State of H.P. vs Krishan Chand and Another

Surinder Singh, J.—Respondents herein were acquitted for the offences punishable under Sections 41 and 42 of the Indian Forest Act and Section 379 read with Section 34 of the Indian Penal Code, in Criminal Case No. 2-2 of 2003/2002, decided on 30.4.2004. The acquittal of the Respondents has been challenged by the State by filing the present appeal.

Shortly stated, the prosecution story is that during the intervening night of 1st / 2nd February, 2002 at about 12.45 a.m., PW10 ASI Karam Singh was on patrol duty at Bus Stand Rohru. PW3 Constable Madho Ram and Constable Kalam Singh who were on night duty met him on the way and informed him that one Utility vehicle bearing No. HP-10-1045, which came from the side of Shikari Pul had passed through the road in a very high speed and went towards village Chirgaon. Thereafter the police party went on foot towards that direction, around 2 a.m., they reached near ''Fire Brigade Station'', Rohru and noticed the said vehicle parked on the side of the road. Police found the Respondents sitting therein. It was containing ''Deodar'' and ''Kail'' wooden frames of various sizes. Respondent Raju was on the driving wheel, whereas other Respondents Krishan Chand and Raj Kumar were sitting beside him. On being asked, they disclosed their identity. Respondent Krishan Chand claimed the said wooden frames as his own to which he intended to sell it to ''Chand Studio'', Rohru. He also revealed that he has having TD permit, to which he failed to produce. The aforesaid wooden frames were counted and measured, which were 160 in numbers.

Ruqa Ex.PW9/A was sent to the Police Station for the registration of the case, which culminated into FIR Ex.PW9/B. Police took into possession the aforesaid wooden frames alongwith the said vehicle which belonged to ''Hateshwari Apple Growers Marketing Cooperative Society'' Jubbal (District Shimla) vide seizure memo Ex.PW3/A. The size of the wooden frames was as under:

Deodar:

2.00 x0.10x0.04 =32 Nos.

90x0.08x0.04 = 6 Nos.

1.00x0.08x0.04 =35 Nos.

1.10x0.08x0.04 =16 Nos.

1.30x0.08x0.04 =11 Nos.

Total =100 Nos.

Kail:

2.00x0.10x0.04 = 16 Nos.

1.30x0.08x0.04 = 34 Nos.

1.45x0.08x0.04 = 3 Nos.

1.00x0.08xo.04 = 7 Nos.

Total = 60 Nos.

Police also prepared site plan Ex.PW10/A of the place of alleged recovery and took into possession the driving licence of accused Raju copy whereof is Ex.P1, copy of the RC Ex.P2 and copy of the Insurance Ex.P3 were also taken into possession. Respondents were arrested.

During investigation, the said vehicle was released to the Secretary of the Society. Respondent Krishan Chand produced duplicate permit dated 21.5.1988, which was taken into possession vide memo Ex.PW1/A, pertaining to the Kail trees. The timber in question could not be connected with it and this defence appears to be given up by him.

The wooden frames in question were handed over to Forest Guard Kuldeep Singh on supurdari. He put his ''seizure hammer'' on the wooden frames, sample of which was taken on a piece of paper Ex.PW4/B.

After completing the investigation, challan was presented against the Respondents before the learned trial Court for the offences aforesaid. The Respondents were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses. Respondents were also examined u/s 313 of the Code of Criminal Procedure. They denied the circumstances, which were found attendant against each of them. Respondent Krishan Chand admitted having produced the duplicate permit Ex.PW1/B, but according to him, the timber issued against it was already used by him. No evidence in defence was led.

At the end of trial, Respondents were acquitted, on the grounds that witnesses did not prove the case of the prosecution. The recovery of the alleged wooden frames from the vehicle and the place in question was doubtful. There have been major contradictions and discrepancies in the statements of the prosecution witnesses. The independent witnesses though available at least from the ''Fire Brigade Station'' were not joined at the time of recovery. Thus, statements of P Ws 2, 3 and 10 were not sustainable to warrant conviction.

Shri J.S. Guleria, learned Assistant Advocate General forcefully argued that the evidence of the prosecution was not appreciated by the learned trial Court in right perspective. The reasoning for acquittal is manifestly unreasonable and unsustainable. He further submitted that the statements of the prosecution witnesses are consistent. Even against the hostility of PW1 Inder Singh towards prosecution could not cause any dent in the prosecution case. Learned trial Court misinterpreted the statements of the official witnesses and the Respondents could not prove any malice against the police to frame a case against them.

Contra, Shri Y.P. Sood, learned Counsel for the Respondents supported the impugned judgment and further led me through the evidence on record and contended that the grounds for acquittal are borne out from the record, therefore, calls for no interference.

I have given my thoughtful consideration to the rival contentions of the parties and reappraised and legally scanned the evidence on record. In my considered opinion, the acquittal of the Respondents for more than one reason is perverse. The vehicle in question and the Respondents are not the residents of the same revenue estate where the vehicle loaded with wooden frames was apprehended, rather they belong to a quite different Forest Range and Tehsil.

PW3 Constable Madho Singh has supported the prosecution version in toto. During the intervening night aforesaid, he was on patrolling duty. He informed PW10 ASI Karam Singh about the loaded vehicle in question having passed through in a very high speed. Thereafter he accompanied ASI aforesaid alongwith other Constables from Beat No. 2, Bus Stand Rohru and went towards ''Makhi-Nalla''. When they reached near ''Fire Brigade Station'', they noticed the said vehicle loaded with some luggage parked on the side of the road. Respondents were sitting in the said vehicle. ASI Karam Singh asked about their identity and about the contents of the luggage, loaded in the vehicle. On checking the vehicle, wooden frames were recovered, which were covered with jute mats (TAT). On having been asked about its permit, Respondent Krishan Chand claimed it to be his own, but stated that he has a permit to which he could not produce on the spot. The Respondents told that these wooden frames were to be given to ''Chand Studio'' at Rohru. The police brought the Respondents and the loaded vehicle to the Police Station, where the wooden frames were counted and taken into possession vide memo Ex.PW3/A. He identified his signatures on the said memo and also the wooden frames Exts.P1 to P16. In cross-examination, he stated that when the vehicle in question was apprehended, police party was headed by ASI Karam Singh. Wooden frames were in three gunny bags and mats. He admitted that on the spot of recovery, there was a ''Fire Brigade Office'' where the official remains on duty round the clock and residential houses in the surrounding. He also stated that it normally takes 10 to 15 minutes from Bus Stand Rohru to reach the place of recovery. But the above facts which came in his cross-examination do not in any way dislodge the prosecution case against the Respondents.

PW6 Ramesh Kumar had also lent corroboration to his statement. He was meticulously cross-examined by the Respondents. Although he stated that the timber in question was covered from gunny bags, but was not bundled up. This is no contradiction to the statement of ASI Karam Singh or Constable Madho Singh. He also stated that nobody was included from the vicinity when the alleged recovery was effected. Although in cross-examination, he stated that he implicated the Respondents on the basis of suspicion, but categorically stated having recovered the timber in question from the vehicle aforesaid wherein the Respondents were found sitting and failed to explain its possession, thereafter they were arrested. Therefore, there is no question of suspicion. This violated sentence would not cause any dent in the prosecution case, rather suspicion to which police entertained came out to be true when Krishan Chand failed to prove permit.

Further PW1 Inder Singh is a witness with respect to taking in possession the TD permit with respect to the ''Kail'' trees (Ex.PW1/B), which was taken into possession vide memo Ex.PW1/A. Though he was declared hostile with respect to the recovery of the timber since he was not present at the time of alleged recovery, yet his hostility is of no consequence.

PW2 Forest Guard Devender Singh made valuation report Ex.PW2/A. The volume of ''Deodar'' wooden frames (100 Nos. ) was 0-486 cubic feet and that of the ''Kail'' wooden frames (60 Numbers) was 0.304 cubic feet. The value of the Deodar wooden frames was calculated upon its volume, was to the tune of `14,366.16 paise and qua Kail wooden frames it was `6,995.04. In total the value of entire recovered material was `21,361.20. PW4 Constable Bhagwan Chand is a witness to the handing over the wooden frames to Kuldeep Singh on supurdari (Ex.PW4/A).

On the critical examination of the aforesaid evidence, it is absolutely clear that the Respondents during the intervening night of Ist and 2nd February, 2002 were found transporting wooden frames aforesaid and they were intercepted by PW3 Constable Madho Singh and the other police officials, who were on patrolling duty. This information was passed to PW10 ASI Karam Singh, ultimately it was located near the ''Fire Brigade office'', and the residential area in the vicinity. Respondents were also found sitting in the vehicle whereas Respondent Raju was sitting on the driving wheel. When asked, Respondent Krishan Chand claimed the timber to be his own against permit and later produced the TD permit Ex.PW1/A (old permit Ex.PW1/B) pertaining to the year 1988 during Police remand in police custody when he was taken to his native place, in the presence of PW1 Inder Singh. Further Raju Driver had also produced his driving licence and photocopies of R.C. as stated above.

The very conduct of the said Respondent, in the light of the other evidence as discussed above, lead me to the conclusion that the wooden frames in question were being transported by the Respondents in contravention of the H.P. Forest Produce Transit (Land Routes) Rules, 1978 framed u/s 41 and 42 of the Indian Forest Act and amended up-to-date and the discrepancy in the statements of the witnesses with respect to the time taken in reaching the place of recovery and non-inclusion of the independent witnesses from the vicinity is not fatal to the prosecution in absence of any malice imputed to the police party. Statements of the police officials are worth inspiring confidence and they have no axe to grind and implicate the Respondents falsely in the present case. Further, alleged discrepancies pointed out by the learned Counsel for the Respondents, with respect to the wooden frames taken into possession on the spot or in the Police Station, are also of no consequence. The wooden frames aforesaid are proved to have been recovered from the vehicle in question as stated above. The Respondents were not having any permit to transit the aforesaid timber / wooden frames or it contain any export hammer or any property mark. Thus, it was a contravention of the provisions of H.P. Forest Produce Transit (Land Routes) Rules, 1978, framed u/s 41 and 42 of the Indian Forest Act, which is an offence punishable under the Act as well as the Rule framed thereunder.

The penalty clause is provided under Rule 20 of the Rules aforesaid and the person contravening these rules is liable to be imprisoned for a term which may extend to two years or with fine which may extend to `5,000/- or with both and the forest produce being transported may also be seized and dealt with under the provisions of the Indian Forest Act with the proviso added to it. If the offence is committed after the sunset or before sunrise or after resistance to the lawful authority or where the offender has been previously convicted, it is double of the aforesaid penalty.

Thus, the Respondents are hereby held guilty and stands convicted for the offence punishable u/s 41 and 42 of the Indian Forest Act and H.P. Forest Produce Transit (Land Routes) Rules, 1978, as amended vide H.,P. Govt. Notification No. Fis. (A)3-1/77 dated 17.8.1993, however their acquittal for the offence u/s 379 read with Section 34 of the Indian Penal Code is upheld in absence of any evidence of theft.

Insofar as the sentence is concerned, the Respondents are not the previous convicts. The alleged offence had taken place about eight years ago. Thus, keeping in view the torture of trial, time taken in the disposal of the matter, the volume of the timber/wooden frames recovered from the Respondents and also the fact that the offence was committed during the night, the ends of justice would be met in case each of the Respondents is sentenced till rising of the Court and to pay fine of `5,000/-each. In default of deposit of the fine, each of the Respondents shall undergo the simple imprisonment for a period of two months.

The Respondents are hereby directed to be present before the learned trial Court on 12.1.2011, for undergoing the sentence till rising of the Court and to make the payment of fine.

The order of the learned trial Court with respect to the case property i.e. timber/ wooden frames whereby it was confiscated to the State of Himachal Pradesh, is upheld.

The appeal filed by the State is partly accepted.

Send down the records.