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2016 DIGILAW 2369 (HP)

State of H. P. v. Parveen Kumar

2016-11-09

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, Judge (Oral). The instant appeal stands directed by the State of H.P. against the judgment of the learned Chief Judicial Magistrate, Una, District Una, H.P., rendered on 31.05.2008 in Case No. 156-III-2002, whereby, he acquitted the accused/respondents herein for theirs allegedly committing offences punishable under Section 379 of the IPC and Sections 41/42 of the Indian Forest Act. 2. The facts relevant to decide the instant case are that on 29.4.2002 C. Yash Pal No. 364 was present at village Ghaluwal whereat he received a secret information that accused Parveen and Vijay Kumar are dealing in sale of stolen timber in Punjab and that on that day also they have gone to Dulehar Brahmna forest in the tractor to fetch timber and that if a naka is laid on the border of Punjab and Himachal Pradesh they can be apprehended red handed. This information was passed on by C. Yash Pal to ASI Baldev Ram,I/C P.P. Haroli who met him at Pubowal who recorded his statement under Section 154 Cr.P.C. on the basis of which FIR No. 228/2002 under Sections 379 IPC and 41 and 42 of Indian Forest Act was registered in P.S Una. Thereafter, SI Baldev Ram laid a naka on the border of Himachal and Punjab at Brahmnawala Forest and intercepted a Sonalika Tractor Trolley which was not bearing any registration number. On checking the accused persons were found sitting in the said tractor and fuel wood weighing about 20 quintals of different species was found loaded therein. On demand by SI Baldev Ram the accused persons could not produce any permit for transporting the fuel wood loaded in the tractor. Upon this SI Baldev Ram seized the tractor alongwith the fuel wood loaded therein in the presence of Sh. Krishan Gopal, Prem and H.C Jagtar Singh. During further investigation conducted by SI Baldev Ram it was found that the accused persons had stolen the fuel wood by cutting about 40 trees of different broad leave species from land bearing Khasra No. 326 situated at Mohal Bhariyara, Mauza Dulehar, Tehsil Haroli and converted the same into fuel wood and that they were transporting the same to Punjab without possessing any valid permit. Therefore, after completion of investigation the SHO P.S Una found the accused persons guilty under Section 379 IPC and Section 41/42 of Indian Forest Act, 1927. 3. Therefore, after completion of investigation the SHO P.S Una found the accused persons guilty under Section 379 IPC and Section 41/42 of Indian Forest Act, 1927. 3. On conclusion of the investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the competent Court. 4. The accused were charged by the learned trial Court for theirs committing offences punishable under Section 379 of the IPC and under Sections 41 and 42 of the Indian Forest Act, 1927. In proof of the prosecution case, the prosecution examined 13 witnesses. On conclusion of recording of prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the trial Court, in which they claimed innocence and pleaded false implication. However, they did not lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded by the learned trial Court. The learned Deputy Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross misappreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. On the other hand, the learned defence counsel has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Under recovery memo Ex.PW11/A fuel wood holding a weight of 20 quintals stood recovered from the relevant tractor which at the relevant time stood occupied by the accused/respondents. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Under recovery memo Ex.PW11/A fuel wood holding a weight of 20 quintals stood recovered from the relevant tractor which at the relevant time stood occupied by the accused/respondents. The accused/respondents stood detected by the Investigating Officer concerned to not hold a valid permit under the Himachal Pradesh Forest Land Transit Rules for transporting it in the relevant vehicle also with the owner of the land wherefrom purportedly it stood stolen in his previous statement recorded before the Investigating Officer concerned making a disclosure therein qua trees standing felled from his land constrained the Investigating Officer to in his report prepared under Section 173 of the Cr.P.C., report whereof stood furnished before the learned trial Court, conclude qua offences constituted under Section 379 of the IPC and under Sections 41 and 42 of the Indian Forest Act standing committed by the accused/respondents. In sequel thereto the accused/respondents faced trial. 10. On conclusion of the trial qua the offences aforesaid, the learned Chief Judicial Magistrate on holding an incisive perusal of the evidence on record concluded qua the charge to which the accused/respondents stood subjected to not standing proven by adduction of emphatic evidence. 11. The reasoning as stands assigned by the learned trial Court for pronouncing an order of acquittal qua the accused/respondents stands founded upon the factum of with PW-11 and PW-13 contradictorily deposing qua the place whereat the relevant seizure occurred, significantly, with PW-11 deposing qua the relevant seizure occurring about 10-12 kilometers away from the territorial boundaries of the State of Punjab whereas PW-13 deposing of the relevant seizure occurring at a place wherefrom the territorial boundary of the State of Punjab stands located at a distance of ½ kilometers, it therefrom recorded a conclusion, conspicuously, when the relevant demarcation for ascertaining qua whether the naka whereat the relevant seizure occurred falling within the territorial jurisdiction of the State of Himachal Pradesh or within the territorial jurisdiction of the State of Punjab, qua hence the relevant seizure not occurring within the State of Himachal Pradesh rather it occurring within the territorial domain of the State of Punjab. However, the aforesaid reasoning as stands propounded by the learned Chief Judicial Magistrate to record an order of acquittal qua the accused/respondents herein may not hold any tenacity unless evidence stood adduced by the prosecution marking the factum of the tractor whereon fuel wood stood carried emanating from the territorial domain of the State of Himachal Pradesh. However, for the reasons ascribed hereinafter, the prosecution has miserably failed to adduce the aforesaid relevant best evidence whereupon this Court is interdicted to conclude of the tractor whereon the relevant illicit timber stood transported originating from within the territorial domain of the State of Himachal Pradesh. (a) Recovery memo Ex.PW11/A whereunder the accused/respondents recorded their statement whereby they identified the place held in the ownership of PW-9, whereat they axed trees for converting therefrom fuel wood allegedly carried in the relevant vehicle occupied at the relevant time by them not standing preceded by any disclosure statement. Consequently, with Ex.PW11/A remaining unpreceded by any disclosure statement constrains a conclusion of the recitals occurring therein standing prodded by duress besides compulsion exerted upon the accused by the Investigating Officer concerned during the period whereat he subjected them to custodial interrogation. Also it hence appears qua the Investigating Officer concerned inventing besides preceding the making of Ex.PW11/A his suo motto discovering the relevant place whereat the relevant purported fellings occurred whereafter he obviously proceeded to record an engineered recovery memo borne on Ex.PW11/A, memo whereof obviously holds no probative sinew. The effect of the aforesaid inference is hence the imperative ingredient for Ex.PW11/A to hold efficacy embodied in the factum of the relevant identified place reflected therein standing held within the exclusive knowledge of the accused/respondents remaining unsatiated. (b) PW-9 the owner of the land whereupon the relevant fellings occurred omitting to identify the accused to be the persons who had proceeded to fell trees growing upon his land. (c) The Investigating Officer concerned not placing on record the apposite scientific evidence obtained from the Forest Institute, Dehradun, comprised in a report prepared by its relevant officer in sequel to his visiting the relevant khasra number whereat the relevant felling of trees occurred, wherewithin unfoldments occur qua the fuel wood allegedly carried in the vehicle whereon the accused/respondents were aboard at the relevant time, standing felled therefrom. Omission of adduction by the prosecution of the aforesaid best evidence cannot constrain a conclusion qua the fuel wood as stood carried in the relevant vehicle wherefrom its seizure occurred standing axed from trees growing upon khasra No.326 whereupon it is but natural to conclude of the fuel wood borne on the relevant vehicle not originating from khasra No.326 rather its occurrence thereon originating from a place other than khasra No.326. Consequently, when khasra No.326 stands concluded to be located within the territorial domain of the State of Himachal Pradesh wherefrom the relevant fellings did not occur, the imperative conclusion therefrom is of the fuel wood which stood carried in the relevant vehicle originating from outside the territorial domain of the State of Himachal Pradesh, whereupon, this Court is prodded to record a conclusion qua their being no necessity for the accused to hold the relevant permit for carrying the fuel wood in the relevant vehicle. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 13. Consequently, there is no merit in the instant appeal which is accordingly dismissed and the judgment of acquittal recorded by the learned trial Court in favour of the accused/respondents herein is affirmed and maintained. Records be sent back forthwith.