JUDGMENT Surinder Sarup, J. (Onal): This appeal is directed against the acquittal of Vinod Kumar, respondent by the Court of Sh. Ashwani Kumar Sharma, Judicial Magistrate, 1st Class, Court No. l, Mandi for alleged offence under sections 41,42 of the Indian Forest Act read with Rule 4 of H.P. Forest Produce Transit Rules, 1982. 2. The prosecution case against the respondent is that on 23.7.1989 when A.S.I. Krishan Lal alongwith Head Constable S/Sh. Bal Banka Ram and Kashmir Singh was on checking duty at Hanogi on Mandi- Kullu National High Way alongwith Man Singh, witness at about 10- 45 P.M. At that time a taxi bearing registration No.HPY-1218 came from Kullu side. It was stopped at the checking point by the police party and was checked by them. Underneath the back seat of the vehicle 14 logs (nugs) of Deodar timber were recovered. The taxi driver could not produce any document pertaining to the transit of the timber. His name was Vinod Kumar, and on his failure to produce any relevant document pertaining to the transit of timber, a ruka was sent to Police Station, Aut for the registration of case. Thereafter, the police party carried further investigation of the case during the course of which the vehicle taxi No.HPY-1218 alongwith documents was taken into custody and the timber found therein thus seized was subsequently handed-over on spurdari to Puran Chand, Forest Guard. The police party also prepared recovery note and the Spurdari note and the site plan, has also been drawn up. Later, during the investigation, they recorded the statements of witnesses under section 161 Cr. P.C. and a prima facie case having been found against the respondent for the offences under sections 41 and 42 of Indian Forest Actread with Rule 4 of H.P. Timber Produce Transit Rules,-1982, Challan was presented before the Court after completing the investigation for the trial of Vinod Kumar. 3. Copies of the challan and other relevant documents were supplied to the accused and after hearing the State counsel as well as the learned defence counsel, the trial Court found that a prima facie case has been made out against respondent Vinod Kumar for the offences under sections 4 L and 42 of Indian Forest Act read with Rule 4 of H.P. Forest Produce Transit Rules, 1982. After completing the formalities as required at the time of framing the charge, the same was read over and explained to him to which he pleaded not guilty and claimed to be tried. 4. During the trial, prosecution examined 9 witnesses in all and also relied on the site plan, recovery memos, F.I.R. etc. on the close of the prosecution evidence, in his statement under section 313 Cr. P.C, the respondent denied the prosecution allegations in toto. In defence he further stated that there was no timber in the vehicle at the time of the checking of the same by the police. Three passengers sitting in the taxi, fled away at the time of the checking. He further took a plea that he had falsely been implicated in the case. He further did not give the evidence in defence. 5. Thereafter, the learned trial Court after meticulously appreciating and appraising the prosecution evidence, came to the conclusion that the prosecution had failed to prove its case against the accused beyond a reasonable doubt therefore, granting the benefit of the same he has been acquitted by the impugned judgment dated 19-9-1990. 6. The learned Assistant Advocate General as well as the learned counsel for the respondent Sh. Rama Kant Sharma have been heard at length and the record of the case has been scrutinized with their assistance. 7. The learned Assistant Advocate General has vehemently pleaded and has challenged the impugned judgment on the ground that mere failure to produce the case property as in the instant case, is not fatal to the prosecution, it being an irregularity and not an illegality. He has also argued that the so called contradiction between the statements of the recovery witnesses, which are otherwise minor in nature and not fatal to the prosecution case as a whole. On the other hand, the learned counsel for the respondent has fully supported the reasoning adopted by the learned court below and has submitted that considering the nature of the evidence, the respondent has been rightly acquitted. 8. This Court has bestowed consideration thought and deliberation on the respective contentions advanced by both the sides. There is considerable force in the argument of the learned Assistant Advocate General that mere failure to produce the case property is not fatal to the prosecution case in the offence of the present type. 8. This Court has bestowed consideration thought and deliberation on the respective contentions advanced by both the sides. There is considerable force in the argument of the learned Assistant Advocate General that mere failure to produce the case property is not fatal to the prosecution case in the offence of the present type. However, if the said omission is read alongwith the statements of the alleged recovery witnesses, stated to be independent witnesses, the argument loses its force. 9. From para-10 onwards, the learned trial court has appreciated and discussed the evidence of the two recovery witnesses. He had found that whereas out of PW-3 Man Singh and PW-4 Prem Singh, one of them has stated that no tea was taken by the police party in his tea shop. However, PW-3 Prem Singh has stated that police party had taken tea on that night at the shop of Man Singh on two or three occasions. This cannot be said to be a minor discrepancy. The arguments raised on behalf of the defence before the learned trial Court that the witnesses having made intentional false statements their depositions are to be rejected in toto, suffering as they do from material contradictions. In this connection, the learned trial Court has relied on the observations in the case reported as A.I.R. MB. 249. It has been laid down therein that the maxim falsus in unofalsus in omnibus is not applicable in India where confied rules of evidence exist and it is open to the Court to accept a part of the evidence of the witness while rejecting the rest of it. However, it has further been laid down in this authority that the principles on which the Court so acts is not though a witness has deliberately made some false statement, he may yet be considered to be a truthful witness as regards some other statements. The Court however, acts on the principle that certain statements of such a witness being corroborated by the probabilities of the case and other reliable evidence appear to be true and should, therefore be accepted. 10. However, although the initial impression created by the impugned judgment is that the trial Court has held the contradiction between the statements of the two recovery witnesses as material. Para-11 completely takes a U-turn in the matter and he has held the contradiction not to be material one. 10. However, although the initial impression created by the impugned judgment is that the trial Court has held the contradiction between the statements of the two recovery witnesses as material. Para-11 completely takes a U-turn in the matter and he has held the contradiction not to be material one. In other words, the Court below is blowing hot and cold in the same breath. To sum up, to say the least, this approach of the learned Court in dealing with a serious case of this type in a very slip shod manner and carelessness calls for the severest possible criticism. I hold accordingly. 11. Right uptil para-11 of the impugned judgment, the trial Court is one with the prosecution that despite the inherent weakness observed in the prosecution case, it docs not completely demolish it. However, in para-11, without rhyme and reason it has done a Volte face and has given the benefit of doubt to the prosecution despite the contradictions in the statements of witnesses, rather than giving the benefit to the accused who under the criminal law of the land was entitled to it. 12. It appears from para-12 that the only substance on which the trial Court has disbelieved the prosecution is its failure to produce the case property. Thus, as already argued, the learned lower Court has acted as prosecutor. At the cost of repetition, in the present case, having found inherent weakness in the prosecution case in the shape of material contradiction in the statements of the recovery witnesses, supposed to be independent witnesses, he has yet given the benefit to the prosecution. It is held to be a major consequence. Therefore, this entire approach of the learned trial Court is to be condemned with all the force at ones command which I do so accordingly. The teamed trial Court will be well advised to refresh its memory regarding the settled genesis which governs the criminal law in this Country with the touchstone that it is better that ten guilty men may escape rather than one innocent man be punished and also the benefit of doubt must always be given to the accused and not to the prosecution (as has been done in the instant case by the learned lower Court). 13. 13. As a result of the above discussion, this Court is of the considered view that the entire case needs to be examined afresh by application of mind of another Presiding Officer of the learned lower Court below. In this connection, it has been submitted by Sh. Rama Kant Sharma that the occurrence took place in the year 1989 and almost 8 years has elapsed since then, the sword of Damocles as regards this case has been hanging on the head of the respondent and his agony would be compounded by prolonging this case. Be that as it may, but the entire approach of the learned lower Court in this case has resulted in failure of justice and thus it is appropriate to call for interference of this Court. 14. For the reasons recorded above, this appeal is allowed. The impugned judgment passed by Sh. Ashwani Kumar Sharma, Judicial Magistrate 1st Class, Court No. l, Mandi dated 19-9-1990 is set aside and the case is scat back to the successor Court for a fresh trial in accordance with law in the light of the observations contained above. It is made clear that the learned Court below shall proceed on the evidence already on record, and shall not take any further additional evidence on behalf of the either party, it shall proceed to complete the trial expeditiously preferably within three months from the date of the receipt of the record of the case from this Court. Of Course, an opportunity of being heard should be given to both the parties before the judgment is pronounced. Normally, a copy of this judgment should have been sent to Sh. Ashwani Kumar Sharma. However, it is stated by the learned counsel for both the parties that he has left service and joined the Bar to practice as a Lawyer in the High Court. In any case, this judgment is referred to (he Reporter for the future guidance of all the Judicial Officers in the State so that they may avoid similar pitfalls in future.