State Of Himachal Pradesh v. Gian Chand And Others

1. This is an appeal against the judgment dated February 8, 1995 passed by the learned Chief Judicial Magistrate, Hamirpur whereby the accused/respondents (hereafter referred to as the ‘accused’) have been acquitted of the charge under Sections 41/42 of the Indian Forest Act and Section 120-B of the Indian Penal Code, preferred by the State. Case of the prosecution, in brief, is that on May 15, 1992, PW-4 Jagir Chand, Sub-Inspector (Enforcement) was present at Bus Stand Hamirpur along with a few other police officials in connection with the investigation against Kishan Chand, driver of Truck No. HPK-5281 and he came to know that Truck No. HP-36/0591 had come to Hamirpur from Nadaun side. He checked the said Truck in the presence of the police officials who were members of the raiding party and PW-1 Prem Nath and PW-2 Harbhajan Singh. The Truck was being driven by accused Rashpal Singh and wooden logs were loaded in the said Truck. The Truck driver on demand produced ‘Parcha Hamrai’ challan etc. which were taken in possession vide memo. Ext. PW-2.A. The Truck was then brought to Rest House at Hamirpur. As per the challan, the Truck was to carry 120 logs of Simble whereas there was a larger quantity of the wood in the said Track, therefore, he drew up ‘Rooka’ Ext. PW-4.A and forwarded it to S.H.O Police Station (Enforcement) Dharamshala for registration of a case under Sections 41/42 of the Indian Forest Act and Section 379 of the Indian Penal Code. He took in possession 259 logs consisting of 61 logs of Simble, 7 logs of Umria, 11 logs of Bhera and 180 logs of Simble of different sizes as per the details Ext. PW-1.B vide memo. Ext. PW-1.A. He also took in possession the documents of the offending vehicle vide memo. Ext. PW-4.B. Though not clarified properly, but it has been mentioned in the charge-sheet submitted against the accused that the other two accused were co-conspirators in the illicit transportation of the timber in the aforesaid Truck being driven by accused Rashpal Singh. A charge-sheet was accordingly submitted to the concerned Court. The accused came to be tried by the learned Chief Judicial Magistrate, Hamirpur who acquitted them by the impugned judgment, hence this appeal.

2. I have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have gone through the record.

3. It may be pointed out that though there is not even an iota of evidence to prove the involvement of accused Gian Chand and Beli Ram in the commission of the offence complained against, yet in their statements under Section 313 of the Criminal Procedure Code, the accused have admitted the transportation of the wood in question and have claimed that they had a permit for transportation thereof. The accused have not led any evidence to prove that they were in possession of a valid permit for transportation of the goods but to prove this defence they have relied on certain admitted facts in the evidence of the prosecution which have partly been relied upon by the learned trial Magistrate also in acquitting the accused.

4. PW-4 Jagir Chand, Sub-Inspector, the Investigating Officer in this case, in his statement has clearly and unambiguously stated that the vehicle was driven by Rashpal Singh who did not possess any export permit, however, he has further stated in his examination-in-chief itself that he took ‘Parcha Hamrai’ mark-A in possession from accused Bali Ram and export permit mark-C from accused Gian Chand. It means that during the course of investigation ‘Parcha Hamrai’ mark-A was taken in possession from accused Bali Ram and export permit, which though referred to as mark-C in his statement but not available on the record, was also taken in possession by him. Having taken in possession these documents, it is for the prosecution to explain as to why the transportation of the wood in question was illicit in the face of the aforesaid documents. However, neither the ‘Parcha Hamrai’ nor the export permit (which though stated to be mark-C but not available on the record) have been proved in evidence. The production and proof of these documents was necessary to find out as to whether the wood transported in the Truck was as per the permit and the ‘Parcha Hamrai’ or not. In case the wood was being transported in accordance with the contents of the permit and the ‘Parcha Hamrai’, the accused could not have been held guilty, and in case the wood was being transported in contravention of the terms, conditions and contents of these documents, the accused could be held guilty of illicit transportation of the wood. However, as stated above, these two documents have not been proved in accordance with law. Though the export permit mark-C is not on the record but that should not deter this Court from finally disposing the matter for the reason that such a document was not exhibited in evidence but was simply marked and, therefore, could not have been read in evidence even if it was available on the record and, thus, its not being on record cannot have any material bearing on the conclusion aforesaid.

5. It may be further pointed out that ‘Parcha Hamrai’ mark-A and payment receipt of taxes in the sum of Rs. 480/- for carriage of 12 cubic meter of pulp wood had been taken in possession from accused Rashpal Singh vide memo. Ext. PW-2.Aand not from accused Bali Ram and it appears that said Bali Ram was not even present when the aforesaid two documents mark-A and mark-B were taken in possession. Thus, if any ‘Parcha Hamrai’ has been taken in possession by the Investigating Officer from Gian Chand as stated by him, that must be a different document and cannot be mark-A which even according to PW-4 Jagir Chand himself, was found in possession of the driver. If so, the ‘Parcha Hamrai’ taken in possession from accused Gian Chand has not been brought on record at all which also has a damaging effect on the case of the prosecution.

6. It cannot be said that it was for the accused to produce and prove the permit and the ‘Parcha Hamrai’ because they were not in possession of these documents which were, admittedly, taken in possession by the Investigating Officer. Even otherwise, it is for the prosecution to prove its case and not for the accused to prove their innocence.

7. It may also be pointed out that it is admitted by PW-1 Prem Nath that the seized wood was marked. Once log of the seized wood Ext. P-1 only has been produced in the Court. PW-4 Jagir Chand, Sub-Inspector who has identified it as one of the seized logs, has admitted that Ext. P-1 did not bear any mark. At the time of seizure the Investigating Officer had not put any independent identification mark on the case property, thus the question of existence of such mark on the produced log does not arise. However, the seized wood was otherwise bearing a mark but one of the logs out of such wood, as produced in the Court Ext. P-1, did not bear any mark, therefore, it also appears that there has been tampering with the case property the benefit whereof also goes to the accused.

8. In view of the above, what can be said is that the learned trial Magistrate has rightly and correctly appreciated the evidence on record and has drawn correct conclusions therefrom, therefore, the impugned order of acquittal passed by him cannot be said (to be) unsustainable and, thus, the impugned judgment does not call for any interference by this Court. As a result, this appeal merits dismissal and is accordingly dismissed. The bail bonds furnished by the accused are discharged.

9. Appeal dismissed.