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2019 DIGILAW 714 (HP)

State Of Himachal Pradesh v. Durga Ram

2019-06-14

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. (Oral) - The instant Criminal Appeal filed under section 378 of the Code of Criminal Procedure, 1973 lays challenge to judgment of acquittal dated 14.12.2006, passed by learned Sessions Judge, Solan, H.P., Camp at Nalagarh, in Criminal Appeal No. 11-NL/10 of 2006/05, reversing the judgment of conviction dated 14.09.2005, passed by learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, in Criminal Appeal No. 360/2 of 2000, whereby the learned trial Court held all the accused guilty, except accused Bagga Ram, of having committed the offences punishable under Section 379 of the Indian Penal Code (for short ''IPC) and under section 42 of the Indian Forest Act. Court held accused Bagga Ram guilty of having committed the offence punishable under Section 411 I.P.C. and further convicted and sentenced all the accused to undergo simple imprisonment for a term of three months and to pay fine of Rs. 500/-, each. 2. Briefly stated facts, as emerge from the record are that on 13.03.2000, police after having received information that some people were illegally cutting ''Khair'' trees from the forest seal, formed a raiding party associating Forest Guards. At about 6.00 p.m., the raiding party allegedly found some persons carrying some logs on their shoulders and thereafter, stacking the same in the kiln of Contractor Bagga Ramaccused No. 5. Allegedly, such persons were apprehended. On interrogation, they revealed that they had earlier also sold ''Khair'' logs to Contractor Bagga Ram-accused No. 5. The raiding party allegedly found eleven logs duly peeled and five logs with bark on the spot, i.e. the kiln of accused No. 5. At the instance of the accused, the police recovered axes and saws allegedly concealed by them under the bushes in the forest and took the same in its possession. The police also got the land demarcated and found that the trees were cut from Government land. After completion of the investigation, police presented Challan in the competent Court of law, which being satisfied that a prima-facie case exists against the accused, framed Charge under Section 379 of IPC and section 42 of the Indian Forest Act against accused Durga Ram, Mehar Singh, Madan Lal and Santokha, whereas accused Bagga Ram came to be charged for an offence punishable under Section 411 I.P.C., to which they pleaded not guilty and claimed trial. 3. 3. Investigating Agency with a view to prove its case, examined as many as 9 witnesses, whereas accused in their statements recorded under section 313 of the Code of Criminal Procedure, 1973 (for short ''Cr.P.C.'') denied the prosecution case in toto and also led evidence in their defence. 4. Learned Additional Chief Judicial Magistrate, Nalagarh, District Solan, vide judgment dated 14.09.2005 held all the accused guilty, except accused Bagga Ram, of having committed offences punishable under Sections 379 IPC and 42 of the Indian Forest Act. Learned trial Court held accused Bagga Ram guilty of having committed an offence punishable under Section 411 I.P.C. also, and accordingly convicted and sentenced them to undergo simple imprisonment for a term of three months and to pay fine of Rs. 500/-each. 5. Feeling aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, all the respondents-accused preferred an appeal in the Court of learned Sessions Judge, Solan, (HP), Camp at Nalagarh, who vide judgment dated 14th December, 2006, set aside the judgment of conviction recorded by the learned trial Court and acquitted all the respondents-accused of the charges framed against them. 6. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, praying therein for restoration of the judgment of conviction recorded by the learned trial Court after setting aside the judgment of acquittal recorded by the learned Sessions Judge, Solan, (HP), Camp at Nalagarh. 7. I have heard learned counsel representing the parties and perused the record carefully. 8. Having carefully perused the material evidence adduced on record by the prosecution, be it ocular or documentary, this Court finds no illegality in the judgment of acquittal recorded by the learned Sessions Judge, Solan (HP), Camp at Nalagarh, which otherwise appears to be based upon after proper appreciation of evidence led on record by the respective parties. This Court is not persuaded to agree with the contention raised by Mr. Ashwani Sharma, learned Additional Advocate General that the learned Sessions Judge has failed to appreciate the evidence in its right perspective, as a consequence of which, erroneous findings have come to the fore. This Court is not persuaded to agree with the contention raised by Mr. Ashwani Sharma, learned Additional Advocate General that the learned Sessions Judge has failed to appreciate the evidence in its right perspective, as a consequence of which, erroneous findings have come to the fore. Rather, this court finds that the learned Sessions Judge has dealt with each and every aspect of the matter meticulously and has rightly arrived at a conclusion that the accused could not be convicted by the learned trial Court on the basis of evidence led on record by the prosecution. 9. If the judgment rendered by the learned trial Court is read in its entirety, it certainly suggests that the version put forth by the prosecution that accused No. 1 to 4 were found carrying logs on their shoulders and stacking them in the kiln of accused Bagga Ram, weighed heavily with the learned trial Court while concluding guilt of the accused. This Court has no hesitation to conclude that the aforesaid version, if presumed to be correct, could not be a ground to hold the accused guilty because there is no evidence that accused No. 1 to 4 had cut ''Khair'' wood from the forest land and thereafter, carried the same to the kiln of co-accused Bagga Ram. Though, the prosecution made an endeavour to prove that police party, after having received the secret information, went to the forest seel, where they found accused No. 1 to 4 carrying logs on their shoulders, but interestingly, there is no explanation that why such persons were not apprehended then and there and why they were allowed to take logs to the kiln of co-accused Bagga Ram. It is not disputed that the place from where allegedly ''Khair'' trees were cut, is quite far from the kiln of co-accused Bagga Ram. No doubt, the Investigating Agency got the land demarcated from where allegedly the ''Khair'' trees were cut, but this may not be sufficient to conclude that logs being carried by accused No. 1 to 4 were actually cut from the trees standing on the land got demarcated by the police through Kanungo, who otherwise was not competent to demarcate the Government land. As per Instruction 10 (10) of the Financial Commissioner as contained in H.P. Land Records Manual, demarcation of Government land can only be conducted by an officer in the Rank of Assistant Collector 1st Grade, but in the case at hand, demarcation was conducted by Kanungo. Apart from the above, there is no material to suggest that complainant, if any, or accused ever came to be associated at the time of demarcation conducted by the Kanungo. 10. There is no evidence to link 16 logs of ''Khair'' allegedly carried by accused No. 1 to 4 to the kiln of co-accused Bagga Ram with the ''Khair'' trees allegedly cut from Government land. Admittedly, co-accused Bagga Ram was having permission to cut ''Khair'' wood from the private land to extract ''Katha''. Interestingly, in the case at hand, the learned trial Court returned a finding that accused Bagga Ram failed to produce evidence that 16 logs of ''Khair'' trees recovered from his kiln were actually cut from the land of private land owners and not from the Government land. Onus to prove a case beyond reasonable doubt against accused is always upon the prosecution. In the case at hand, accused Bagga Ram has placed on record copies of Felling Orders (Ext. DW-2/A & Ext. DW-3/A), which specifically proves on record that he had necessary permission of felling trees from the land of private land owners. He also proved that he was duly permitted by the Authorities concerned to run ''Katha'' kiln vide Ext. DW-1/A and as such aforesaid finding returned by the learned trial Court rightly came to be reversed in the judgment rendered by the learned Sessions Judge, Solan. 11. Though, having discussed the matter in detail, this Court sees no necessity to specifically deal with the statements made by prosecution witnesses, but having carefully examined/perused statements made by the prosecution witnesses, this Court has every reason to agree with the contention of Shri Amrinder Singh Rana, learned Counsel for the accused, that no conviction could be based upon statements having been made by prosecution witnesses being contradictory and inconsistent. 12. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. 12. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon''ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon''ble Apex Court has held that there must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in C. Magesh and others vs. State of Karnataka (2010) 5 SCC 645 , wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh vs. State of U.P. (2008)16 SCC 686 : 2008(11) SCR 286 has held:-( SCC p.704, para 14) " 14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy;..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proved so," hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses. 13. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses. 13. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction could be based upon the same. 14. Consequently, in view of the detailed discussion made herein above as well as law referred herein above, this Court sees no reason to interfere with the impugned judgment of acquittal passed by the learned Sessions Judge Solan (HP), Camp at Nalagarh and as such, the same is upheld. 15. Accordingly, the present appeal is dismissed being devoid of any merit along with pending applications, if any.