The State of H.P. vs Surender Kumar and Others

V.K. Sharma, J.—The state is in appeal against the acquittal of the Respondents, who shall hereinafter be referred to as the accused (denoted as ''A1'', A2'', and ''A3''), pursuant to their trial for the offences under Sections 41 and 42 of Indian Forest Act (''the Act'') and Section 379 of the Indian Penal Code by the learned Judicial Magistrate I Class, Amb, District Una, H.P., vide the impugned judgment dated 14.07.2003.

In brief, the case of the prosecution is that on 18.06.2002, during night time at about 12:10 A.M., a police party led by SI Jagjit Singh and comprising of HC Kavi Dutt, C. Swaran Singh and HC Dhian Singh while on patrol duty was proceeding on Bharwain-Gagret road in government vehicle No. HP-20A-2295. In the meantime, truck bearing No. HP-19-1383 was found coming from Bharwain side. It was being driven by A-2 Suresh Kumar and other two accused were sitting in the truck. The truck was made to stop. On checking the same, was found carrying 30 logs of ''Shehtoot'' and 8 logs of ''Simbal''. On being asked, the accused failed to produce permit for transportation of the logs. Accordingly, ruka Ex. PW7/A was drawn, on the basis of which FIR, Ex. PW-7/B, was registered. The logs being carried in the truck were measured and were taken into possession vide memos, Ex. PW-1/A and Ex. PW-1/B. The truck alongwith its documents was also taken into possession vide memos, Ex. PW-1/C and Ex. PW1/D.

It is further alleged that accused Surinder Kumar made disclosure statement, Ex. PW-2/A, on the basis of which axe, Ex. P3 and saw, Ex. P4, were recovered. The lands from where Shehtoot and Simbal trees were allegedly cut by the accused and converted into logs was also got demarcated vide reports, Ex. PW-5/A and Ex. PW-5/B.

On completion of investigation, the accused were sent up to face trial. On being charged, they did not plead guilty and claimed to be tried. The prosecution evidence followed. It has examined as many as eight witnesses.

On close of the prosecution evidence, the accused were examined u/s 313 Code of Criminal Procedure, wherein they pleaded that they are innocent and have been falsely implicated in this case. In defence they have examined one witness, namely DW-1 Gujjar Singh.

On conclusion of the trial all the accused were acquitted, as already noticed.

I have heard the learned Deputy Advocate General for the Appellant-State, the learned Counsel for the Respondents-accused and perused the record.

The learned trial court has acquitted the accused mainly on the grounds that the demarcation reports, Ex. PW-5/A and Ex. PW-5/B, are not in accordance with the procedure prescribed for carrying out demarcation. No independent witness was joined at the time of recording the alleged disclosure statement, Ex. PW-2/A, made by A-2, Suresh Kumar, and as such the consequent recovery carried out vide memo, Ex. PW-2/B, which is also not witnessed by any independent witness, is of no consequence. The testimonies of the official police witnesses suffer from inherent contradictions. The version set-up by the accused in defence appears to be probable and plausible.

The gravamen of charge against the accused under Sections 41 and 42 of the Indian Forest Act and Section 379 of the Indian Penal Code is to the effect that they had cut and removed and thereby committed theft of eight trees of Shehtoot and one tree of Simbal belonging to PW-6 Tarsem Lal and his brothers Sansar Chand, Surinder Pal, Ashok Kumar and one Amar Nath and had been intercepted by the police while transporting the timber of the aforesaid trees comprising of 30 logs of Shehtoot and 8 logs of Simbal without valid permit. However, the record reveals that the revenue record, such as, copies of jamabandi and Khasra Gardwari pertaining to the lands from where the accused had allegedly cut and removed the aforesaid trees and had thereby committed the offence of theft, was not either taken into possession or has not been brought on record. In the absence of such record, it is absolutely difficult to ascertain the ownership of the land from where the aforesaid trees were allegedly cut and removed by the accused. It is also for this reason that the demarcation reports, Ex. PW-5/A and Ex. PW-5/B loose their very veracity.

Another aspect of the matter which cannot be overlooked is that demarcation reports, Ex. PW-5/A and Ex. PW5/B, are not supported by any Aks-tatima or Field Book.

Since it is alleged that when the offending vehicle, in which the aforesaid logs were being carried, was intercepted by the police, during the night, intervening 17/18.06.2002 at 12:10 A.M., presence of any independent witness on the spot at that time could not have been expected and no fault can be found with the prosecution case in this regard. But, disclosure statement, Ex. PW-2/A, was allegedly made by A-2, Suresh Kumar only on the next day, i.e., 19.06.2002 and the consequent recovery vide memo Ex. PW-2/B is also of the same day. However, both these documents have been witnessed only by one official witness, namely HHC Raghu Nath Singh, there being no other independent witness to the same. This casts serious doubt on the veracity of both these documents as also the very case of the prosecution. No explanation is coming forth in this behalf.

Coupled with the discrepancies and contradictions in the testimonies of the official police witnesses noticed by the learned trial court in the impugned judgment dated 14.07.2003 and the reasons stated hereinabove, I find no reason to differ with the findings returned by the learned trial court under the impugned judgment dated 14.07.2003 that the prosecution was not able to bring home guilt against the accused beyond reasonable doubt. Accordingly, the appeal is dismissed.