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2014 DIGILAW 316 (HP)

State of Himachal Pradesh v. Som Nath

2014-03-31

SANJAY KAROL

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JUDGMENT Sanjay Karol, J. Assailing the judgment dated 18.1.2006, passed by Judicial Magistrate, 1st Class, Court No. II, Una, H.P., in Criminal Case No. 22-I-2000, titled as State of H.P. vs. Som Nath and another, whereby respondents-accused stand acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. As per prosecution, on 21.3.2000, Constable Nanak Chand (PW-1) received secret information that accused Som Nath was trying to smuggle wood into the neighbouring state of Punjab, to which effect, he got his statement (Ext. PW-1/A) recorded with ASI Akshay Kumar (PW-4). Ruka was prepared and sent to the Police Station through Constable Mukesh Kumar. A raiding party was formed and naaka laid at Dulehar Khad bordering Punjab. Same day, at about 6.00 a.m., one truck bearing No. HP 20 9141 driven by accused Nazir Ahmad loaded with “talli wood” was stopped. Vehicle was searched. Accused Som Nath was sitting in the vehicle. Passengers were asked to produce the permit which they failed to do so. The vehicle and the wood was seized vide memo (Ext. PW-1/C). F.I.R. No. 179 of 2000, dated 21.3.2000 (Ext. PW-4/G) was registered at Police Station Una, Distt. Una, H.P. against the accused, under the provisions of Sections 41 & 42 of Indian Forest Act and 11 – 20 of H.P. Forest Produce Transit (Land Routes) Rules, 1978. With the completion of necessary formalities, challan was presented in the Court for trial. 3. Both the accused were charged for having committed offences punishable under the provisions of Sections 41-42 of the Indian Forest Act and under Sections 4-16 of Land Preservation Act. Additionally, accused Nazir Ahmad was charged for having committed an offence punishable under the provisions of Section 181 of the Motor Vehicle Act, 1988. The accused did not plead guilty and claimed trial. 4. In order to prove its case, in all, prosecution examined four witnesses and statements of the accused under Section 313 Cr. P.C. were also recorded, in which they pleaded false implication. No defence evidence was led by the accused. 5. The Court below acquitted the accused for the reason that prosecution could not prove its case beyond reasonable doubt. Hence the present appeal. 6. P.C. were also recorded, in which they pleaded false implication. No defence evidence was led by the accused. 5. The Court below acquitted the accused for the reason that prosecution could not prove its case beyond reasonable doubt. Hence the present appeal. 6. Having heard learned counsel for the parties and perused the record, I am of the considered view that in the instant case no ground for interference is made out. 7. The first question which needs to be examined is as to why no independent witness was associated by the raiding party while conducting raid. After all, there was prior intimation, which fact was also reduced into writing by ASI Akshay Kumar (PW-4). Non examination of independent witnesses acquires significance in view of the fact that testimonies of official witnesses namely Constable Nanak Chand (PW-1) and ASI Akshay Kumar (PW-4) do not inspire confidence at all. 8. Prosecution has tried to establish that wood was cut by the accused from the trees on his land. It be only observed that wood (24 logs in number) is fuel wood. 9. It has come on record, through testimony of Kanungo Sh. Piare Lal (PW-2) and Patwari Sh. Jagdish Ram (PW-3) that trees which were allegedly felled were on the land which was jointly owned by accused Som Nath. None has come forward to state that it was Som Nath who had actually felled the trees. Also none has come forward to depose that trees were on that portion of the land which was in his exclusive possession. Thus who felled the trees, has not come on record. Also there is no legal evidence to establish that the wood recovered, matched with the stumps of the trees on the land qua which demarcation was carried by PW-2 and PW-3. Co-owners have not been examined either. 10. Further there are major contradictions in the statements of police officials. Constable Nanak Chand (PW1) states that search and seizure operations were carried out at about 5.50 a.m., in the torch light which fact stands materially contradicted by PW-4 according to whom the search took place at 6.45 a.m. when it was not dark. There are further contradictions. According to PW-1, raiding party was on the spot for about one hour whereas according to PW-4, the raiding party was there for more than two and a half hours. There are further contradictions. According to PW-1, raiding party was on the spot for about one hour whereas according to PW-4, the raiding party was there for more than two and a half hours. As to whether party was on the spot and/or raid took place at all, cannot be said with certainty. 11. According to the prosecution, total weight of fuel wood was 60 quintals. But then the Investigating Officer (PW-4) has admitted that seized wood was never weighed either at the time of recovery or thereafter. 12. The very fact as to whether recovery was effected from the accused, as the prosecution wants the Court to believe, cannot be said to have been proved on record beyond reasonable doubt. Also there is no evidence on record to suggest that accused was smuggling fuel wood to the neighbouring State of Punjab. Judicial notice can be taken of the fact that border is at quite a distance from the place where alleged recovery was effected by the police. The vehicle was not owned or driven by accused Som Nath. 13. Thus in view of the material contradictions in the testimony of witnesses and the lacunae in the present case, it cannot be said that there is any illegality in the findings returned by the trial Court. 14. Having perused the testimony of the prosecution witnesses on record it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt, by leading clear, cogent, convincing and reliable material on record. It cannot be said that the findings returned by the court below are not borne out from record, perverse, illegal, erroneous or arisen out of incomplete appreciation of the prosecution evidence. 15. The accused have had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, (2010) 1 SCC 94 , since it cannot be said that the trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds furnished by the accused are discharged. For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds furnished by the accused are discharged. Records of the Court below be immediately sent back.