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2011 DIGILAW 241 (ORI)

State of Orissa v. Rasananda Pradhan

2011-04-20

B.K.NAYAK

body2011
JUDGMENT B.K. NAYAK, J. — This Government appeal is against the order of acquittal dated 10.07.1995 passed by the learned Civil Judge (Senior Division)-cum-J.M.F.C., Bonai in 2(b) C.C. Case No.46 of 1994 (Trial No.107 of 1995). The respondent was prosecuted for violation of Rule-4 which is punishable under Rule 21 of the O.T.T. Rules for having allegedly transported and kept timbers of different varieties, such as Sal planks, Sal scantlings, bija planks, kuruma round etc. in his house premises, which were searched and the timbers were seized on 04.11.1993 by the forest officials. The probationary Forest Range Officer, who detected and effected search and seizure along with other staff submitted Prosecution Report after completion of investigation. 2.The appellant denied the indictment and further took a plea that there was a departmental permission in support of possession of the timers and that some old used wood were also seized by the forest officials. 3.The prosecution examined six witnesses and proved the seizure list and zimanama whereas the defence has examined two witnesses and proved permits vide Exts. A and B. On consideration of the evidence, the trial Curt came to the conclusion that the prosecution has failed to prove the guilt of the respondent and accordingly recorded the order of acquittal. 4.In this appeal it is contended by Mr. Rath, the learned Additional Standing Counsel that though admittedly Exts. A and B (permits) which were issued in the name of the wife of the respondent related to only Sal and Bija timbers, there is no permit with respect to Kuruma and Bandhana timbers measuring 0.74 cubic meters which were also seized. Therefore, the appellant must be held guilty for violation of Rule-4 of Orissa Timbers and other Forest Produce Transit Rules (in short “the OTT Rules 1980”) which is punishable under Rule 21. 5.Miss. Sumitra Biswal, learned counsel appearing on behalf of Mr. S.D. Das, Senior Advocate for the respondent, on the other hand, contends that in view of the evidence of P.W.4, an independent witness, to the effect that the seized articles are all old used materials, which was taken note of by the trial Court, the order of acquittal cannot be faulted. Sumitra Biswal, learned counsel appearing on behalf of Mr. S.D. Das, Senior Advocate for the respondent, on the other hand, contends that in view of the evidence of P.W.4, an independent witness, to the effect that the seized articles are all old used materials, which was taken note of by the trial Court, the order of acquittal cannot be faulted. It is her further submission that seizure of Kuruma and Bandhana timers, in respect of which there was no T.T. permit, having not been put to the respondent during recording of his statement under Section 313 of the Code of Criminal Procedure, the seizure of those two items of timbers as an incriminating evidence cannot be utilized against the respondent. 6.Law is well settled that when two views are possible on the basis of evidence, the view taken by the Trial Court shall not be interfered with unless it is wholly perverse or is not based on evidence. On going through the trial Court judgment, it is found that the trial Court on consideration of the evidence on record has come to hold that the seized sal and bija timbers were supported by T.T. Permit under Exts. A and B. The genuineness of the T.T. Permit has not been challenged. With regard to small quantity of Kuruma and Bandana timbers, the Trial Court has taken into consideration the evidence of P.W.4 and came to conclusion that old and used timbers were seized by the forest officials in a high handed manner and that the prosecution has failed to prove the charge against the respondent. On going through the evidence I find that the trial Court has taken a reasonable view. That apart, it is also found that during examination under Section 313 of the Code of Criminal Procedure the respondent was never asked about the seizure of Kuruma and Bandhana timber from his premises. The question that was put to him with regard to the seizure of timbers was specifically limited to Sal scantling and bija scantling and Bija timbers as per the seizure list. It is trite that any incriminating evidence appearing against the accused if not put to him during his examination under Section 313 of the Code of Criminal Procedure cannot be utilized against him. It is trite that any incriminating evidence appearing against the accused if not put to him during his examination under Section 313 of the Code of Criminal Procedure cannot be utilized against him. Since no question has been put to the respondent that Kuruma and Bandhana timbers were also seized, the seizure of the same cannot be utilized against him as incriminating evidence. In the light of the discussion made above, I find no merit in the Government Appeal, which is accordingly dismissed. Appeal dismissed.