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1999 Supreme(HP) 169
High Court Of Himachal Pradesh
M.R.VERMA
KEHAR SINGH - Appellant
Versus
STATE OF H.P. - Respondent
Criminal Revision No. 80 of 1998 & 81 of 1998
Decided On : 08/25/1999
For the Petitioner:Mr. Jagdish Vats with Mr. Vinay Thakur, Advocates. For the Respondents:Mr. K.D. Batish, Additional Advocate General.
Non-compliance with the provisions of Section 100(4) of the Code of Criminal Procedure is an irregularity and not an illegality, and does not render the conviction and sentence illegal.
Headnote:
CRIMINAL LAW - ILLEGAL TRANSPORTATION OF TIMBER - CONVICTION AND SENTENCE - REVISION PETITION - GROUNDS OF CHALLENGE - NON-JOINING OF INDEPENDENT WITNESSES - INVESTIGATION BY COMPLAINANT POLICE OFFICER - RETALIATION - MEASUREMENT OF TIMBER - NON-EXAMINATION OF LABOURERS - NON-ASSISTANCE FROM NEARBY POLICE POST - LEGALITY OF CONVICTION AND SENTENCE - INTERPRETATION OF RELEVANT PROVISIONS - APPLICABILITY OF LEGAL PRINCIPLES.
Fact of the Case:
Accused persons were convicted and sentenced for illegally transporting timber. They challenged the conviction and sentence on various grounds, including non-joining of independent witnesses, investigation by the complainant police officer, retaliation, measurement of timber, non-examination of laborers, and non-assistance from a nearby police post.
Finding of the Court:
The court held that the non-joining of independent witnesses and the investigation by the complainant police officer did not render the conviction and sentence illegal. The court also found that the defense of retaliation was an afterthought and not supported by evidence. The court further held that the measurement of timber at the police station instead of on the spot was not fatal to the case, and the non-examination of laborers who unloaded the truck did not raise suspicion about the genuineness of the recovery. The court also found that it was not necessary to take assistance from the nearby police post for the Nakabandi.
Issues: 1. Whether the non-joining of independent witnesses and the investigation by the complainant police officer rendered the conviction and sentence illegal. 2. Whether the defense of retaliation was valid and supported by evidence. 3. Whether the measurement of timber at the police station instead of on the spot and the non-examination of laborers who unloaded the truck raised suspicion about the genuineness of the recovery. 4. Whether it was necessary to take assistance from the nearby police post for the Nakabandi.
Ratio Decidendi: 1. The non-joining of independent witnesses and the investigation by the complainant police officer did not render the conviction and sentence illegal, as the provisions of Section 100(4) of the Code of Criminal Procedure are not mandatory and non-compliance thereof is an irregularity and not an illegality. 2. The defense of retaliation was an afterthought and not supported by evidence, as the accused failed to lead any evidence to prove this plea of defense. 3. The measurement of timber at the police station instead of on the spot and the non-examination of laborers who unloaded the truck did not raise suspicion about the genuineness of the recovery, as the value of the seized timber was substantial and it was not probable that the police would have managed to plant the timber to implicate the accused. 4. It was not necessary to take assistance from the nearby police post for the Nakabandi, as the Naka party constituted at the police station was not required to take any police officials from the police post as a member of such party.
Final Decision: The revision petitions were partly allowed to the extent that the conviction and sentence awarded to accused Kehar Singh, Prem Singh, Gian Chand, and Sadh Ram under Section 179 of the Motor Vehicles Act were set aside. The conviction and sentence imposed on accused Kishori Lal under Section 42 of the Indian Forest Act and Section 179 of the Motor Vehicles Act and conviction and sentence imposed on other accused under Section 42 of the Indian Forest Act were maintained.
M. R. Verma, J.:- These two Revisions are directed against the judgment dated August 1,1998 passed by the learned Sessions Judge, Shimla, therefore, having arisen out of the same judgment of the learned Sessions Judge and the same questions of facts and law being involved therein these are disposed of by a single judgment.
2. Brief facts leading to the presentation of these Revision Petitions are that on 13.7.1991 at about 10 PM PW-6 Ravinder Kumar, Station House Officer, Theog accompanied by a few other police officials went to Fagu where he got the secret information that truck No. HPS-3268 lodged with illicit timber was to leave Theog to Shimla that night without any valid papers for transportation thereof. On receipt of this information a nakka was laid at Fagu. AT about 2 AM the truck appeared from Theog side. PW-6 Ravinder Kumar signalled the driver by lighting a torch to stop but the driver instead of stopping the truck accelerated its speed. The police party chased the truck in a Jeep. When the truck reached near Galu the driver further accellerated its speed whereupon PW-6 Ravinder Kumar fired a shot from his service revolver puncturing one of the rear tyre of the truck which led the truck to stop. The truck was found leaded with 71 scants of Deodar and 10 scants of kail. The driver of the truck was accused Kishori Lal. Accused Prem Singh and its Conductor. Kehar Singh, Sadh Ram and Gian Singh were the other occupants of the truck. On demand by the police the driver and other occupants of the truck could not produce any document regarding transportation of the timber. Even otherwise the timber could not be transported during night time even on a valid permit. In view of the provisions of HP. Forest Produce Transit (Land Routes) Rules, 1978. The timber and truck therefore, seized, accused were arrested and a case under Section 379 of the I.P.C. and Sections 41 and 42 of the Indian Forest Act and Section 179 of the Motor Vehciles Act was registered against the accused persons. The value of the Deodar!- scants was assessed at Rs.88,208.52 and that of the kail scants at Rs.14,21111. On submission of the charge-sheet by the police the accused-petitioners feame to be tried by the learned Additional Chief Judicial Magistrate, Theog who vide his judgment dated 29.10.1996 convicted them under Section 3791.P.C., Section 41 and 42 of the Indian Forest Act and Section 179 of the Motor Vehicle Act and sentenced them under Section 379 I.P.C. to rigorous imprisonment for two years and to pay fine of Rs.2,000/- each and in default of payment el fine to undergo further imprisonment for two months. They were further sentenced to imprisonment for six months and to pay fine of Rs.500/- each under Section 41 of the Indian Forest Act in default of payment of fine to undergo further imprisonment for 15 days each. A fine of Rs.100/- each was imposed on the accused under Section 179 of the Motor Vehicles Act and in default of payment of fine they were to undergo imprisonment of five days each. The sentence of imprisonment on all counts was made to run concurrently.
3. Feeling aggrieved accused Kehar Singh, Kishori Lal, Prem Singh and Gian Singh preferred criminal appeal No. 10-S/10 of 1996 and accused Sadh Ram preferred Criminal appeal No. 18-S/l 0 of 97/96 before the learned Sessions Judge, Shimla who by the impugned judgment partly accepted the appeals to the extent that conviction and sentence imposed on the accused under Section 379 of the Indian Penal Code and Section 42 of the Indian Forest Act and Section 179 of the Motor Vehicles Act were affirmed and the appeals to this extent were dismissed. Hence the present Revision petitions.
4. I have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent and have gone through the records.
5. The impungned conviction and sentence have been assailed by the learned Counsel for the accused on the following grounds: (a) Non-joining of independent
