There is no information what happened with accused Ravi Kumar, who was also convicted by the learned trial court. The State has no information

about him. As such, be that as it may, this Court is presently concerned with the appeal filed by the State against four accused persons, out of which

one is registered as Cr. Appeal No. 452 of 2009 and the second is registered as Cr. Appeal No. 118 of 2010.

The version of Sudarshan Chand Katoch, Deputy Ranger made vide written complaint Ext. PW5/A was reiterated by him when he testified in the

Court as PW5. Other prosecution witness Santosh Kumar (PW3) testified as PW3 had also spoken in the similar terms. Bagga Ram (PW1) also

testified in the similar fashion.

Undoubtedly, there was illicit felling of khair and jhingan trees in Silhanoo forest. The question before this Court is that what is the evidence to

connect the accused person with the said felling.

The information about such illicit felling was derived from his personal belief by Sohan Singh Forest Guard, who has not been examined. His non-

examination is insignificant because, in fact, his suspicion was correct because the forest officials and the police recovered felled trees in the forest

and also recovered logs.

As per the consistent case of the prosecution, Sohan Singh Forest Guard had informed Sudarshan Chand Katoch, Deputy Ranger Officer at

around 8:30 pm about his apprehension. The Deputy Ranger has acted with responsibility and immediately associated Bagga Ram (PW1) & Santosh

Kumar (PW3) and proceeded towards the forest area in his official vehicle. All these people along with Sohan Singh were present in the forest at

around 9:30 pm as explicitly mentioned in the statement recorded under Section 154 of Cr.PC and corroborated in testimonies in the Court.

When the forest officials reached the forest at around 9:15 pm, then they heard the noise of trees felling. On such, they proceeded towards the

direction from where the noise was coming and started keeping vigil over them. At around 1 am, they reached there and noticed five persons, out of

which 2 were absconded by taking advantage of the darkness and they are able to nab three accused persons.

This version is corroborated and consistent, but there is an extremely big flaw in it.

Being the forest officials, the first and foremost priority would be to stop the trees from being axed. Admittedly, they had reached the spot at

around 9:15 pm and when they heard the noise of felling of trees, they proceeded towards the place from where noise was coming. After that they

concealed them in the forest and started having vigil over the forest thieves. Subsequently, after sometime they searched the entire area and at around

1 am, they nabbed the accused. This is absolutely improbable. The moment the forest officials would have heard the noise of felling of trees, they

would have raised hue and cry to stop further felling. They were not the police or the investigator to retain the thieves but they were the protectors of

the forest. Thus their version that they kept on waiting is itself suspicious and to cover up the lacunae to protect the forest from felling. It can be

safely believed that to cut 90 trees, it would have taken enough time and that too in the darkness with hand used saws. Undoubtedly, it is not the case

that accused were having machines or motorized saws. Thus the possibility of the forest officials implicating the accused persons on suspicion is writ

large and cannot be ruled out.

The version put-forth by all the three accused persons is that the Oxes of Sheesh Ram had gone missing in the forest and they were searching the

same. The forest officials noticed them in the forest and apprehended them.

Another factor which points towards the false implication is that after accused Sher Mohammand had allegedly absconded, the police upon his

arrest recovered one hand run saw on 8.6.2003 i.e. after a week. To the contrary initial statement reveals that those persons had left behind the tools

used for cutting the trees. Be that as it may there is noting to connect the recovered saw with the felled trees.

Thus on analysis of evidence coupled with improbable story of prosecution, makes the prosecution story unconvincing. Given above, the accused is

entitled to benefit of doubt.

A perusal of the judgment of acquittal passed by learned Sessions Judge is also well reasoned, although it is on different aspect. There is nothing to

interfere in the same.

In the facts and circumstances peculiar to this case, the appeal filed by the State is dismissed. Bail bonds are discharged.