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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
KULDIP SINGH, J
Tara Chand — Appellant
Versus
State Of Himachal Pradesh — Respondent
Criminal Revision No. 25 of 2005
Decided on : 05-09-2011
Indian Penal Code - Theft - Section 447, 379 and Indian Forest Act - Section 33
Fact of the Case:
The accused were charged with offences under Sections 447, 379 of the Indian Penal Code and Section 33 of the Indian Forest Act for illicitly felling trees from a government forest. The lower courts convicted and sentenced the accused under Section 379 but acquitted them under Section 447 and Section 33. The accused filed a revision challenging the conviction and sentence.
Finding of the Court:
The court found that the prosecution failed to establish that the accused had the intention to dishonestly take the trees out of the possession of the government, a key element for theft under Section 378 of the Indian Penal Code. The court also noted discrepancies in the prosecution's evidence and concluded that the conviction under Section 379 was not sustainable, leading to the acquittal of the accused.
Issues: The key issue was whether the accused had committed theft under Section 379 of the Indian Penal Code by illicitly felling trees from a government forest.
Ratio Decidendi: The court emphasized that for theft to be established under Section 378 of the Indian Penal Code, the prosecution must prove the accused's intention to dishonestly take the property out of the possession of the owner. The court also highlighted the importance of evidence consistency and the need to establish all elements of the offence beyond reasonable doubt.
Final Decision: The court set aside the conviction and sentence of the accused under Section 379 of the Indian Penal Code, acquitted the accused of the charge, and ordered the refund of any fine amount deposited by the accused.
JUDGMENT :
Kuldip Singh, J
1. Tara Chand, Budh Ram and Lok Bahadur were prosecuted for offences punishable under Sections 447, 379 Indian Penal Code and Section 33 of the Indian Forest Act, Budh Ram died during trial. The learned Sub Divisional Judicial Magistrate, Rampur Bushahr in case No. 12-2 of 2000 acquitted Tara Chand and Lok Bahadur for offence punishable u/s 447 Indian Penal Code and Section 33 of the Indian Forest Act but convicted them u/s 379 Indian Penal Code on 25.3.2004. Tara Chand has been sentenced to undergo simple 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes imprisonment for six months and fine of Rs. 1,000/-. Lok Bahadur was sentenced to undergo simple imprisonment for three months and fine of Rs. 500/-. In default of payment of fine, both of them were sentenced to undergo further imprisonment. Tara Chand and Lok Bahadur filed Criminal Appeal No. 3 of 2004 which so far Lok Bahadur is concerned has been allowed but appeal of Tara Chand was dismissed on 22.1.2005 by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, hence revision by Tara Chand.
2. The facts in brief are that Budh Ram since deceased at the relevant time was working as servant with one Duni Chand of village Salech. Lok Bahadur was working as domestic servant with Tara Chand. On 23.1.1999 all of them illicitly felled two kail trees, one of IIA and another of II-B category from DPF C-72 notified government forest and converted them into logs. PW-3 Man Mohan Singh had seen them committing the theft. He tried to prevent them from cutting the trees but accused abused him and threatened to give him beatings. PW-3 reported the matter to his father PW-2 Beli Ram, complainant, who also visited the spot and found two kail trees illicitly felled from government forest.
3. The complainant reported the matter to the forest officials in writing. On receipt of complaint, PW-1 Devi Saran, Beat Guard was directed to verify the matter. On 28.1.1999 PW-1 Devi Saran accompanied by Gram Panchayat Member Dula Ram visited the spot and found the complaint correct. On 30.1.1999 PW-1 Devi Saran reported the matter to police at Police Post, Nankhari and thereafter FIR under Sections 447, 379 Indian Penal Code and Section 33 of the Indian Forest Act was registered at Police Station, Rampur Bushahr.
4. On completion of investigation, challan was submitted and the accused were charged for commission of offence under Sections 447, 379 Indian Penal Code and Section 33 of the Indian Forest Act. The accused pleaded not guilty. The prosecution has examined eight witnesses in order to prove its case. The statements of accused Tara Chand and Lok Bahadur were recorded u/s 313 Code of Criminal Procedure They denied the prosecution case and pleaded their innocence. They led no evidence in defence. On conclusion of trial, learned Sub Divisional Judicial Magistrate, Rampur Bushahr, convicted Tara Chand and Lok Bahadur u/s 379 Indian Penal Code but acquitted them u/s 447 Indian Penal Code and Section 33 of the Indian Forest Act. In appeal, the learned Sessions Judge upheld the conviction and sentence of Tara Chand but allowed the appeal of Lok Bahadur. The learned Sessions Judge has held that learned Sub Divisional Judicial Magistrate has erred in acquitting Tara Chand u/s 447 Indian Penal Code but has also held that appeal against acquittal of Tara Chand u/s 447 is not maintainable before him. In revision, legality of conviction and sentence of Tara Chand u/s 379 Indian Penal Code is left for consideration.
5. I have heard Mr. G.D.Verma, Senior Advocate appearing on behalf of theAppellant and Mr. J.S.Rana, Assistant Advocate General for the State and have also gone through the record. It has been submitted on behalf of the Petitioner that the Courts below have erred in convicting and sentencing the Petitioner u/s 379 Indian Penal Code. The Courts below have misconstrued, misinterpreted the evidence and the legal position in convicting an
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