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Himachal Pradesh High Court · body

2018 DIGILAW 1022 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2018-05-30

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The petitioners were acquitted by the learned trial Magistrate for the offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and Sections 41 and 42 of the Indian Forest Act (for short ‘Act’). On an appeal preferred by the State, the petitioners were though acquitted of offences punishable under Sections 41 and 42 of the Act, however, they came to be convicted under Section 379/34 IPC. 2. The allegations against the petitioners were that on 11.01.2005, the complainant Geeta Ram presented one application before the police regarding theft of 12 sleepers wherein it was stated that on 15.06.2004, he had placed 12 sleepers of ‘Devdar’ in his pasture (ghasni) after cutting three trees measuring 10x10x5 three in number, 10x7x7 three in number, 10x10x5 three in number, 8x10x5 two in number and 10x5x6 one in number. Thereafter, he had inscribed his name G.R. with red colour on the same. He used to check his sleepers from time to time, but on 11.01.2005 at about 10.30 a.m., he noticed that his sleepers were not there. The petitioners had been roaming around the road in a vehicle bearing registration No.HP-13-0911 and, therefore, he had suspicion that they might have stolen his sleepers which were of the value of Rs.13,000/-. 3. The investigation was carried out by the police and thereafter all the petitioners were arrested and their statements under Section 27 of the Indian Evidence Act were recorded, which led to the recovery of 12 sleepers ‘Devdar’, out of which 5 sleepers were recovered from the cowshed and remaining 7 sleepers were recovered from the sawmill of Pawan Kumar. Thereafter, an FIR came to be registered against the petitioners under Section 379/34 IPC and Sections 41 and 42 of the Act. 4. The petitioners were summoned and on their appearance, they were supplied copies of the challan and other documents. 5. The learned trial Court on finding a prima facie case framed charges against the petitioners for the aforesaid offences to which they pleaded not guilty and claimed trial. The prosecution examined 12 witnesses in all and closed its evidence. 6. After closure of the prosecution evidence, petitioners were examined under Section 313 Cr.P.C. wherein they denied the entire prosecution story and stated that they did not want to lead any defence evidence. 7. The prosecution examined 12 witnesses in all and closed its evidence. 6. After closure of the prosecution evidence, petitioners were examined under Section 313 Cr.P.C. wherein they denied the entire prosecution story and stated that they did not want to lead any defence evidence. 7. The learned trial Court after recording the evidence and evaluating the same acquitted the petitioners. However, on an appeal being preferred by the State, the judgment of the learned trial Magistrate acquitting the petitioners of the offences punishable under Sections 41 and 42 of the Act was affirmed, whereas, their acquittal under Section 379/34 IPC was set aside and they were sentenced to undergo simple imprisonment for six months each and to pay a fine of Rs.5,000/- each for the offence punishable under Section 379/34 IPC. In default of payment of fine, the petitioners were further directed to undergo simple imprisonment for one month. 8. Aggrieved by the judgment of conviction and sentence, the petitioners have filed the instant revision on the ground that the findings recorded by the learned Additional Sessions Judge are perverse and, therefore, deserve to be set aside. 9. I have heard the learned counsel for the parties and have gone through the records of the case. 10. It would be noticed that the entire edifice of the prosecution is based upon the testimonies of PW-1 and PW-2. PW-1 is the complainant, whereas, PW-2 is the person before whom disclosure statements are alleged to have been made. 11. As regards the testimony of PW-1, even though he tried to justify his case by stating that he had inscribed the letters G.R. on the sleepers and had recognized the same from this inscription, but it would be noticed that the story put forth by the complainant was eventually not accepted by the learned trial Magistrate because when the case property along with inscriptions was physically produced before the learned Magistrate at the time when the complainant was being cross examined, the learned Magistrate made the following observations :- “(Observation regarding the case property:- I have personally verified the paint marks on the wooden plank and other sawed wood which appears to have been made after sawing the sleeper. The painted mark is on the middle of the sawed wood. The painted mark is on the middle of the sawed wood. It has also overlapped to other side of the wood and contrary to the statement of witness) This witness is deferred as Court time is over.” This is not the solitary interpolation made by the Investigating Officer in this case, but even the story of the disclosure statements does not appear to be true. 12. As observed earlier, PW-2, Durga Singh, is alleged to be a witness to the disclosure statements made separately by each one of the petitioners. In cross examination, this witness has clearly stated that he along with Amar Singh Verma, was drinking tea in the market and then they saw a Tata Mobile bearing registration No.HP-13-911. At that time, Geeta Ram came to this witness and stated that his sleepers that had been stolen, have been recovered and transported in the vehicle to the police station. If that be so, I really wonder as to how PW-2 could have been a witness or how could there have been any recovery effected from the petitioners in a manner as alleged by the prosecution. Notably, in the earlier part of his statement, PW-2 has tried to depose that all the petitioners had stated before the police about the theft of 12 sleepers by stating that they had given 7 sleepers in the sawmill of Pawan Kumar and 5 sleepers had been kept in the cowshed and their statements are Ex.PW2/A to PW2/C and he signed on them. 13. As regards the another witness, Ishwar Dutt, who was signatory to the document Ex.PW1/C and examined as PW-3, had turned hostile. He simply stated that he signed on the aforesaid document on the asking of the police, whereas, the marks on the wood had been inscribed later on. 14. PW-4, Pawan Kumar stated that petitioners came to him in a Tata Mobile bearing registration No. HP-13-0911 and gave 7 sleepers for sawing out of which 20 pieces including frames and chips (Karian) were prepared. Kewal Ram was present at that time. G.R. was written on the sleepers with red colour. Police took into possession all the 20 pieces of wood vide memo Ex.PW1/D which was signed by this witness. The witness recognized the case property Ex.P6 to P25 in the Court. In the cross examination, he stated that the wood was washed before making frames. G.R. was written on the sleepers with red colour. Police took into possession all the 20 pieces of wood vide memo Ex.PW1/D which was signed by this witness. The witness recognized the case property Ex.P6 to P25 in the Court. In the cross examination, he stated that the wood was washed before making frames. He further stated that he made entries in the register when the logs were delivered at his sawmill by the petitioners, but had not handed over the extract of the registered to the police. He denied that no wood was left by the petitioners for sawing. 15. PW-5, is also a witness to memo Ex.PW1/C and recognized the sleepers Ex.P1 to P5 in the Court. In cross-examination, he denied that the police personnel had made certain signs on the recovered wood. 16. PW-6, Prakash Chand stated that the petitioners gave statements before the police regarding theft of 12 sleepers on the basis of which memo Ex.PW1/B was prepared. In cross examination, he stated that complainant Geeta Ram was known to him. He further stated that three trees were cut which were of Class-I category, but he could not tell when these trees were cut. He also stated that the police had recorded the statements of the petitioners before him on one paper and denied that no such statements had been recorded before him. Admittedly, this statement is contrary to the records as their statements under Section 27 of the Indian Evidence Act stand recorded. 17. PW-7, Babu Ram got released the vehicle on supurdari. In his cross examination, he admitted that he had no idea of theft of wood. PW-8, Sewak Ram stated that 12 pieces of wood were prepared after cutting and cleaning for which Geeta Ram paid Rs.850/- as charges. Further, Geeta Ram told about the theft of the sleepers from his ‘ghasni’. In cross examination, he stated that the sleepers did not have the hammer mark of the Forest Department. He could not tell which class of tree was cut. 18. PW-9, Krishan Singh stated that memo Ex.PW9/A was prepared by the police and he signed the same. 19. PW-10, Prakash Chand, Patwari proved on record jamabandi Ex.PW10/A and tatima Ex. In cross examination, he stated that the sleepers did not have the hammer mark of the Forest Department. He could not tell which class of tree was cut. 18. PW-9, Krishan Singh stated that memo Ex.PW9/A was prepared by the police and he signed the same. 19. PW-10, Prakash Chand, Patwari proved on record jamabandi Ex.PW10/A and tatima Ex. PW10/B. He further stated that he had visited the spot on the basis of letter Ex.PW10/C and submitted his report Ex.PW10/D. In cross examination, he admitted that he was not competent to conduct demarcation. 20. PW-11, ASI Prabal Singh proved on record FIR Ex.PW11/A and stated that challan was prepared and presented by SI Avtar Chand. 21. PW-12 ASI Ram Singh conducted the investigation and stated that complainant was associated in the investigation and on his demarcation spot map Ex.PW12/B was prepared on 12.01.2005. The complainant recognized the vehicle bearing registration No.HP-13-0911 which was standing on Junga road Sadhupul in which all the petitioners were sitting. They were arrested and vehicle was taken into possession. Memos were prepared and accordingly all the petitioners gave their statements under Section 27 of the Indian Evidence Act regarding the theft and recovered all the stolen property out of which 5 sleepers were recovered from the cowshed of Sanjeev Kumar and spot map Ex.PW12/C was prepared. On 13.01.2005, 20 pieces of frames were recovered from the sawmill of Pawan Kumar on the basis of which spot map Ex.PW12/D was prepared. He further stated that thereafter demarcation was got conducted and photographs were clicked. In cross examination, this witness stated that demarcation was not conducted by Kanungo and denied that the petitioners had not given any statement before him. He showed his inability to answer the question as to why he had not produced the register when it has specifically come on record that the same was being maintained. He denied that the words G.R. were written afterwards in connivance with the complainant. 22. The testimonies of PW-1 and PW-2 have already been discussed above. In addition thereto, it would be noticed that as per the testimony of PW-4, he was maintaining the register in which the names of the persons keeping the wood were recorded. But the Investigating Agency has failed to take the same into possession constraining this Court to draw an adverse inference against it. 23. In addition thereto, it would be noticed that as per the testimony of PW-4, he was maintaining the register in which the names of the persons keeping the wood were recorded. But the Investigating Agency has failed to take the same into possession constraining this Court to draw an adverse inference against it. 23. As already observed above, the prosecution has failed to prove the words G.R. written by the complainant and rather it has come on record that the said words were inscribed/written later on. As rightly observed by the learned Magistrate, the police had failed to establish the recovery of sleepers beyond reasonable doubt and that nothing has come on record about transporting of the sleepers without transport permit. 24. Apart from the contradictions, embellishments which go to the root of the case, it would be noticed that there is no evidence that the alleged wood could have been procured from the cutting of the trees as the Investigating Officer did not bother to compare the diameter of the trunk with the sleepers so recovered. 25. As observed earlier, there are as many as three disclosure statement purported to be recorded under Section 27 of the Indian Evidence Act. Section 27 provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved. Therefore, there can be no gainsaying that once a fact is discovered from the other source, there can be no fresh discovery even if relevant information is extracted from the accused and the Courts have to be watchful against the ingenuity of the Investigating Officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Evidence Act is not whittled down by the mere manipulation of the records of the case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the petitioners’ guilt. 26. It would, in the circumstances be somewhat unsafe to rely on this information for proving the petitioners’ guilt. 26. That apart, it is not safe to act upon the joint statement by taking resort to Section 27 because two or more accused persons would not utter informatory words in a chorus, as was observed by the Hon’ble Supreme Court in State (NCT of Delhi) versus Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600 , wherein it was held as under :- “It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break-almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr. Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence.” 27. Over a long period of time, Section 27 is found to have been frequently misused by the police and, therefore, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. At the same time, it does not, however, mean that any statement made in terms of the aforesaid Section should always be seen with suspicion and, therefore, cannot be discarded only on the ground that it was made before a police officer during investigation. The Court has to be cautious that no effort is made by the prosecution to make out a statement with simple case of recovery as a case of discovery of fact in order to attract the provisions of the aforesaid Section. 28. Evidently, it is only PW-3 Ishwar Dutt, who is supposed to be the witness of recovery of wood from the cowshed of Sanjeev Kumar, but as observed earlier, he had not supported the case of the prosecution. 29. Apart from above, it has come on record that the house of Sanjeev Kumar from where the recovery is alleged to have been effected was joint with his brother Vinod and no evidence whatsoever has been led by the prosecution to prove that the place from where the recovery of the wood had been effected was in conscious and exclusive possession of Sanjeev Kumar. 30. Notably, even though the learned Additional Sessions Judge has though convicted the petitioners under Sections 379/34 IPC, however, there are virtually no reasons assigned by the said Court for his reversing the well reasoned judgment passed by the learned Magistrate. The learned Additional Sessions Judge after discussing the statements of the prosecution witnesses has convicted the petitioners on the basis of the observations as contained in para-16 of the judgment which reads thus :- “16. The learned Additional Sessions Judge after discussing the statements of the prosecution witnesses has convicted the petitioners on the basis of the observations as contained in para-16 of the judgment which reads thus :- “16. In view of afore discussed evidence, it is clear that the prosecution has succeeded in establishing that three trees of Devdar were felled by Geeta Ram after seeking permission from the Forest Department from his own land which were converted by him into 12 logs which after some days were found missing. When the accused were arrested on suspicion, they made disclosure statements and as per the disclosure statements five sleepers were recovered from the cattle shed of accused Sanjiv and remaining 12 logs are stated to have been given to Pawan Kumar, the saw-mill owner to convert them into small logs and these 20 logs were recovered from the saw-mill which so has been supported by PW4. Thus, in my opinion, the prosecution has succeeded in establishing the case of felling the trees. No doubt, there are some discrepancies in evidence, but these are not material contractions which may go to the root of the case. Inconsistencies are small and cannot affect the merits of the case. It is a notorious fact that in case a person comes to the Court after long time everything cannot be expected from him in verbatim. Thus, while taking into consideration all these facts a case under Section 379/34 IPC has duly been established by the prosecution.” 31. Noticeably, the learned Additional Sessions Judge has not at all cared or bothered to go or to advert to the findings and reasons so assigned by the learned Magistrate and has reversed the judgment after writing a separate judgment. Obviously, the procedure adopted by the learned Additional Sessions Judge while deciding the appeal cannot be countenanced because it was incumbent upon him to have at least referred to the reasoning assigned by the learned Magistrate and thereafter give his own reasoning for disagreeing with the same and he was not expected to write a separate judgment on the basis of evidence, as available on record. 32. Even while writing a judgment, the learned Additional Sessions Judge has not at all adverted to the noting of the learned Magistrate made during the cross examination of PW-1. 32. Even while writing a judgment, the learned Additional Sessions Judge has not at all adverted to the noting of the learned Magistrate made during the cross examination of PW-1. That apart, he has also not cared to consider the cross examination of PW-2 whose testimony has already been discussed above. Moreover, he has not even cared to make note of the discrepancies in the prosecution case that have been noticed by the learned Magistrate and some of which have been noticed by this Court. 33. For the reasons stated above, I find merit in this revision and the same is accordingly allowed. Consequently, the judgment passed by the learned Additional Sessions Judge, convicting the petitioners under Section 379/34 IPC, is set aside and the petitioners are honourably acquitted of the aforesaid offence. Bail bonds, if any, furnished by the petitioners stand discharged.