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2002 DIGILAW 234 (HP)

ARJUN SINGH v. STATE OF H. P.

2002-08-23

M.R.VERMA, R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—The abovenoted two appeals arising out of the judgment dated 29.6.2000 of the learned Additional Sessions Judge, Solan, in sessions trial No. l-NL/7 of 1998 are being disposed of together by this single judgment. 2. The nine respondents in Criminal Appeal No. 684 of 2000, namely, S/Shri Jagdish Chand, Narinder Kumar, Arjun Singh, Raju, Rakesh Kumar, Tej Singh, Jai Gopal, Sher Bahadur and Vinod Bahadur (hereinafter respectively referred to as Al to A9) were tried for the offences under Sections 147,395/149,396/f 149 and 353, Indian Penal Code and for the offence under Section 41/42, Indian Forests Act. The learned trial Court vide its judgment dated 29.6.2002 ^quitted Al, A2, A4, A5, A6 and A8 of all the offences charges against them. A9 was also acquitted of the offences under Sections 147, 395/149, 396/149 and 353, Indian Penal Code. He was convicted only for the offence under Section 41/42, Indian Forest Act and sentenced to simple imprisonment for two years and fine of Rs. 5,000. In default of payment of fine, he was sentenced to undergo simple imprisonment for a further period of three months. A3 (Arjun Singh) and A7 (Jai Gopal) though were acquitted of the offence under Section 147, Indian Penal Code, were convicted for the offences under Sections 395, 396 and 353, Indian Penal Code, and under Section 41/42, Indian Forests Act and upon such conviction each one of them was sentenced as under:— (a) simple imprisonment of two years for the offence under Section 353, Indian Penal Code; (b) rigorous imprisonment for seven years and fine of Rs. 10,000 for the offence under Section 395, Indian Penal Code. In default of payment of fine, rigorous imprisonment for a further period of six months; (c) rigorous imprisonment for seven years and fine of Rs. 10,000 for the offence under Section 396, Indian Penal Code. In default of payment of fine, rigorous imprisonment for a further period of six months; and (d) simple imprisonment for two years and fine of Rs. 5,000 for the offence under Section 41 /42, Indian Forest Act. In default of payment of fine, simple imprisonment for a further period of three months. 3. All the substantive sentence of imprisonment in respect of A3 and A7 were directed to run concurrently. 4. Briefly, the prosecution story may be thus stated. 5,000 for the offence under Section 41 /42, Indian Forest Act. In default of payment of fine, simple imprisonment for a further period of three months. 3. All the substantive sentence of imprisonment in respect of A3 and A7 were directed to run concurrently. 4. Briefly, the prosecution story may be thus stated. PW 21 Sita Ram is working as a Chowkidar with the H.P. Forest Corporation since 1993. In the year 1997 he was posted as night Chowkidar at the Resin Depot of the Forest Corporation at Taker. One Ram Lok son of Hari Ram (hereinafter referred to as the deceased) was also posted as night Chowkidar alongwith PW 21 at the said Resin Depot. On 28.10.1997 PW 21 and the deceased were on duty. At about 11 p.m. when PW 21 and deceased were sitting in a room adjacent to the resin depot, 8/10 persons came at the door and threatened to kill them if they tried to move or raise an alarm. 2-3 persons then stood posted at the door while others started lifting and carrying the resin tins towards the road above. When PW 21 and the deceased tried to stop the said persons from lifting and carrying the resin tins, the persons posted at the door attacked the deceased by hitting him on the head with a weapon. PW 21 then rushed out and raised an alarm that resin was being stolen and that the deceased had been assaulted. On hearing such alarm a number of persons from the village came to the spot whereupon those 8-10 persons fled away. Truck Bearing No. HP-51-2556 was found parked on the road in which the said persons before fleeing had loaded the stolen resin tins. Nineteen tins were found loaded in the said truck, which truck bore the name of its owner as Dharmender Sharma son of Ramesh Chand Sharma, village Bumti, Tehsil Arki, District Solan. One of those 8-10 persons was nabbed while fleeing, who was A-9 and handed over to Babu Ram, Pradhan of Gram Panchayat. 5. A case for the offence under Sections 379, 382, 120-B, 323 and 506, Indian Penal Code and under Section 41/42, Indian Forest Act, came to be registered vide FIR Ex. PA. 6. One of those 8-10 persons was nabbed while fleeing, who was A-9 and handed over to Babu Ram, Pradhan of Gram Panchayat. 5. A case for the offence under Sections 379, 382, 120-B, 323 and 506, Indian Penal Code and under Section 41/42, Indian Forest Act, came to be registered vide FIR Ex. PA. 6. The deceased was subjected to medical examination at District Hospital, Bilaspur, on 29.10.1997 at about 10.15 a.m. Such medical examination was carried out by PW 6 Dr. S.D. Bharwal. Following injuries were found on his person:— 1. Clean lacerated wound right mid of leg in front of Tibia, size 2 cm. x 1/2 cm. 2. Left eye was black, acaymosis of the upper and lower eye lids, eye underneath could not be opened. 3. One clean lacerated wound on left forehead 2 cm. x 0 cm. It was skin deep and bleeding. 4. Right frontopriatal clean lacerated wound 3 cm. x 1/2 cm. long. Injury skin deep. 5. Temporal (left side) 5 cm. long clean lacerated wound vertically placed involving muscle cut through and through. 6. Clean lacerated wound just above the left pinna, 1/2 cm. x 1/ 2 cm. in size, it was bleeding and clot was present. 7. Forehead had a clean lacerated wound 3 cm. x 1/2 cm. in size, bleeding and the stitched wound was stitched and layers. He was advised X-ray skull, A.P. and lateral view. He was also advised city scan of brain. He was admitted in male surgical ward on bed No. 2 for expert treatment. The general condition of this patient was poor to fair and he was in semi comatose state. He had no deficit on the examination of central nervous system. His plus was 96 per minute and blood pressure was 110 x 70 on admission. The cardio vascular and chest examination was unremarkable. 7. It was further observed by PW 6 that the injured (deceased) was in a semi comatose state. He was not able to sign and was not fit to make a statement. Injuries No. 1 and 2 were opined to be simple in nature. Rest of the injuries, namely, injuries No. 3 to 7 clubbed together were opined to be dangerous to life. The injured was admitted in the hospital as an indoor patient and he died in the hospital on 30.10.1997. 8. Injuries No. 1 and 2 were opined to be simple in nature. Rest of the injuries, namely, injuries No. 3 to 7 clubbed together were opined to be dangerous to life. The injured was admitted in the hospital as an indoor patient and he died in the hospital on 30.10.1997. 8. The dead body of the deceased was subjected to post-mortem which was conducted by PW 7 Dr. N.K. Sankhyan. In his opinion the deceased died due to asphyxia as a result of compression of brain due to ante mortem injury over the left parieto temporal region. 9. Investigation revealed that PW 22 Budh Ram, resin contractor, was present in village Taker on 28.10.1997 at about 11.15 p.m. or 11.30 p.m. and on hearing about the occurrence had gone to the spot alognwith PW 9 Jagdish Kumar and one Devinder. He found a truck bearing No. HP-51-2556 parked on the road near the resin depot. Nineteen tins of resin were found loaded in the truck. He also found the deceased lying injured in a critical condition. He, accordingly, with the help of Babu Ram Pradhan (PW 1) shifted the deceased to the hospital. Thereafter PW 22 accompanied by PW 1 went towards Jai Nagar and while returning from Jai Nagar they came across a Van bearing No. HP-02-3321 at Bendi. Two persons came out of the Van and started running downhill towards a Khad. Such persons were A3 and A7. They were chased and apprehended, brought to Loharghat and handed over to the Panchayat Chowkidar. While PW1 and PW 22 were coming to Loharghat, they met A9 on the way A9 was caught about half a kilometre from Resin Depot. He was also handed over to the Panchayat Chowkidar. 10. Investigation further revealed that all the respondents Al to A9 had formed an unlawful assembly with the object of committing theft at the Resin Depot and in furtherance of their common object on the night of 28.10.1997 had gone to the Resin Depot at Taker. While they were removing and lifting the resin tins, they were stopped by PW 21 and the deceased. The respondents Al to A9 then assaulted the deceased resulting to his death. 11. After the completion of investigation, Al to A9 were sent up for trial for the offence detailed above. Al to A9 pleaded not guilty. Their defence is that of denial and false implication. The respondents Al to A9 then assaulted the deceased resulting to his death. 11. After the completion of investigation, Al to A9 were sent up for trial for the offence detailed above. Al to A9 pleaded not guilty. Their defence is that of denial and false implication. 12. The prosecution in support of its case examined twenty five witnesses in all. One witness has been examined in defence. The learned Additional Sessions Judge on consideration of the material placed on record convicted and sentenced A3, A7 and A9 and acquitted Al, A2, A4, A5, A6 and A8 as aforesaid. Hence the present two appeals, that is, one by the convicts A3 and A7 and the second by the State against the acquittal of Al to A9 of various offences. 13. We have heard the learned Counsel for the parties and have also gone through the record of the case. 14. The only eye witnesses of the occurrence is alleged to be PW 21 Sita Ram, at whose instance the present case came to be registered. The statement of this witness recorded under Section 154, Code of Criminal Procedure is Ex. PW 21/A. In such statement he stated:— ".....As usual, 0^28.10.1997 also I and Ram Lok came to discharge our duties at 6 p.m. At about 11 p.m. when we were sitting in the room adjacent to the resin store, about 8-10 persons came near the door and threatened to kill us if we moved and raised any alarm. About 2-3 persons out of the aforesaid persons stood posted at the door and the remaining started carrying resin to the road above. When both of us tried to stop aforesaid persons from carrying away resin, the persons standing at the door pounced, on Ram Lok and hit him on his head with some weapon. There upon I rushed outside and raised alarm that resin was being stolen and that Ram Lok had been assaulted. Thereupon, the villagers had gathered at the spot and the aforesaid persons fled from the spot." 15. It is significant to note that in such statement PW 21 had not given either the name or the description of the persons who are alleged to have come to the resin depot to commit theft of resin and who are alleged to have assaulted the deceased Ram Lok. 16. It is significant to note that in such statement PW 21 had not given either the name or the description of the persons who are alleged to have come to the resin depot to commit theft of resin and who are alleged to have assaulted the deceased Ram Lok. 16. While deposing in Court, PW 21 has deposed as under:— ".....On 28.10.1997 I and Ram Lok was on duty at 11 p.m. night. I was lying on the bed and Ram Lok was sitting on the bed. Thief came to steal the resin. Ram Lok told me that resin had been stolen. Two persons were fighting with Ram Lok on the door. I raised an alarm and people assembled. Accused Jai Gopal and Arjun scuffled with Chowkidar Ram Lok, who are present in the court today." 17. Thus, as per the version given to the Court by PW 21, only two persons namely, Jai Gopal (A7) and Arjun (A-3) had come to the resin depot to commit theft of resin and they had scuffled with the deceased. PW 21, therefore, has not supported and corroborated his earlier version given to the police vide his statement Ex. PW 21/A. 18. If the version given by PW 21 in the court that only two persons had come to the resin depot to steal the resin and that they had assaulted the deceased, is accepted, then the offences charged against A 1 to A9 under Sections 147,395 and 396 Indian Penal Code would fail on this short ground alone. There is no evidence to suggest that though two persons had gone to steal the resin, it was in furtherance of common object and intention of Al to A9. 19. Admittedly, all the accused Al to A9 belong to different parts of the State. There is nothing on the record to suggest that anyone of them was known to the witnesses since prior to the occurrence. They are alleged to have been seen by PW 21 for the first time on the day of occurrence. It is also not denied that no test identification parade was got conducted during the course of investigation. The witnesses have identified the accused only in the Court. They are alleged to have been seen by PW 21 for the first time on the day of occurrence. It is also not denied that no test identification parade was got conducted during the course of investigation. The witnesses have identified the accused only in the Court. In their statements recorded either under Section 154 or under Section 161, Code of Criminal Procedure during the course of investigation, none of the witnesses gave any description of the culprits nor did they gave any identification marks, such as, stature of the culprits, whether they were fat or thin, or of fair or of dark complexion. In the absence of such description, it is not possible for us to rely upon the identification of A-l to A-9 made by the witnesses in the court and that too after about a period ranging from one to more than two years from the date of the alleged occurrence. 20. In Wakil Singh and others v. State of Bihar, AIR 1981 Supreme Court 1392, the witnesses in their statements had not given any description of the dacoits. The test identification parade during the course of investigation was carried out after about 3-1/2 months of the dacoity. It was held that in view of long lapse of time, it was not possible for any human being to remember the features of the accused. The evidence as to the identification of the accused was discarded. 21. In Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and others, AIR 1998 Supreme Court 3031, though a test identification parade was held during the course of investigation, it came in evidence that before such test identification parade, the photographs of the four accused were shown to the witnesses. It was held that this made the test identification parade as well as identification of the accused in court worthless. 22. Again in Shaikh Umar Ahmed Shaikh and another v. State of Maharashtra, AIR 1998 Supreme Court 1922, the evidence as to identification of the accused in court as well as during test identification parade was disbelieved and discarded on the ground that the accused were possibly shown to the witnesses before the test identification parade. 22. Again in Shaikh Umar Ahmed Shaikh and another v. State of Maharashtra, AIR 1998 Supreme Court 1922, the evidence as to identification of the accused in court as well as during test identification parade was disbelieved and discarded on the ground that the accused were possibly shown to the witnesses before the test identification parade. The Honble Supreme Court observed: "The Designated Court after having rejected the evidence of identification parade on the ground that the suspects were possibly shown to the witnesses, relied upon the evidence of identification of the accused in the Court by the two witnesses and on that evidence recorded conviction against the appellants. No doubt the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. It is true that in the present case, PW 2 and PW 11 identified the two accused who are the appellants before us in the Court. But, the question arises what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by PW 2 and PW 11 by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the Court by the two eye-witnesses and had caused failure of justice." 23. Dealing with the question as to when the holding of a test identification parade is necessary, the Honble Supreme Court in Mohd. Dealing with the question as to when the holding of a test identification parade is necessary, the Honble Supreme Court in Mohd. Iqbal M. Shaikh and others v. State of Maharashtra, (1998) 4 Supreme Court Case 494, has held that if the witness knew the accused persons either by name or by face, the question of the police showing him the accused persons becomes irrelevant. If the witness did not know the accused persons by name but could only identify from their appearance then a test identification parade was necessary, so that, the substantive evidence in court about the identification, which is held after a fairly long period, could get corroboration from the identification parade. It was further held that if the police shows the accused persons in the police lock-up to the identifying witness(s) then the so called identification loses its value, inasmuch as it is only because of the police showing the persons the witness(s) is being able to identify alleged accused. If the accused has been shown to the witness(s) in the course of investigation then the so-called identification in Court is of no consequence and cannot form the basis of conviction. 24. In Raju alias Rajendra v. State of Maharashtra, (1998) 1 Supreme Court Cases 169, it was held that where the accused is not known to the witnesses from before and no test identification parade is held immediately after the arrest of the accused, identification of the accused by the witnesses for the first time in court and that too about l-l/i years after the incident is not reliable. 25. Further in State of H.P. v. Lekh Raj and another, (2000) 1 Supreme Court Cases 247, the Honble Supreme Court has held : "During the investigation of a crime the police agency is required to hold identification parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature inherently of a weak character. This court in Budhsen v. State of U.P., held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant." 26. In the present case as well in view of the admitted fact that Al to A9 were not known to the witnesses, in the absence of the test identification parade, the evidence of the prosecution as to the identity of Al to A9 to be the culprits cannot be accepted and relied upon. 27. In the present case as well in view of the admitted fact that Al to A9 were not known to the witnesses, in the absence of the test identification parade, the evidence of the prosecution as to the identity of Al to A9 to be the culprits cannot be accepted and relied upon. 27. It was contended on behalf of the State that in so far as Al Jagdish Chand is concerned, he was not a stranger since PW 3 Ram Dittu had been seeing him during the truck, in which the stolen tins of resin were found loaded, in the area for the last about one year. The solitary statement of PW 3 that he has been seeing Al driving the said truck is not sufficient to connect Al with the crime. Admittedly, PW 3 had not seen any of the culprits at the time of occurrence. The prosecution has tried to connect Al with the crime by showing that at the relevant time Al was the driver of the truck bearing No. HP-51-2556 in which the stolen tins of resin were loaded for being carried away. 28. It is the prosecutions own case that the said truck is owned by one Dharmender Sharma. The record of the case also shows that such truck after having been seized by the police was released to the said Dharmender Sharma, owner thereof. Surprisingly enough, this Dharmender Sharma, was neither associated during the investigation of the case nor has been examined in the court to show if Al was his driver and was driving the said truck on the relevant date. 29. In supporting the conviction and sentence imposed upon A3 and A7 by the learned Court below, it was contended on behalf of the State that both these accused on having been apprehended by PW 1 near Bendi had made an extra judicial confession before PW 1, PW 3, PW 22 and PW 24. 30. The evidence of PW 1, PW 3, PW 22 and PW 24 as to the making of the extra judicial confession is self contradictory and not safe to be relied upon. According to PW 1 Babu Ram on 28.10.1997 PW 22 Budh Ram had come to his house to intimate about the theft at the resin depot and that the culprits had fled away in a van bearing No/HP-02-3321. According to PW 1 Babu Ram on 28.10.1997 PW 22 Budh Ram had come to his house to intimate about the theft at the resin depot and that the culprits had fled away in a van bearing No/HP-02-3321. PW 1 then informed PW 3 on telephone. He then accompanied by PW 22 went on his scooter from one side and from the other side PW 3 and PW 24 came on their vehicle. Near Bendi he found Maruti Van No. HP-02-3321 having been stopped by PW3. The two occupants of the van, namely, A3 and A7 came out of the van and started running down the hill slope. They were chased, apprehended and brought to the road head. A3 and A7 upon enquiry disclosed their identify and then are alleged to have confessed that they 8-10 persons had come to commit the theft of resin at Taker and had loaded nineteen tins of resin in a truck and that they had assaulted the Chowkidar of the resin depot. Such extra judicial confession, as per the version of PW 1, was made by each A3 and A7 independent of each other in the presence of PW 1, PW 2, PW 22 and PW 24. 21. PW 3 Ram Dittu, on the other hand, has deposed that on being informed by PW1 about the occurrence, he alongwith PW 24 left in search of the culprits. When he and PW 24 reached near Bendi, they spotted a car coming from the opposite direction. They blocked the road with the help of their vehicle. The car stopped which was bearing registration No. HP-02-3321. There were two occupants in the car. On being asked they disclosed their identity and also stated that they had gone to commit theft of resin at Taker and that they had given beatings to the Chowkidar, In the meanwhile, PW 1 accompanied by PW 22 came there on a scooter and the two occupants of the car, namely, A3 and A7 jumped towards the hill slope. They were chased, apprehended and brought to the road head. Both A3 and A7 were then brought to Loharghat and handed over to PW 1, who kept them in the premises of the Panchayat. They were chased, apprehended and brought to the road head. Both A3 and A7 were then brought to Loharghat and handed over to PW 1, who kept them in the premises of the Panchayat. According to this PW 3, the extra judicial confession by A3 and A7 was made in his presence and in the presence of PW 24 before the arrival of PW 1 and PW 22. Thus, he contradicts PW 1 in respect of the making of extra judicial confession by A3 and A7 in the presence of PW 1 and PW 22. 22. PW 22 Budh Ram has not stated that he had gone to PW 1 to inform him about the occurrence, as claimed by PW 1. According to his version while he was shifting the deceased to the hospital, PW 1 had accompanied him from the spot. They then went to Jai Nagar and while returning from Jai Nagar, near Bendi they came across Van No. H.P 02-3321. Two persons, that is, A3 and A7 came out of the Van and started running down the hill slope. They were chased and apprehended by him and PW 1 and then brought to Loharghat and kept in the premises of Panchayat on being handed over to the Chowkidar of the Panchayat. PW 22 has not stated anything with regard to the making of extra-judicial confession either by A3 or by A7 either in his presence or in the presence of PW 1, PW 3 and PW 24. He has in fact not stated even with regard to PW 3 and PW 24 having come to the place near Bendi where A3 and A7 are alleged to have been apprehended. 23. Similarly, PW 24 Chaman Lai who is alleged to have accompanied PW-3, has deposed that the two accused A3 and A7 on having been apprehended near Bendi were brought to Loharghat and left in the custody of PW 1. This witness also has not stated anything about the alleged extra-judicial confession by A3 and A7. 24. Apart from the fact that the evidence of the prosecution, as pointed out above, as to the making of extra-judicial confession by A3 and A7 is self contradictory. It is significant to note that admittedly A3 and A9 were not known to PW 1, PW 3, PW 22 and PW 24. They were strangers to them. 24. Apart from the fact that the evidence of the prosecution, as pointed out above, as to the making of extra-judicial confession by A3 and A7 is self contradictory. It is significant to note that admittedly A3 and A9 were not known to PW 1, PW 3, PW 22 and PW 24. They were strangers to them. It cannot be believed that A3 and A7 would have made a confession to utter strangers. 25. The Apex Court in Heramba Brahma and another v. State of Assam, AIR 1982 SC1595, in para 18 of the report has held that extra judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reasons or motive for confession and person selected in whom confidence is reposed. 26. In Rahim Beg v. The State of U.P. AIR 1973 SC 343, the apex Court while examining the evidence as to extra-judicial confession made by the two accused therein to one Mohd. Nasim Khan, has observed: "There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohd. Nasim Khan and blurt out a confession." 27. The same principle was reiterated in Heramba Brahma and another v. State of Assam, AIR 1982 SC 1595, where an extra judicial confession was claimed to have been made by the accused therein to an under trial prisoner, who was awaiting trial for the offence of dacoity. 28. In State of Haryana v. Rajinder Singh, 1996 (8) SCC 77, where the extra-judicial confession was alleged to have been made to the father of the deceased, the apex Court disbelieved the same since the same was shown to have been made to the father of the deceased and that too in presence of two co-villagers. It was observed that it could not be acceptable that the accused would make a confession of a heinous crime in the presence of so many persons. 29. No reliance, therefore, can be placed on the alleged extra-judicial confession. In fact no such extra-judicial confession has been proved to have been made either by A3 or A7. For the self same reasons the alleged extra-judicial- confession of A9 cannot be relied upon. 30. 29. No reliance, therefore, can be placed on the alleged extra-judicial confession. In fact no such extra-judicial confession has been proved to have been made either by A3 or A7. For the self same reasons the alleged extra-judicial- confession of A9 cannot be relied upon. 30. The evidence coming on the record as to apprehension of A9 is also self contradictory and as such cannot be relied upon. As per PW 21 Sita Ram, the alleged sole eye witness of the occurrence in his statement Ex. PW 21/A made under Section 154, Code of Criminal Procedure, A9 was apprehended at the spot at Taker by him and some residents of the village while he was trying to run away. While appearing in Court as PW 21, he has deposed that A9 was caught at 6 a.m. He however, did not state from where A9 was apprehended. 31. PW 1 Babu Ram has deposed that when he returned to Loharghat after having apprehended A3 and A7 near Bendi, he found A9 having already been apprehended by the villagers. PW 2 Jaipal who had reached the spot after hearing the noise and had carried the deceased in an injured condition to his house, has deposed that on his return from his house after leaving the injured there, he found A9 having been apprehended by the villagers. PW 3 Ram Dittu has also deposed that after leaving A3 and A7 at the premises of the Panchayat at Loharghat when he reached Taker, he found A9 having been apprehended by the villagers. According to PW 9 Jagdish Kumar, A9 was apprehended by him, PW 22 Budh Ram, PW 21 Sita Ram and PW 10 Baldev at Taker near the resin depot. PW 10 Baldev has a different story to tell. He has deposed that on the morning of 29.10.1997 when he went to the resin depot, he found A9 having been caught and apprehended by PW9 and PW 21. PW 22 Budh Ram claims that A9 was caught by him and PW1 from a place about half kilometre away from Taker towards Loharghat when A9 was coming from jungle. 32. Nineteen tins of resin are alleged to have been stolen from the resin depot at Taker. Such tins were found loaded in the truck bearing No. HP 51-2556. The same were seized by the police. 32. Nineteen tins of resin are alleged to have been stolen from the resin depot at Taker. Such tins were found loaded in the truck bearing No. HP 51-2556. The same were seized by the police. Out of these nineteen tins, seventeen tins are shown to have been handed over to PW 23 Santosh Kumar while the remaining two tins were retained by the Investigation Officer as case property for being produced in Court during trial as evidence. 33. Ex. PW 9/A is the abstract from the resin stock register being maintained by PW 9 at the resin depot at Taker. A perusal of the same shows that as on 15.10.1997 a stock of 321 tins of resin was lying in such store. On 8.11.1997, that is, about 11 days after the occurrence 302 tins are shown to have been despatched to Resin and Turpentine Factory, Bilaspur, leaving a balance of 19 tins at the resin depot. As per this abstract there was no short fall in the stock. Therefore, the story of the prosecution that 19 tins were stolen also stands belied. 34. Though Ex. PW 9/A contains an endorsement that 19 tins were stolen on the night of 28.10.1997 and that two tins had been retained by police while seventeen tins have been entrusted to PW 23 on supardari, there is nothing on the record to show as to who made such endorsement and when. Admittedly, the register was being maintained by PW 9 and remains in his custody. It is not the case of PW 9 that the endorsement on Ex. PW 9/A regarding the theft of nineteen tins was made by him and when. Admittedly, no physical verification of the stock of resin was carried out by anyone immediately after 28.10.1997 in order to see if there was any shortage. Besides, the entry showing nineteen tins in balance in the stock points out that there was no shortage and as such no theft was committed. 35. A3, A7 and A9 have also been convicted for the offence under Section 41/242, Indian Forest Act. There is ho denying that none of these accused was apprehended while transporting resin without a valid permit. According to the police, resin was found loaded in the truck parked near the depot. It has been held in Prem Kumar Malik v. State of Himachal Pradesh, 2000 (2) Sim. There is ho denying that none of these accused was apprehended while transporting resin without a valid permit. According to the police, resin was found loaded in the truck parked near the depot. It has been held in Prem Kumar Malik v. State of Himachal Pradesh, 2000 (2) Sim. L.C. 520, that Section 42, Indian Forest Act, is not attracted if the forest produce is not shown to have been seized while in transit. A3, A7 and A9, therefore, cannot be held guilty for the offence under Section 41/42, Indian Forest Act. Besides, the identity of A3, A7 and A9 as being the persons trying to transport the resin without a valid permit has not been established. 36. Similarly, since the identity of A3 and A7 being the culprits having not been established, their conviction for the offence under Section 353, Indian Penal Code, cannot be sustained. 37. As a result, while criminal appeal No. 684 of 2000 filed by the State is dismissed, the appeal preferred by A3 and A7 is allowed. Their conviction and sentence as recorded by the learned trial Court are set aside and they are acquitted of the offences for which they have been convicted and sentenced. 38. Needless to say that though A9 has not preferred an appeal against his conviction and sentence, the present judgment shall also ensure for his benefit and he shall be deemed to have been acquitted of the offence for which he stands convicted and sentenced by the learned trial Court. 39. The bail bonds of Al to A8 shall stand cancelled and discharged. A9, if in custody, shall be released forthwith if not required in any other case. The amounts of fine if already deposited by A3, A7 and A9 shall be refunded to them forthwith. Case property shall be dealt with as per directions of the learned trial Court.