Allowed

State v. Pawan Kumar

Himachal Pradesh HC5 Sept 2024CR.A/28/2012

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh allowed an appeal against acquittal. It held that the entire criminal proceeding was void ab initio because the police investigated a non-cognizable offence under the Indian Forest Act without a Magistrate's order as mandated by Section 155 Cr.P.C. Consequently, the acquittal could not be sustained.

What did the court decide?

The appeal is allowed; the judgment of acquittal passed by the Trial Court is set aside and the records are returned for continuation of proceedings.

State Vs Pawan Kumar — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:7934 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 28 of 2012 Reserved on: 01.08.2024 Date of Decision: 05.09.2024.

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State of H.P. ...Appellant Versus Pawan Kumar ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge.

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Whether approved for reporting?¹ Yes

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For the Appellant : Mr. Jitender Sharma, Additional Advocate General. For the Respondent : Mr. S.C. Sharma, Senior Advocate, with Mr. Ravi Patial, Advocate.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment dated 20.07.2011 passed by learned Judicial Magistrate First Class, Anni, District Kullu, H.P. (learned Trial Court) vide which the respondent/accused before learned Trial Court was acquitted

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of the commission of an offence punishable under Section 42

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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read with Section 41 of the Indian Forest Act. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Sections 41 & 42 of the Indian Forest Act. It was asserted that ASI Brij Lal (PW-2), Constable Neel Chand (PW-4), and Constable Naresh Kumar (PW-6) were on patrolling duty on 24.10.2006. When they reached near Shamshar Road at 5:30 am, they found the accused with a backpack and a bag going towards Shamshar. The police apprehended him. He revealed his name as Pawan Kumar on enquiry. The police checked the backpack and the bag and found Guchhi inside them. Guchhi was weighed on the spot and the weight of Guchhi inside the backpack was found to be 9 kg 820 grams and Guchhi inside the bag was found to be 3 kg 880 grams. Thus, a total of 13 kg 700 grams of Guchhi was recovered from the possession of the accused. The police put the Guchhi in the backpack and the bag in the same manner in which it was recovered. The backpack and the bag were sealed with seal 'H'. The seal impression (Ext. PW-2/D) was taken on a separate

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piece of cloth and the seal was handed over to Naresh Kumar (PW-6) after use. Guchhi was seized vide memo (Ext. PW-2/A). Rukka (Ext. PW-2/B) was prepared and sent to the Police Station where FIR (Ext. PW-7/A) was registered. ASI Brij Lal (PW-3) conducted the investigation. He prepared the site plan (Ext. PW2/C). Beat Guard Bihari Lal (PW-3) was called to the spot. He issued the certificate (Ext. PW-3/A) regarding Guchhi being a forest produce. A special report (Ext.PW-1/A) was prepared and sent to the Divisional Forest Officer. The accused was arrested. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.

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The learned Trial Court put a Notice of Accusation to the accused for the commission of an offence punishable under Section 42 read with Section 41 of the Indian Forest Act. The accused pleaded not guilty and claimed to be tried.

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The prosecution examined seven witnesses to prove its case. Constable Mukesh Kumar (PW-1) proved that the special report was sent to the Divisional Forest Officer. Brij Lal (PW-2) headed the raided party. Bihari Lal (PW-3) issued a certificate

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regarding Guchhi being a forest produce. HC Neel Chand (PW-4) and Constable Naresh Kumar (PW-6) were a member of the raiding party. Deen Dayal Diwakar (PW-5) received the special report. ASI Lal Singh (PW-7) was working as an MHC and signed the FIR.

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The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that nothing happened in his presence and that he was innocent. The statements of Narender Kumar (DW-1), Vivek Sharma (DW2) and Pawan Kumar (DW-3) were recorded in defence.

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Learned Trial Court held that the prosecution version that the accused was carrying Guchhi at the time of his apprehension was duly established but the defence evidence proved that Vivek Sharma had a permit. His motorcycle developed a defect on the way to Shimla and he had handed over the Guchhies to the accused for being delivered to his relatives at Anni. Vivek Sharma had produced the permit showing that he had the authority to transmit the Guchhi. The accused was carrying Guchhi on behalf of Vivek Sharma. Hence, the accused was acquitted.

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Being aggrieved from the judgment passed by the learned Trial Court, the State has filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The evidence was not properly appreciated. Unrealistic standards were set to evaluate the prosecution evidence. The testimonies of prosecution witnesses were discarded without any reason. The police were on patrolling and traffic checking duty and they had no prior information. No independent witness could have been associated by the police. The testimonies of the police officials were natural and supported the prosecution case. The testimonies of defence witnesses were wrongly accepted. Witnesses DW-2 and DW-3 were related to the accused and they had a motive to support the accused. As per the permit, the Guchhi was to be transported on the route starting from Gyaghi to Shimla. No copy of the permit was sent to forest check post Luri which falsified the defence version. Learned Trial Court erred in accepting the defence version; therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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I have heard Mr Jitender Sharma, learned Additional Advocate General for the appellant and Mr S.C. Sharma, learned

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Senior Advocate assisted by Mr Ravi Patial, learned counsel for the respondent.

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Mr. Jitender Sharma, learned Additional Advocate General for the appellant submitted that the learned Trial Court erred in acquitting the accused. The statements of prosecution witnesses proved that the accused was transporting the forest produce without any valid permit. The defence version that the permit was issued in the name of Vikas Sharma was not probable. He had also not sent a copy of the forest permit to the forest check post. The forest produce was being transported from some other route than prescribed in the permit. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

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Mr S.C. Sharma, learned Senior Advocate for the respondent/accused supported the judgment passed by the learned Trial Court. He submitted that there are discrepancies in the testimonies of the prosecution witnesses. The police could not have investigated the offence as the same was noncognizable. The evidence does not prove that Guchhi was a forest produce because a specific type of Guchhi has been defined as a

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forest produce and there is no evidence that Guchhi belongs to that type. Hence, he prayed that the appeal be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The present appeal is filed against a judgment of acquittal. It was laid down by the Hon’ble Supreme Court in Mallappa v. State of Karnataka, (2024) 3 SCC 544: 2024 SCC OnLine SC 130 that an appeal against acquittal cannot be allowed merely on the difference of opinion. It was observed:

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“25. We may first discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretised when the case ends in acquittal. It is so because once the trial court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal.

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26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first

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and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity.

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27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “ two-views theory ” has been judicially recognised by the courts and it comes into play when the appreciation of evidence results in two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of the innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. Therefore, when two views are possible, following the one in favour of the innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law.

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28. In Selvaraj v. State of Karnataka [ Selvaraj v. State of Karnataka , (2015) 10 SCC 230: (2016) 1 SCC (Cri) 19] : (SCC pp. 236-37, para 13)

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“ 13 . Considering the reasons given by the trial court and on an appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri v. State of T.N. [Jagan M. Seshadri v. State of T.N., (2002) 9 SCC 639: 2003 SCC (L&S) 1494] has laid

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down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus : (SCC p. 643, para 9) ‘ 9 . … We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.’”

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29. In Sanjeev v. State of H.P. [Sanjeev v. State of H.P., (2022) 6 SCC 294: (2022) 2 SCC (Cri) 522] , the Hon'ble Supreme Court analysed the relevant decisions and summarised the approach of the appellate court while deciding an appeal from the order of acquittal. It observed thus: (SCC p. 297, para 7)

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“ 7 . It is well settled that:

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7.1 . While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned (see Vijay Mohan Singh v. State of Karnataka [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586 ] and Anwar Ali v. State of H.P. [Anwar Ali v. State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri) 395] ).

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7.2 . With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced (see Atley v. State of U.P. [Atley v. State of U.P., 1955 SCC OnLine SC 51: AIR 1955 SC 807] ).

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7.3 . If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal (see Sambasivan v. State of Kerala [Sambasivan v. State of Kerala, (1998) 5 SCC 412: 1998 SCC (Cri) 1320] ).”

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The present appeal has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The police have presented a challan against the accused for the commission of an offence punishable under Section 42 read with Section 41 of the Indian Forest Act. It was laid down by this Court in Pushap Raj & Another vs. State of H.P. 2017 (2) SimL.C 634 2017 STPL 14433 HP that the offences punishable under Section 42 of Indian Forest Act are bailable and non-cognizable. It was observed:

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“11. It is not disputed that Sections 41 and 42 of the Indian Forest Act are bailable and non-cognizable offences. Similar is the position with Section 120-B of the Indian Penal Code, keeping in view that the main offences for the commission of which the accused were charged are bailable and non-cognizable. In these circumstances, it is but apparent that the appeal filed by the State against the judgment of acquittal passed by the learned trial Court in the Court of learned Sessions Judge, Mandi was not

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maintainable and was hit by provisions of Clause (b) of Sub-section (1) of Section 378 of the Code of Criminal Procedure. Despite this, the learned appellate Court not only entertained an appeal which was not maintainable before it but also went on to adjudicate upon the same and convicted the present petitioners by setting aside the judgment of acquittal passed by the learned trial Court.”

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It was held in Fateh Singh & Others versus State of H.P.

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2016 (Supp) Shim. LC 357 that the police are debarred from investigating a non-cognizable offence punishable under Section 42 of the Indian Forest Act. It was observed:

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“11. Sub-Section 2 of Section 155 of Cr. P.C. provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having the power to try such a case or commit the case for trial. The exception carved out in Sub Section 4 of said Section is that where a case relates to two or more offences, out of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.

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Admittedly in the present case, the case made out by the prosecution against the accused was for the noncognizable offence. However, rather than following the procedure provided in Sub Section (2) of Section 155 of the Cr. P.C., the police officer carried on with the investigation of the non-cognizable case without there being any order from the Magistrate having the power to try such a case. This is further evident from the fact that FIR registered in this regard Ext. PW9/A, dated 20.06.2002, nowhere contains that the same has been registered on the basis of directions issued by the concerned Magistrate to carry out an investigation in the case. Therefore, there is merit in the contention of Mr. Palsra that the police could not have investigated the non-cognizable offence without the prior

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permission of the Magistrate and information should have been referred to the Magistrate concerned. This Court in State of H.P. v. Satpal Singh @ Satta and another, 2009 1 Latest HLJ 732 (HP) and the connected matter has held that offences under Sections 41 and 42 of the Indian Forest Act are non-cognizable as per Schedule II of the Criminal Procedure Code and if the police are not permitted by the Magistrate to investigate the case for such offences, the investigation carried out would vitiate entire proceedings being illegal. Accordingly, in view of the statutory provisions as well as the law laid down by this Court, in my considered view, the judgment and conviction passed against the accused by the learned trial Court and upheld by the learned Appellate Court are perverse and liable to be set aside. Both the learned Courts below have failed to appreciate that the police officer could not have investigated the case against the accused in the absence of an order of Magistrate as contemplated under Sub Section (2) of Section 155 of the Cr. P.C. and in the absence of any such order by the Magistrate, the entire proceedings initiated against the petitioners were vitiated.”

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Therefore, the police could not have investigated the present case and no charge sheet could have been filed before the Court for the commission of an offence punishable under Section 42 of the Indian Forest Act and the whole proceedings before the learned Trial Court were void ab initio.

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The State has relied upon the notification dated 28.02.2003 prescribing the list of medicinal herbs for which the control was given to the concerned Panchayat. Guchhi has been mentioned at Sl. No. 9 with the botanical name of Morchella

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Esculenta. Therefore, the prosecution was required to prove that the article seized from the accused had a Botanical name of Morchella Esculenta. The prosecution examined Bihari Lal Forest Guard (PW-3) who issued a certificate (Ext. PW-3/A) stating that the forest produce recovered by the police was Guchhi. It nowhere mentions the botanical name of the forest produce. He was examined as an expert. Therefore, it was essential to prove that the article recovered had a botanical name prescribed in the notification. It was laid down by the Hon'ble Supreme Court in State of H.P. v. Jai Lal, (1999) 7 SCC 280: 1999 SCC (Cri) 1184: 1999 SCC OnLine SC 885 that an expert is a person who has made a special study of the subject and he has to furnish the material to the Court to enable the Judge to form an independent opinion. The report should state the facts and the opinion.

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“17. Section 45 of the Evidence Act which makes the opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to the identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to the identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other

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words that he is skilled and has adequate knowledge of the subject.

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18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.

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19. The report submitted by an expert does not go into evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B. [AIR 1959 SC 488: 1959 Supp (1) SCR 922] concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons.”

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This position was reiterated in Ramesh Chandra Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709: (2009) 3 SCC (Civ) 840: 2009 SCC OnLine SC 1625 wherein it was observed at page 715:

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18. The importance of the provision has been explained in State of H.P. v. Jai Lal [(1999) 7 SCC 280: 1999 SCC (Cri) 1184] . It is held, that, Section 45 of the Evidence Act which makes the opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, of science, or art, or as to the identity of

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handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to the identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.

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19. It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Alfred Robert Jones [AIR 1934 All 273] that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.

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20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly v. Dr. Sukumar Mukherjee [(2009) 9 SCC 221: (2009) 10 Scale 675 ], SCC p. 249, para 34.)

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21. In State of Maharashtra v. Damu [(2000) 6 SCC 269: 2000 SCC (Cri) 1088: AIR 2000 SC 1691] , it has been laid down that without examining the expert as a witness in court, no reliance can be placed on an opinion alone. In this regard, it has been observed in State (Delhi Admn.) v. Pali Ram [(1979) 2 SCC 158: 1979 SCC (Cri) 389: AIR 1979 SC 14]

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that “no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him”.

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22. In the article “Relevancy of Expert's Opinion” it has been opined that the value of expert opinion rests on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the data on the basis of which opinion is formed. The same is clear from the following inference:

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“Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.”

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Hence, it was essential for Bihari Lal to state the botanical name and not the local name. The legislature has consciously used the botanical name with some purpose and in the absence of any evidence of the botanical name, the prosecution version that the accused had violated the Rules framed under Section 41 and thereby violated Section 42 of the Indian Forest Act is not acceptable.

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The accused examined Vivek Sharma (DW-2) who stated that the Guchhi was being transported from Banjar to Shimla as per the permit (Mark-B). He was driving his Motor Cycle but the tyre of the motorcycle was punctured. He handed over the motorcycle to the accused along with Guchies with a direction to drop them off with Surender Lala. He stated in his cross-examination that the permit was issued in his name and the accused did not have a permit at the time of his apprehension.

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It was not disputed in his cross-examination that he had a valid permit to transport Guchhies. He stated on oath that he had handed over Guchhies to the accused with the direction to drop them with Surender. Nothing has been elucidated in his cross-examination to show that he was making a false statement. The mere fact that he had not handed over the permit to the accused is not sufficient to implicate the accused when the person who had handed over the Guchhies had a valid permit with him.

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