Madan Singh Vs State

dated 12.10.2011, passed by learned Sessions Judge, Shimla, District Shimla, H.P. (learned Appellate Court), vide which the judgment of conviction dated 26.5.2009 and order of sentence dated 3.6.2009, passed by learned Judicial Magistrate First Class,

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

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Theog, District Shimla, H.P. (learned Trial Court) were upheld. (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 revision are that the police presented a challan against the accused before learned Trial Court for the commission of offences punishable under Section 379 of the Indian Penal Code (in short ‘IPC’) and Sections 41 and 42 of the Indian Forest Act (in short ‘the Forest Act’). It was asserted that HC Subhash Kumar (PW11), Constable Sunil Kumar (PW6) and Constable Sunil Kumar (PW10) were present near Harog on 11.11.2016 at about 12.30 AM. They signalled a Tempo Trax, bearing registration No. HP-09A-1175 to stop. The driver identified himself as Madan Singh (the accused). The police found logs of deodar loaded in the Trax. The police called Pradhan Amar Singh (PW7) and searched the vehicle in his presence. 20 logs of different sizes were found. The accused could not produce any permit to transport the timber. The police seized the timber on the spot along with the vehicle and the documents vide memo (Ex.PW6/A). HC Subhash Kumar prepared a rukka (Ex.PW11/A) and sent it to the Police Station, where FIR (Ex.PW9/A) was

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registered. HC Subhash Kumar conducted the investigation on the spot. He prepared a site plan (Ex.PW11/B). B.O. Sant Ram (PW1) also reached the spot. The vehicle was brought to the Police Station, where timber was measured. The detail of the measurement (Ex.PW1/A) was prepared. The accused led the police to the place from where the trees were cut. 12 trees were found to have been recently cut. Sant Ram (PW1) identified the place as part of U-138 Jahoo Beat. The site plan (Ex.PW11/C) was prepared. The timber was handed over on Sapurdari to Kishori Lal (PW4) vide memo (Ex.PW3/A). The Forest Department put the seizure hammer on the seized timber. Its impression was obtained on the memo (Ex.P1/A). The statements of remaining witnesses were recorded as per their version, and after completion of the investigation, a challan was prepared and presented before the Court.

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Learned Trial Court charged the accused with the commission of offences punishable under Section 379 of IPC and Section 42 of the Forest Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined 11 witnesses to prove its case. Sant Ram (PW1) reached the spot after he was informed of the seizure of the timber. Mahinder Singh (PW2) is the owner of the vehicle. Surjit Singh (PW3) is the witness to Sapurdari. Kishori Lal (PW4) was posted as Forest Guard to whom the timber was handed over on Sapurdari. Meena (PW5) proved the entry in the daily diary. Sunil Kumar (PW6) and Sunil Kumar (PW10) were the members of the police party in whose presence the vehicle was stopped and checked. Amar Singh (PW7) was called to the spot as an independent person. Rajinder (PW8) measured the timber. ASI Ramesh Thakur (PW9) signed the FIR. HC Subhash Kumar (PW11) effected the recovery and conducted the investigation.

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The accused in his statement recorded under Section 313 of Cr.P.C. admitted that his signatures were obtained in the documents. He denied the rest of the prosecution's case. He examined Daulat Ram (DW1) in defence.

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Learned Trial Court held that the testimonies of the police ofÏcials corroborated each other. Independent witness Amar Singh (PW7) also supported the prosecution's case. The

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statement of Daulat Ram (DW1) was not reliable. The accused had failed to produce any permit as required under Rule 11 of the HP Forest Produce Transit (Land Route) Rules, 1978 (Transit Rules). There is a presumption under Section 69 of the Forest Act that the forest produce belongs to the State, and the accused had failed to rebut this presumption. Hence the learned Trial Court convicted the accused of the commission of an offence punishable under Section 379 of IPC and Section 42 of the Forest Act and sentenced him to undergo simple imprisonment for six months and to pay fine of ₹1,000/- and in default of payment of fine, to undergo simple imprisonment for two months each for the commission of offences punishable under Section 379 of IPC and Section 42 of Forest Act.

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Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal, which was decided by the learned Sessions Judge, Shimla. The learned Appellate Court concurred with the findings recorded by the learned Trial Court that the testimonies of the prosecution witnesses corroborated one another. The prosecution’s case could not be doubted merely because the owner of the vehicle had not supported the prosecution's case. The statement of

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Daulat Ram (DW1) that forest produce was being loaded in the vehicle was not reliable. He denied that the timber was freshly cut, whereas the prosecution's evidence clearly showed that the timber was freshly cut. Therefore, his testimony regarding the loading of the timber was not credible. Minor contradictions in the statements of the prosecution’s witnesses were not sufÏcient to discard their testimonies. The accused was rightly convicted and sentenced for the commission of an offence punishable under Section 42 of the Indian Forest Act. The learned Appellate Court disagreed with the findings recorded by the learned Trial Court that the offence of theft was proven. It was held that the presumption under Section 69 of the Indian Evidence Act cannot be used for convicting a person of theft. Thus, the appeal was partly allowed, and the accused was acquitted of the commission of an offence punishable under Section 379 of the IPC.

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Being aggrieved by the judgments and order passed by the learned Courts below, the accused filed the present revision, asserting that the learned Courts below based their judgments on conjectures and surmises. It was not proved that the accused was driving the vehicle. The defence version that the

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forest ofÏcial and the police ofÏcial loaded the timber in the vehicle was probable. This version was wrongly discarded. Pradhan, Gram Panchayat, was inimical to the accused. The petitioner is the sole provider of his family and should not have been sent to jail; rather, the benefit of the Probation of Offenders Act should have been provided to him. Hence, it was prayed that the present revision be allowed and the judgments and order passed by learned Courts below be set aside.

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I have heard Mr. Ajay Kochhar, learned Senior Counsel, assisted by Mr. Anubhav Chopra, learned counsel for the petitioner/accused and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State.

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Mr. Ajay Kochhar, learned Senior Counsel for the petitioner/accused, submitted that the learned Courts below erred in convicting and sentencing the accused. The testimonies of the police ofÏcials were contradicted by the statement of Daulat Ram (DW1). It was highly probable that timber was loaded in the vehicle by the police. The timber was not produced before the Court, and this is fatal to the prosecution's case. He relied upon the judgment of the Hon’ble Supreme Court in

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Pawan Kumar Vs. State of H.P. (2019) 4 SCC 182 in support of his submission.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the learned Courts below had rightly appreciated the evidence and this Court should not interfere with the concurrent findings of fact recorded by the learned Courts below. Therefore, it was prayed that the present revision 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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It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: -

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of

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interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings.

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This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed:

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“13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularity of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460, where the scope of Section 397 has been considered and succinctly explained as under:

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“ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the

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orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits.

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Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC.”

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The present revision has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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Sant Ram (PW1) stated that he reached U-38 Jahoo Jungle at 12.15 AM along with his Chowkidar and Forest Guard. The police had already reached the spot. A vehicle bearing registration No. HP-09A-1175 was parked on the road. 14 logs of

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deodar were loaded in the vehicle. The accused, Madan Singh, was sitting in the vehicle. 6 logs were lying on the road. Pradhan Gram Panchayat was also present. 6 logs were put in the vehicle, and the accused was brought to the Police Station, Theog. These logs were measured in the Police Station.

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This witness was not cross-examined by the prosecution which means that his testimony has not been discredited by the prosecution. Hence, the same is to be accepted as correct. In Javed Masood vs State of Rajasthan (2010) 3 SCC 538 , the prosecution came up with a specific version that the incident was witnessed by three witnesses, Husain Lal, Rayees and Ayub Bhai. When Ayub Bhai appeared in the Court, he stated that he saw a crowd and came to know on inquiries that the deceased was lying completely soaked in blood. He telephoned other people who came after some time. This witness was not declared hostile. He was not even re-examined by the prosecution. It was held that his testimony made the prosecution's case doubtful regarding the presence of other persons, and it would not be proper to rely on their testimonies. It was observed:

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“This witness did not support the prosecution's case. He was not subjected to any cross-examination by the

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prosecution. His evidence remained unimpeached. There is no reason to disbelieve the evidence of PW-6, and no valid reason has been suggested as to why his evidence cannot be relied on and taken into consideration. The evidence of PW-6, if it is to be taken into consideration, makes the presence of PWS 5, 13 and 14 highly doubtful at the scene of occurrence. We do not find any reason whatsoever to discard the evidence of PW-6, who is an independent witness. His evidence is binding on the prosecution as it is. No reason, much less a valid reason, has been stated by the Division Bench as to how evidence of PW-6 can be ignored.

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In the present case, the prosecution never declared PWs 6, 18, 29 and 30 "hostile". Their evidence did not support the prosecution. Instead, it supported the defence. There is nothing in the law that precludes the defence to rely on their evidence. This court in Mukhtiar Ahmed Ansari vs State (NCT of Delhi) (2005) 5 SCC 258 observed:

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"30. A similar question came up for consideration before this Court in Raja Ram v. the State of Rajasthan (2005) 5 SCC 272 . In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor, and it was binding on the prosecution.

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In the present case, evidence of PW1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in, which police had gone to the Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence."

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Similar is the judgment in Ram Sewak vs State

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2004(11) SCC 259 wherein it was held that when a discrepancy had cropped up which was not clarified in the re-examination, the benefit of the said discrepancy would go to the defence. It was observed:

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“Even assuming that there is some doubt as to the interpretation of this part of his evidence since the same is not clarified by the prosecution by way of reexamination, the benefit of the doubt should go to the defence, which has in specific terms taken a stand that the FIR came into being only after the dead body was recovered.”

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Therefore, the benefit of the statement made by Sant Ram (PW1) will go to the accused. Once he stated that the vehicle had 14 logs of timber and that 6 logs were lying on the road, which were loaded in his presence, the prosecution's case that the accused was intercepted with 20 logs of timber has become doubtful, and benefit of every doubt in the prosecution's case must be given to the accused.

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Learned Appellate Court held that the statement of Sant Ram (PW1) will not help the accused because he stated that 12 logs of Deodar were loaded in the vehicle, and 8 logs were lying on the spot. The defence never stated that the accused was only carrying 12 logs. It appeared that the forest produce was

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stacked and was to be loaded in the vehicle, and the possibility of the accused in loading the forest produce to wriggle out of the charge could not be ruled out. These findings are contrary to the record. First, Sant Ram (PW1) stated that 14 and not 12 logs, as noted by the learned Appellate Court, were in the vehicle, and 6, not 8, as noticed by the learned Appellate Court, were lying on the road. Secondly, it is nobody’s case that the forest produce was kept on the road after extraction and it was loaded into the vehicle. The prosecution has come with the specific case that the timber was loaded in the vehicle when it was intercepted by the police. No police ofÏcial stated that the accused had tried to unload the vehicle to wriggle out of the charge, and the possibility, noted by learned the Appellate Court, did not appear on record. However, the statement of Daulat Ram (DW1) that the vehicle was empty and 22 logs were lying on the road, which were loaded in the vehicle, is not trustworthy because it is contrary to the statement of Sant Ram (PW1), with whom Daulat Ram claimed to have visited the spot.

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Learned Trial Court held that Sunil Kumar (PW6), Amar Singh (PW7) and Sunil Kumar (PW10) consistently stated about the presence of 20 logs of timber in the vehicle, and there was no reason to disbelieve their testimonies. Learned Trial Court ignored the statements made by Sant Ram (PW1) that when he visited the spot, the vehicle had 14 logs and 6 logs were lying on the road, which were loaded thereafter. This statement falsified the prosecution’s version that the vehicle was loaded with 20 logs when it was intercepted by the police.

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It was submitted that the testimony of Sant Ram proved that the vehicle had 14 logs and the accused was present in the vehicle. The accused is liable to be punished for transporting 14 logs. This submission will not help the prosecution. It is trite to say that the prosecution has to prove the case projected by it, and the Court cannot make out a different case for it. Hence, it is not permissible for the Court to make out a case for the prosecution that the accused was transporting 14 logs when the prosecution had not come with this version before the Court.

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It was specifically mentioned by Sant Ram (PW1) that the forest guard marked his seizure hammer No.5-TH Theog on the seized timber. HC Subhash Chand (PW11) also stated in his examination-in-chief that the timber was handed over to Kishori Lal vide sapurdari memo. Forest Guard put the seizure hammer on the timber and the list (Ex.PW1/A). Therefore, the fact that the timber was marked with the seizure hammer is duly established.

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24 The prosecution did not produce 20 logs of deodar before the Court, but produced only one sample (Ex.P2) during the examination of HC Sunil Kumar (PW10), who had identified it. He admitted in his cross-examination that the seizure hammer was not put on the log. He volunteered to say that the impression was not visible due to the lapse of time. No witness stated that the seizure hammer becomes invisible with time. Hence, the explanation provided by HC Sunil Kumar that the seized hammer becomes invisible with time is not acceptable. HC Subhash Kumar (PW11) also stated that he had not seen 19 logs but only 01 log. No reason was assigned for not producing 20 logs of deodar. It was laid down by the Hon’ble Supreme Court in Pawan Kumar v. State of H.P. , (2019) 4 SCC 182: (2019) 2

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SCC (Cri) 39: 2019 SCC OnLine SC 359 that when the seized wood and the vehicle were not produced, and only one sample was produced, the accused cannot be convicted of the commission of offences punishable under Section 379 of the IPC and Section 42 of the Forest Act. It was observed at page 183: -

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“4. We have heard the learned counsel for the respondent in opposition to the appeal and considered the nature of the evidence available. Non-production of the seized wood and the vehicle, the primary evidence of the offence, renders the prosecution's case fragile and unsustainable. Mere production of the seizure memo does not tantamount to the production of the seized woods and the lorry. Unless the seized wood was produced, mere production of a sample, and there is no material in support that the sample was out of the same 22 logs, we are unable to sustain the conviction of the appellants.”

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Therefore, in view of this binding precedent, the

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non-production of the timber is fatal to the prosecution's case, and the mere production of one log is not sufÏcient to record a conviction.

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Learned Courts below did not consider these aspects.

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They proceeded on the basis that Sant Ram had supported the prosecution's case. They failed to appreciate that the statement of Sant Ram made the prosecution case suspect that the accused

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was transporting 20 logs, and the benefit of his testimony was to

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be given to the accused and not to the prosecution. They did not consider the non-production of the case property and arrived at a result which could not have been arrived at by any reasonable person. Therefore, the judgments and order passed by learned Courts below are not sustainable.

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Consequently, the present revision is allowed, and the accused is acquitted of the commission of the offence punishable under Section 42 of the Indian Forest Act.

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The fine amount shall be refunded to the accused after the expiry of the period of limitation, and in case no appeal is preferred, and in case an appeal is preferred the same be dealt with as per orders of the Hon’ble Supreme Court.

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In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, (2023) the petitioner/accused is directed to furnish bail bonds in the sum of ₹25,000/-each with one surety each in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of appeal being filed against this judgment, or on grant of the leave, the petitioner/accused on

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receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

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A copy of this judgment, along with the record of the learned Trial Court, be sent back forthwith. Pending applications, if any, also stand disposed of.

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( Rakesh Kainthla) Judge

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01^st May, 2025 (Chander)

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF KARAN HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225 878f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec939375 291962d0d90d094876bd59591426c0b1ce651 f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document GULERIA Location: Date: 2025-05-01 17:35:56

Madan Singh v. State

Case brief

What is this about?

What did the court decide?

Madan Singh v. State

Case brief

What is this about?

What did the court decide?

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