Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 13 (HP)

State of H. P. v. Pawan Kumar

2017-01-04

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by State of Himachal Pradesh against the judgment rendered on 14.07.2008 by the learned Sessions Judge, Una in Cr. Appeal No. 13 of 2006, whereby, he set aside the judgment of conviction and sentence recorded by the learned trial Court against the accused/respondents herein. 2. The facts relevant to decide the instant case are that on 3.9.2001 around 5.30 a.m., ASI Mhoinder Singh along with Agya Ram No.72, C. Dilwari Lal No. 112 AND HHC Harmesh Kumar No. 303 was on patrolling near Sikro-Da-Paro in a private vehicle Tata Sumoi bearing registration NO. HP-19-308 which was being driven by one Sanjiv Kumar. In the meantime one Jawahar Lal reached there on a scooter. Soon thereafter, a truck bearing No. HP-19-0535 came from Kaloha side. It was stopped by the police. The driver disclosed his name as Pawan Kumar. Three other persons namely Baldev Chand, Shiv Lal and Sher Mohammad were also sitting in the said truck. On checking 22 logs of khair wood of different size were found in the truck. One big saw and a small saw having wooden handle were also found in the truck. The police demanded permit to transport the wood by night time or permission which the accused could not produce in order to justify the transportation of khair wood. The police suspected that accused have cut khair trees stealthly from some forest. Accordingly, a rukka was sent to the police station concerned, on the basis of which FIR was lodged against the accused in the police station concerned. Thereafter, the Investigating Officer concerned completed the codel formalities. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused stood charged by the learned trial Court for theirs committing offences punishable under Sections 379 of the IPC and Section 41 and 42 of the Indian Forest Act. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication in the case. 5. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure were recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction upon the accused/respondents herein for theirs committing an offence punishable under Section 41 and 42 of the Indian Forest Act. However, it acquitted the accused/respondents herein qua an offence punishable under Section 379 of the IPC. In an appeal preferred therefrom by the accused/respondents herein before the learned Sessions Judge, Una, the latter reversed the apposite findings of conviction and sentence recorded by the learned trial Court in its judgment also he acquitted the accused of the offences. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded in favour of the accused/respondents by the learned Sessions Judge, Una. The learned Deputy Advocate General for the State has concertedly and vigorously contended qua the findings of acquittal recorded by the learned Sessions Judge, Una, standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the 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 Senior Counsel appearing for the accused/respondents herein has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned Sessions Judge standing based on a mature and balanced appreciation by him of the evidence on record and theirs not necessitating any 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 seizure memo Ex.PW6/A, 22 logs of kher wood carried in a truck bearing registration No. HP-19-0535 stood seized therefrom by the Investigating Officer concerned. At the time whereat siezure of 22 logs of kher wood carried in a truck bearing No. HP-19-535 occurred, the said truck stood occupied by all the accused. 9. Under seizure memo Ex.PW6/A, 22 logs of kher wood carried in a truck bearing registration No. HP-19-0535 stood seized therefrom by the Investigating Officer concerned. At the time whereat siezure of 22 logs of kher wood carried in a truck bearing No. HP-19-535 occurred, the said truck stood occupied by all the accused. Amongst two marginal witnesses to seizure memo Ex.PW6/A, one PW-2 Jawahar Lal reneged from his previous statement recorded in writing whereas the other marginal witness to seizure memo Ex.PW6/A supported the prosecution case. The learned Sessions Judge imputed utmost significance to the factum qua from amongst two marginal witnesses to seizure memo Ex.PW6/A, one turning hostile, whereupon it concomitantly concluded qua the vigour of Ex.PW6/A suffering effacement. However, imputation of worth whileness by the learned Sessions Jude to the factum qua amongst two marginal witnesses to seizure memo Ex.PW6/A, one turning hostile, is not warranted given PW-2 in his cross-examination to which he stood subjected to by the learned APP concerned on the apposite permission standing granted to him by the learned trial Magistrate, acquiescing to the suggestion put thereat to him qua Ex.PW6/A holding his signatures. Also PW-2 during the course of his standing subjected to cross-examination by the learned APP did not while his thereat acquiescing qua the factum of his signatures existing on Ex.PW6/A make any echoings qua his signatures standing obtained on the memo concerned on undue pressure standing exerted upon him by the Investigating Officer concerned. Consequently, hence with PW-2 volitionally subscribing his signatures on Ex.PW6/A thereupon with the mandate of Sections 91 and 92 of the Indian Evidence Act barring him to orally digress from the recorded recitals occurring on Ex.PW6/A, thereupon the effect, if any, of his orally digressing from the recorded recitals manifested in Ex.PW6/A did not hold any capitalization to either the defence or to the learned Sessions Judge to therefrom conclude qua the prosecution thereupon not succeeding in establishing qua effectuation of recovery thereunder of kher wood from the offending truck, conspicuously also when the other witness thereto PW-6, had lent efficacious vigour to the pronouncements made in Ex.PW6/A. 10. The learned Sessions Judge had also imputed significance to the factum qua the demarcation of the land wherefrom the fellings occurred of kher wood logs borne on the truck occupied by the accused at the relevant time not convincingly establishing the trite factum of trees standing felled therefrom, whereupon it proceeded to record an order of acquittal upon the accused. However, even if the prosecution was unable to establish the factum of the accused/respondents not felling kher trees from the land owned by its lawful owner would not per se render any lawful facilitation to the accused to thereupon proceed to carry kher wood logs in the truck whereupon there were occupants at the relevant time, conspicuously, when they evidently did not at the relevant time hold the relevant permit authorizing them to transport them in the relevant vehicle. 11. The learned Sessions Judge concerned had also on anvill of the prosecution failing to produce the log book of the truck concerned hence proceeded to pronounce an order of acquittal upon the respondents/accused. The aforesaid reason is per se legally frail given efficacious proof emanating qua the relevant seizure of 22 logs of kher wood standing effectuated under memo Ex.PW6/A, hence, there was no necessity beyond proof qua the aforesaid factum for the prosecution to through the log book of the relevant vehicle also establish the further factum of the vehicle at the relevant time plying at the relevant portion of the road whereat the seizure occurred. 12. Be that as it may, the learned Sessions judge, while reversing the conviction and consequent sentences imposed upon the accused by the learned trial Court had also dwelt upon absence of production of case property before the learned trial Court. However, only a representative sample of the seized wood was produced before the learned trial Court. The production there before of the representative sample of the seized wood was sufficient, conspicuously, with the defence failing to espouse in the proceedings drawn under Section 313 Cr.P.C. qua the creditworthiness of Ex.PW6/A standing belittled also when the defence counsel had subjected the prosecution witnesses to a rigorous cross-examination, in endeavour whereof he failed to elicit from them any echoings qua the logs of kher wood carried in the truck standing introduced therein or their occurrence therein being a sequel to a machination deployed by the Investigating Officer. Contrarily, when the prosecution has for reasons afore stated proven Ex.PW6/A, it was inapt for the learned Sessions Judge to for non production of the entire case property before the learned trial Court, belittle the efficacy of the proven seizure memo comprised in Ex.PW6/A. 13. For the reasons which have been recorded hereinabove, this Court holds that the learned Sessions Judge has not appraised the entire evidence on record in a wholesome and harmonious manner apart there from the analysis of the material on record by the learned Sessions Judge concerned suffers from perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 14. Consequently, the instant appeal is allowed. In sequel, the judgment of acquittal recorded by the learned Sessions Judge, Una in Cr. Appeal No. 13 of 2006 is quashed and set aside and the judgment of conviction recorded by the learned trial Court in Case No.22-1 of 2002 is affirmed and maintained. 15. However, given the accused suffering the agony of a protracted trial whereupon it is befitting to reduce the sentences imposed upon them by learned trial Court. Consequently, the convict/respondents herein are sentenced to undergo rigorous imprisonment for a period of three months each for theirs committing an offence punishable under Sections 41 and 42 of the Indian Forest Act and to also pay a fine amount of Rs.500/- each. In default of payment of fine amount they shall further undergo simple imprisonment for a period of one month each. The period of detention, if any, undergone by the convicts/respondents herein during the investigation, inquiry or trial of the case and before the date of conviction, is ordered to be set off. The learned trial Court is directed to henceforth put into execution the sentences as imposed upon the convicts/respondent herein by this Court. Records be sent back forthwith.