JUDGMENT : Tarlok Singh Chauhan, J. The State has filed the instant appeal against the judgment dated 13.9.2007 passed by the learned Sessions Judge, Shimla, H.P. in Cr. Appeal No. 37S/10 of 2005, whereby he reversed the judgment dated 22/25.7.2005 passed by the learned trial court and acquitted Vijay Singh, respondent herein, and one Sher Singh, who has since died, of the offence punishable under Section 42 of the Indian Forest Act (in short, 'the Act'). 2. The prosecution story, in brief, is that SI Parmod Shukla, Police Station, Kotkhai, during the intervening night of 17/18.10.1997, left for patrolling duty towards KiarKhalroo Nallah, Tehsil Theog at about 12.30 A.M. vide Rojnamcha Ext. PW7/A. While the police party reached Dokhari, near Village Pujarli, Police Station Kotkhai at about 1.45 A.M., they found truck bearing No. HP512465 parked near Himachal Pradesh Forest Corporation Depot on road side. On seeing the police party coming in a Jeep, one person jumped from the truck and escaped. However, Vijay Singh being driver and Mohar Singh, being another driver were apprehended on the spot. Two Gorkhas were unloading timber sleepers from the truck. The independent witness, Bala Nand was called to the spot from the nearby house and the timber was checked. 48 sleepers of Deodar recently sawed had been unloaded from the truck. They were having no T.D. Hammer Mark. The accused persons including Sher Singh could not produce any documents or permit etc. in token of legal possession of the timbers. These sleepers were taken into possession along with truck vide memo Ext.PW15/A. Thereafter, the SHO sent Rukka Ext. PW16/A to the Police Station, on the basis of which, case was registered vide formal FIR, Ext.PW16/B. 3. The SHO prepared the site plan, Ext.PW16/C. During investigation of the case, copy of registration certificate of the truck, Ext.PW15/C and copy of driving licence of Mohar Singh were taken in possession vide memo Ext.PW16/D. Ext.PW16/A was the copy of the relevant extract of log book. 4. Subsequently, disclosure statements of accused Vijay Singh, Mohar Singh and Sher Singh, Ext.PW1/B, Ext.PW1/C and Ext. PW3/A respectively were recorded, wherein they pointed out and identified the place from where the timber was loaded in the truck and the site plan, Ext.PW16/F was prepared. 4. Subsequently, disclosure statements of accused Vijay Singh, Mohar Singh and Sher Singh, Ext.PW1/B, Ext.PW1/C and Ext. PW3/A respectively were recorded, wherein they pointed out and identified the place from where the timber was loaded in the truck and the site plan, Ext.PW16/F was prepared. Ext.PW1/A was the memo showing the place from where the timber was loaded and Ext.PW1/E was the memo showing the place of felling of the trees in Jungle Nagteer. Two Deodar trees were sawn from the place shown in the site plan, Ext.PW16/G. 5. Later on, 48 sleepers were given on 'sapurdari' vide memo Ext.PW2/A to Roop Ram Sharma, Block Forest Officer and the value of such timber was Rs. 52,161/as per the valuation Ext. PW12/A. The Block Forest Officer had given the report, Ext.PW1/G that he had marked these two deodar trees, out of which 48 scants were carved out for felling. During investigation, it was found that the timbers so recovered were transported illicitly from one revenue estate to another. 6. Challan was prepared against accused Vijay Singh, Mohar Singh and Sher Singh under Section 42 of the Act read with Section 420 IPC and was presented in the Court. During the trial, the accused Mohar Singh was declared proclaimed offender. 7. Notice of accusation was put to Vijay Singh and Sher Singh under Section 42 of the Act read with Section 420 IPC, to which they pleaded not guilty and claimed trial. 8. In order to prove its case, the prosecution examined as many as 19 witnesses. After closer of the prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded, in which they denied the prosecution case in its entirety. 9. The learned trial court, on the basis of the evidence so adduced before it, vide judgment dated 22/25.7.2005 convicted and sentenced the accused persons to undergo simple imprisonment for one month under Section 42 of the Act and to pay a fine of Rs.500/- each and in default of payment of fine to undergo further simple imprisonment for a period of fifteen days. 10. Feeling aggrieved by the impugned judgment of conviction and sentence, both the accused Vijay Singh and Sher Singh filed separate appeals before the learned Sessions Judge, who allowed both the appeals and acquitted the accused persons of the offences charged against them vide judgment dated 13.9.2007. Hence, the present appeal against the respondent. 10. Feeling aggrieved by the impugned judgment of conviction and sentence, both the accused Vijay Singh and Sher Singh filed separate appeals before the learned Sessions Judge, who allowed both the appeals and acquitted the accused persons of the offences charged against them vide judgment dated 13.9.2007. Hence, the present appeal against the respondent. 11. Learned Additional Advocate General for the State has vehemently argued that the findings recorded by the learned Sessions Judge are totally perverse as he has misinterpreted the judgment rendered by this Court in State of Himachal Pradesh vs. Surinder Lal Sood and ors., (1989) 2 ShimLC 4 , which otherwise forms the sole basis of the order of acquittal of the respondent. On the other hand, learned counsel for the respondent would argue that the judgment rendered by the learned Sessions Judge is based on correct appreciation of the facts and, therefore, warrants for no interference. 12. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 13. Indubitably, the only ground, on which the respondent has been ordered to be acquitted by the learned Sessions Judge, is contained in para 59 of the judgment, which reads thus: "59. The gravamen of charge against the accused persons/appellants is that they have transported the forest produce, which was extracted from the trees, given to Sher Singh and his brother Gulab Singh on grant by the Forest Authorities, without obtaining the requisite pass from the concerned Divisional Forest Officer. It is because of this reason that the present accused persons/appellants are facing the trial under Sections 41 and 42 of the Act. According to such charge, this amounts to violation of Rule 11 of the Himachal Pradesh Forest Produce Transit (Land Routes) Rules, 1978. I have perused such Rule. It is provided therein that no person shall transport or cause to be transported any forest produce except 'Kuth' by land route without obtaining pass in the prescribed form from the concerned Divisional Forest Officer or any other Officer or Authorities. The timber in question was collected from Tehsil Kotkhai and it has been intercepted within the same Tehsil by the police officials. Admittedly, I am informed at the Bar by Shri I. S. Chandel, Advocate, that the Divisional Officer, Theog holds the charge of Kotkhai Tehsil. The timber in question was collected from Tehsil Kotkhai and it has been intercepted within the same Tehsil by the police officials. Admittedly, I am informed at the Bar by Shri I. S. Chandel, Advocate, that the Divisional Officer, Theog holds the charge of Kotkhai Tehsil. As noticed above, the timber in question has been collected and also intercepted by the police within the same Tehsil, meaning thereby that it had not been transported out of jurisdiction of the Divisional Forest Officer, Theog. Therefore, on such factual as well as legal aspect of the case, it could not have been said that charge against accused persons/appellants stands proved and, particularly, so in view of the case law settled by our own Hon'ble High Court on such question in the case of State of Himachal Pradesh vs. Surinder Lal Sood and others, (1989) 2 ShimLC 4 ." 14. To say the least, the aforesaid observations are totally erroneous and based upon complete misreading and misinterpretation of the judgment passed by this Court in Surinder Lal Sood's case (supra). Therein, the Court was dealing with a question as to whether while transporting the timber within the same forest division, a permit under the H.P. Forest Produce Transit (Land Routes) Rules, 1978 was required or not. Such question was answered in negative by holding that there was no such requirement either under the Act or under the Rules ibid. Nowhere the Court was confronted with the situation regarding the timber being transported without requisite hammer mark, rather it was a admitted case that the truck was carrying 68 scants of Deodar and all the scants as recovered were having different hammer marks, but were not having the permit, whereas in the instant case, admittedly, the scants so recovered did not contain any hammer mark, therefore, the learned Sessions Judge could not have ordered the acquittal of the respondent that too on the basis of the judgment rendered by this Court in Surinder Lal Sood's case. 15. Since the recovery of scants without hammer mark is not even disputed by the respondent and further more, there is no contrary finding recorded by the learned Sessions Judge, therefore, there is no question of petitioner being acquitted. 15. Since the recovery of scants without hammer mark is not even disputed by the respondent and further more, there is no contrary finding recorded by the learned Sessions Judge, therefore, there is no question of petitioner being acquitted. However, it still needs to be observed that since the offence was committed more than two decades back in the year 1997, and one of the co accused Sher Singh has since died, therefore, in such circumstances, it would not be fair and just to confirm conviction and sentence as passed by the learned trial court and I feel that the ends of justice would be met in case the respondent is convicted and sentenced to undergo imprisonment till the rising of the court and to pay the fine amount as already ordered by the learned trial court. Ordered accordingly. 16. The respondent is present in person in the Court and is accordingly convicted and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs.500/, if not already deposited, within a period of thirty days from today, failing which the judgment of conviction and sentence as passed by the learned trial court shall automatically come into force. 17. The appeal stands disposed of in the aforesaid terms. 18. A copy of this judgment be supplied to the respondent free of costs.