JUDGMENT :

SURINDER SINGH, J.

1. The respondents were tried and acquitted by the learned trial court, in Criminal Case No. 155/2 of 1999, on 24.8.2000, for the offences punishable under Sections 379 and 411 of the Indian Penal Code read with Sections 41 and 42 of the Indian Forest Act.

2. In short, the prosecution case is that on 18.5.1999, PW-1 Forest Guard Santosh Kumar and PW-2 Swaran Singh Forest Nursery Incharge were on patrolling duty in the D.P.F. Rakh Rampur and found that some trees were felled in the said forest. During the night at about 8 p.m. they put a ‘naqa’ in the said jungle and found the respondents cutting two khair trees. They were apprehended and were produced before the Block Officer and informed the police in writing Ex.P1, on the basis of which FIR was lodged on 19.5.1999 at 10 a.m.

3. Police arrested the respondents on the same day. They are alleged to have made joint disclosure statement with respect to felling of trees and concealment of instruments used for felling of trees, pursuant to which eight logs of Khair wood were recovered vide memo Ex.P5 in the presence of Swaran Singh and Bachnu Ram. The accused are alleged to have pinpointed the place of alleged occurrence. The police obtained the demarcation from the Kanungo. He submitted his report Ex.P7. Police prepared the site plan Ex.P8. Some pieces were allegedly sold by the other accused to Raj Kumar respondent which were recovered. After recording the statements of the witnesses and on completion of the investigation, challan was presented in the court for the trial of the respondents.

4. Since the accused Raj Kumar was alleged to have found in possession of the theft khair wood, as such, he was charge-sheeted under Section 411 of the Indian Penal Code and other respondents were charge-sheeted for the offences under Sections 379 of the Indian Penal Code read with Section 41 and 42 of the Indian Forest Act. The respondents pleaded not guilty and claimed trial.

5. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 of the Code of Criminal Procedure. After hearing the parties and on going through the record, at the end of the trial, the respondents were acquitted, on the grounds that the prosecution failed to prove its transportation and also the fact of felling of trees from the Government forest. The joint disclosure statement of the accused persons recorded under Section 27 of the Indian Evidence Act was not admissible in evidence and further that the recovery pursuant to that was a farce and further that the articles alleged to have concealed was an open place, thus the evidence was to be discarded and the demarcation was not done by the Kanungo in accordance with the requirement of law as held in State vs. Lachmmi Nand, 1992 (2) SLC 307 and further the statements of the witnesses were contradictory and did not inspire confidence.

6. Shri J.S. Guleria, learned Law Officer has argued that the learned trial court has mis-appreciated the evidence on record. Respondents were caught red handed, thus there was no escape from their liability for the offence charged.

7. Contra, Shri Raman Sethi, learned counsel for the respondents has vehemently argued that there are material contradictions in the statements of PWs. 1 and 2 and further that when the respondents were alleged to have been caught red handed while felling the trees then what was the necessity to get the place identified by them by the police and on the top of it the instruments used for felling of trees and the logs were known to the witnesses (PWs. 1 and 2) then what was the need for recording their disclosure statement and then effecting the recovery as alleged. All this exercise appears to be to implicate them either on the basis of suspicion or for some other reason best known to the police. Further the logs recovered were not connected with the stumps of the trees alleged to have been felled. The instruments which were used for fe