JUDGMENT Surinder Singh, J (Oral). Both these appeals are arising out of the judgment passed by the learned trial Court in Criminal Case No. 6-II/99 on 30.9.2005. 2. Heard and gone through the record. 3. In short, the prosecution case is that on 23.12.1997, a complaint was lodged by the Range Forest Officer, Dehra in police station that on 22.12.1997, at about 9.00 p.m., truck No. HIE-475 was noticed at forest barrier coming from the side of Pragpur. It was signaled to stop with the light of torch. The driver stopped the truck. He including its occupants sped away under the cover of darkness. The truck aforesaid was loaded with Khair logs and its roots. These were taken into possession. DFO was informed. (ii) On the basis of the said complaint of the Range Officer, FIR was lodged. The police visited the spot and prepared the site plan of the place of incident. The roots of the Khair trees were one quintal. List of the Khair logs and roots alongwith copy of the order of the authorized officer were taken into possession. (iii) During the course of the investigation, one receipt book belonging to ‘Shivalik Truck Union’, Amb, bearing serial numbers 201 to 300 in which receipts upto serial no. 224 stood already issued, was taken into possession vide which the truck was to load sand. (iv) Receipt No. 213, dated 22.12.1997 qua the truck in question had shown that it was in the name of accused-respondent Garibu alias Rajiv Kumar. He was arrested. (v) Pursuant to the disclosure statement made by him in the presence of witnesses Vijay Kumar and Bidhi Chand, he had led the police party to the place where the logs were seized and pointed out the said place in the presence of the aforesaid witnesses. (vi) Thereafter, he led the police party to the place from where the Khair trees were cut. The demarcation was got conducted and it was found that the trees were cut from Khasra No. 721 owned by accused Krishan Kumar.(vii) The police found the involvement of respondents Garibu alias Rajiv Kumar, Krishan Dev, Johndu alias Kuldeep Kumar and Krishan Kumar for the offences punishable under Section 379 of the Indian Penal Code and Sections 41 & 41 of the Indian Forest Act. Accordingly, the challan was presented in the Court against them and they were charge-sheeted. 2. Accordingly, the challan was presented in the Court against them and they were charge-sheeted. 2. At the end of the trial, accused-respondent Garibu @ Rajiv Kumar was convicted and sentenced for the offences punishable under Sections 41 & 42 of the Indian Forest Act only, whereas the other respondents, all hereinafter referred to as “the accused”, were acquitted. 3. While sentencing accused Garibu @ Rajiv Kumar, he was only slapped a fine of ‘ 2,000/- for the offence punishable under Section 42 of the Indian Forest Act and in default of payment of fine, to undergo the simple imprisonment for a period of two months. 4. The State seeks enhancement of sentence in Criminal Appeal No. 191/2006 under Section 377 of the Code of Criminal Procedure qua accused Garibu @ Rajiv Kumar and in Criminal Appeal No. 118/2006, the challenge is laid to the acquittal of other accused persons Krishan Dev, Johndu alias Kuldeep Kumar and Krishan Kumar including Garibu @ Rajiv Kumar for the offence of theft (under Section 379 of the Indian Penal Code). 5. PW-6 Raj Paul Singh stated that on 22.12.1997, receipt Ext. PW-6/A was issued by the truck union in the evening qua truck No. HIE-475, the driver whereof was accused Garibu alias Rajiv Kumar. He also stated that this receipt was taken into possession during the investigation by the police in the presence of the witnesses. PW-9 Ram Murti is a witness to its recovery memo Ext. PW-6/C. 6. PW-10 Virender stated that police had taken into possession the driving licence of accused Garibu alias Rajiv Kumar vide memo Ext. PW-10/A. 7. From the statements of the aforesaid witnesses it is clear that accused Garibu alias Rajiv Kumar was the driver of truck No. HIE-475, but nobody could identify him while driving the truck at the relevant time when it was intercepted by the forest officers loaded with forest produce. The statements of these witnesses further reveal that receipt Ext. PW­6/A was issued only to load sand. It was carried at 4.00 p.m. on 22.12.1997, whereas the truck in question was intercepted at 9.00 p.m at the Naka. None of the persons could be identified while escaping. 8. The statements of these witnesses further reveal that receipt Ext. PW­6/A was issued only to load sand. It was carried at 4.00 p.m. on 22.12.1997, whereas the truck in question was intercepted at 9.00 p.m at the Naka. None of the persons could be identified while escaping. 8. The evidence on record does not show that at the time of interception, it was accused Garibu alias Rajiv Kumar, who was driving the truck or caused the logs of Khair trees to be transported in the said truck. Qua the other accused persons, there is not even an iota of evidence on record to link them with the alleged offences. 9. The disclosure statement, which is alleged to have been taken, is of no consequence for the reason that the places which are alleged to have been pointed out by accused Garibu alias Rajiv Kumar pursuant to his statement recorded under Section 27 of the Indian Evidence Act, were already known to the police. Further the place from where the alleged Khair trees were cut, was owned by one of the accused persons alongwith other co-shares, who were not arrayed accused. 10. Thus, in nutshell, for the aforesaid reasons, there is absolutely no evidence against accused persons Krishan Dev, Johndu alias Kuldeep Kumar and Krishan Kumar. The appeal against the acquittal of these accused persons has no merit, hence dismissed. 11.In so far as the conviction against accused Garibu @ Rajiv Kumar is concerned, even there is no legal evidence against him for his conviction as recorded by the learned trial Court. 12. In a case seeking enhancement, an accused has a right to plead for his acquittal as enunciated in Section 377 (3) of the Code of Criminal Procedure. On sifting the evidence, I find that on the strength of the aforesaid evidence, accused Garibu @ Rajiv Kumar could not have been convicted even under Sections 41 and 42 of the Indian Forest Act. Accordingly, his conviction for the said offences is set aside. Consequently, the fine amount, if already deposited, be refunded to him. 13.Accordingly, both the appeals on seeking enhancement of sentence and another against acquittal are dismissed. Consequently, accused Garibu @ Rajiv Kumar consequent upon the above findings is also acquitted. Fine amount, if deposited, be refunded to him. 14.Send down the records.