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Uttarakhand High Court · body

2010 DIGILAW 701 (UTT)

MUNNA v. STATE OF UTTARANCHAL

2010-09-20

DHARAM VEER

body2010
JUDGMENT These criminal revisions have arisen out of a common judgment and order and the question to be decided being also the same, as such, both are being disposed of by this common judgment and order. 2. These criminal revisions, preferred under Sections 397/401 of the Code of Criminal Procedure, 1973 [hereinafter to be referred as Cr.P.C.], are directed against the judgment and order dated 12.7.2001 passed by the First Additional Civil Judge (J.D.)/J.M. Haridwar in Criminal Case No. 93 of 2001, State Vs. Jaffar & others, thereby convicting and sentencing the accused/revisionists u/s 379 IPC for one year’s R.I. and further convicting and sentencing each of them u/s 26 of Indian Forest Act, 1927 [hereinafter to be referred as the Act] for one month’s simple imprisonment. 3. I have heard learned counsel for the parties and perused the entire material available on record. 4. In nutshell, the facts of the case are that on 20.8.96 at about 4 AM, PW1 Van Daroga Dinesh Chand along with PW2 Brahm Singh had reached at Nalowala where on being heard the noise of cutting and loading of trees, they reached there and saw that the revisionists were cutting the trees and after seeing them, the revisionists/accused ran away from the place of occurrence in a car and a Truck brought by them and the woods were left on the spot. After completing the formalities, recovery memo Ex.Ka-1 was prepared on the spot and thereafter the FIR was lodged in the police station by PW1 Dinesh Chand on 20.8.1996 at 10 PM at PS Shyampur, on the basis of which CHIK FIR Ex.Ka-3 was prepared by C/C Ganga Dass and he also made entry in the GD in the same process, i.e. Ex.Ka-4. Investigation was entrusted to PW8 SI B.N. Joshi, who prepared the site plan Ex.Ka-6 of the place of occurrence and after completing the necessary investigation, filed the charge sheet Ex.Ka-5. 5. On 9.3.1998 charge was framed against the revisionists and co-accused Shakil (who died during trial) u/s 379 IPC and 26 of the Act, which was read over and explained to the accused to which they pleaded not guilty and claimed to be tried. 6. 5. On 9.3.1998 charge was framed against the revisionists and co-accused Shakil (who died during trial) u/s 379 IPC and 26 of the Act, which was read over and explained to the accused to which they pleaded not guilty and claimed to be tried. 6. To prove its case the prosecution has examined PW1 Dinesh Chand, complainant, PW2 Brahm Singh, eyewitness, PW3 Bhuwan Chand, PW4 Darshan Singh Negi, PW5 Shiv Singh Rana, PW6 Girish Chand (PW3, 4, 5 and 6 were declared hostile) PW7 Constable Ganga Dass, who prepared CHIK FIR and made entry in the GD and PW8 SI B.N. Joshi, IO of the case. 7. Thereafter the statement of the accused/revisionists was recorded u/s 313 Cr.P.C., who have denied the allegations made against them. No oral or documentary evidence was put in defence. 8. After hearing learned counsel for the parties and appreciating the material on record, learned I Addl. Civil Judge (J.D.)/J.M. Haridwar vide judgment and order dated 12.7.2001 convicted and sentenced the accused/revisionists as above discussed. Against the said judgment and order, the revisionists preferred appeal which was dismissed by the Sessions Judge, Haridwar vide judgment and order dated 11.7.2002. Hence this revision before this Court has been filed. 9. Sri MS Pal, senior advocate for the revisionists/accused argued that the prosecution has not proved its case against the revisionists beyond reasonable doubt. I find force in this argument for the following reasons : A. That as per the prosecution evidence, PW1 Dinesh Chand has stated that the Fard of recovery Ex.Ka-1 was prepared on the spot but in his cross-examination, he states that the recovery memo Ex.Ka-1 was prepared by the Head Constable in the police station and he also stated that there was dark on the place of occurrence and visibility was very poor, which proves that there was no source of light on the basis of which he could prepare the recovery memo. B. That it is an admitted case that the recovery was made at about 4 AM and there was no source of light on the place of occurrence, hence it was difficult to identify the accused in the dark night and even no identification parade was held in the jail to identify the accused. B. That it is an admitted case that the recovery was made at about 4 AM and there was no source of light on the place of occurrence, hence it was difficult to identify the accused in the dark night and even no identification parade was held in the jail to identify the accused. It is also pertinent to mention here that even none of the accused was arrested on the spot nor any Car or Truck, as alleged, was recovered on the spot. These facts further create a reasonable doubt in the prosecution story. C. That even the so called Torch was not produced in the trial court by the prosecution which further creates a reasonable doubt in the prosecution version. D. That the source of light was shown as Torch and recovery of which was also made after about 4 months which also proves that at the time of the recovery, the witnesses were having no torch because along with the recovery memo of the recovered goods, the recovery of Torch was not shown. E. That PW3 Bhuwan Chand, PW4 Darshan Singh, PW5 Shiv Singh and PW6 Girish Chand, who were the forest officials, have not supported the prosecution case and were declared hostile, which further weakens the prosecution story. F. That even the statement of PW1 and PW2, who were shown to be the eyewitnesses, are contradictory to each other inasmuch as PW1 Dinesh Chand states that the recovery memo was prepared by the Head Constable in the police station while PW2 Brahm Singh states that the recovery memo was prepared on the spot, which also creates a reasonable doubt about the presence of these witnesses on the place of occurrence. G. That the incident was happened at about 4 AM in the morning and the FIR was lodged at about 10 PM i.e. about 18 hours delay but no reasonable explanation about the delay was offered which further creates a reasonable doubt in the prosecution story. 10. Thus, in view of the foregoing discussion, the prosecution has miserably failed to prove its case against the accused/revisionists beyond reasonable doubt and they are liable to be extended the benefit of doubt. 11. For the reasons as recorded above, both the criminal revisions are allowed. The judgments and order dated 12.7.2001 passed by the First Addl. 10. Thus, in view of the foregoing discussion, the prosecution has miserably failed to prove its case against the accused/revisionists beyond reasonable doubt and they are liable to be extended the benefit of doubt. 11. For the reasons as recorded above, both the criminal revisions are allowed. The judgments and order dated 12.7.2001 passed by the First Addl. Civil Judge (J.D.)/J.M. Haridwar, convicting and sentencing the accused/revisionists as discussed above, which was subsequently affirmed by the Sessions Judge, Haridwar vide judgment and order dated 11.7.2002, are hereby quashed.