State of Himachal Pradesh vs Sunder Chand

Sanjay Karol, J.—The issue which arises for consideration, in the present appeal, is as to whether findings returned by the Court below, in the absence of criminal intent on the part of the accused, in committing theft of Government property i.e. forest produce, are legally sustainable and born out from the record or not.

Assailing the judgment dated 30.11.2005, passed by Chief Judicial Magistrate, District Kinnaur at Reckongpeo, H.P., in Criminal Case No. 44-3 of 2003, titled as State Versus Sunder Chand, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

Facts emanating from the record, for which accused was charged to face trial, are that he dishonestly cut one Deodar tree from Government land and thereafter converted it into 16 sleepers. Complaint (Ex.PW.2/A) was filed by Inder Singh (PW.1), Forest Guard of Urni Beat, in relation thereof. Ramanand (PW.3), Block Officer, visited the spot and confiscated the cut timber, which was entrusted to Beli Ram on Supurdari vide memo (Ex.PW.1/B). The incident was allegedly witnessed by Ram Krishan (PW.2). 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 was charged for having committed offences punishable under the provisions of Section 379 of the Indian Penal Code and Section 33 of the Indian Forest Act, 1927 (hereinafter referred to as the Act), to which he did not plead guilty and claimed trial.

In order to establish its case, in all, prosecution examined as many as eight witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the defence that complainant is used to lodge false complaints. 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. G.D. Verma, Sr. Advocate assisted by Mr. B.C. Verma, 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, I am 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." "

Significantly independent witnesses Parma Nand (PW.4) and Gopal Singh (PW.5) have not supported the prosecution and despite their extensive cross-examination, nothing fruitful could be elicited from their testimonies. In their testimonies, there is no whisper with regard to any criminal intent or alleged acts on the part of the accused. Perusal of testimony of Inder Singh (PW.1) only reveals that he is not a spot witness. Much reliance is placed on the damage report (Ex.PW.1/A) and a sum of Rs. 5000/- so deposited as damages by the accused. The damage report also does not establish that it is the accused who paid the amount. The amount is paid in cash and not through cheque.

Ram Krishan (PW.2) cannot be said to be a reliable witness, for he admits prior animosity and hostility between him and the accused. He also admits that his entire family stands boycotted by the villagers, which fact stands admitted by Dalhousi (PW.7). The accused, in fact, has taken a defence of false implication by Ram Krishan on account of quarrel with his wife. As such, his defence stands probablized.

Court does not find prosecution to have proved its case, beyond reasonable doubt, by leading clear, cogent, convincing piece of evidence with regard to dishonestly cut Deodar tree from the Government land without the consent of its owner and converted the same into 16 sleepers without any permission from the competent authority. Contradictions and embellishments in the statements of the witnesses which are glaring, material and relevant, are 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 person has 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.