CRIMINAL APPEAL 122 of 2004 on 30 November 2000

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No.122 of 2004.

Date of Decision: 20.12.2010.

_______________________________________________

State of H.P.

…Appellant.

Versus

Shiv Lal.

….Respondent.

Coram:

Hon’ble Mr. Justice Dev Darshan Sud, Judge.

Whether approved for reporting1?. No.

For the petitioner :Ms.Shubh Mahajan, Dy. Advocate General For Respondent. :Mr.Neeraj Sharma,Advocate vice Mr.Vinay Thakur, Advocate.

Dev Darshan Sud, J.(Oral).

The State is aggrieved by the judgment of the learned Sub Divisional Judicial Magistrate, Rohru acquitting the respondent for offences under Sections 379, 353 and 506 I.P.C and Section 33 of the Indian Forest Act.

2. The prosecution case is that the accused had fell two trees of ‘Ban’ (Oak) IInd A-one and Ist A-one in Dhadi U.F. Forest on 30.11.2000 and has also damaged some ‘Kail’ trees which he ultimately converted into charcoal. The case is that in this process he caused damaged, the ‘Kail’ trees were lying in broken pieces at the spot. The prosecution is alleged to have caught the accused red handed while converting oak logs into billets for the purpose of converting into charcoal. One kassi, one axe and shovel had been seized from Sh. Dharam Dass, who had been engaged as a labourer. On being confronted, accused Shiv Lal refused to handover the axe, one kassi and one drat to the Forest Guard and instead threatened them and chased the Forest Guard with drat who fled away from the spot.

3. In order to prove its case, the prosecution has examined eleven witnesses. In defence, two witnesses were produced by the respondent. The learned trial Court has considered the evidence of PW5 Dharam Dass and PW8 Jagat Ram, who have witnessed the incident. The Court finds that the evidence of both these witnesses is contradictory.

4. Adverting to the evidence of PW5 Dharam Dass, the court holds that this witness has in no uncertain terms admitted in his cross-examination that these trees were felled from the orchard of one Har Dev (who has been produced as DW-1).

5. PW8 Sh.Jagat Ram Forest Guard has stated quite the contrary. In these circumstances, no reliance can be placed on his statement. The learned court then considers the statement of Parmod Singh who says that the stumps of the cut trees were quite old may be a year or more. He says that in case the trees have been freshly felled, they are green and easily identifiable.

6. DW-1 Har Dev has appeared in support of the defence to state that he allowed the accused to fell these two small trees for the purposes of converted into logs. It is in this totality that the case against the respondent was to be considered. The contradictions as noticed by the learned trial Court are basic and go to the root of the case.

7. Two facts have emerged from the evidence. (a) That the trees are not situated in the unprotected forest as alleged. This is clear from the evidence of Har Dev who says that the trees were allowed to be felled from his orchard and PW5 Dharam Dass who says that these trees are, in fact, situated in the orchard of this witness. (b) That the stumps which are alleged to have been left behind after the felling of trees were quite old. In other words, if the trees have been freshly cut the stumps would have been green and not withered and old. This has been stated in no uncertain terms by PW9 Parmod Singh.

8. In these circumstances, the submission made by the learned Deputy Advocate General that the learned Court has not assigned any cogent reasons for disbelieving the evidence of the prosecution, cannot be accepted. The very basis/foundation of the offence having been not established, no conviction could follow. It is also by now well settled that when two views are possible on the evidence on record, the one favouring the accused should and ought to be accepted in a judgment against the acquittal. I therefore find no merit in this appeal which is accordingly dismissed. Bail bonds furnished by the respondent shall stand discharged.

(Dev Darshan Sud), Judge.

December 20, 2010(R)