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2024 Supreme(HP) 460
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
State of H.P. - Appellant
Versus
Pawan Kumar – Respondent
Cr. Appeal No. 28 of 2012
Decided on : 05.09.2024.
Advocate Appeared:
For the Appellant :Mr. Jitender Sharma, Additional Advocate General.
For the Respondent:Mr. S.C. Sharma, Senior Advocate, with Mr. Ravi Patial, Advocate.
The appellate court must tread carefully when reversing an acquittal and requires compelling evidence of error to do so, particularly when the initial trial court has established reasonable doubt.
Headnote:(A) Indian Forest Act - Sections 41 and 42 - Appeal against acquittal - Appellant contended that the acquittal was erroneous as evidence established transportation of forest produce without a valid permit - The learned Trial Court held that accused was carrying forest produce on behalf of another person who had a permit, leading to acquittal. (Paras 1, 6, 15 and 23)
(B) Criminal Law - Nature of offences - Offences under Sections 41 and 42 of the Indian Forest Act are bailable and non-cognizable, thus requiring magistrate's permission for police investigation, which was not obtained in this case, rendering proceedings void ab initio. (Paras 14, 16, 20)
(C) Presumption of Innocence - The presumption of innocence reinforces that the appellate court must exercise caution before reversing acquittals based on possible alternative views. (Para 12)
Facts of the case:
The accused was acquitted by the Trial Court for carrying Guchhi, purportedly based on evidence establishing a valid permit by another party for the transportation of the said goods. The police acted without a magistrate's order for investigation, raising questions about the legality of the charges against the accused. (Paras 2, 6, 20)
Findings of Court:
The judgment of acquittal was upheld, emphasizing the necessity of proper investigation protocols for non-cognizable offences and the prosecution's failure to substantiate its claims on Guchhi's classification as forest produce. (Paras 23, 26)
Issues: The main issues included the legality of the police investigation, the validity of the accused's defense regarding the permit, and the sufficiency of evidence to uphold the acquittal. (Paras 7, 9, 12)
Ratio Decidendi: The acquittal was justified as the prosecution's evidence failed to prove that the accused unlawfully transported forest produce, given the reasonable doubt raised by the defense about the permit, and the Trial Court's view was found reasonable and logical. (Paras 12, 23)
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. appellate jurisdiction regarding acquittal (Para 1 , 2) |
| 2. legal standards for examining prosecution evidence (Para 6 , 12 , 14 , 16 , 20) |
| 3. arguments regarding evidence interpretation (Para 7 , 9 , 10) |
| 4. expert evidence standards and requirements (Para 15 , 18 , 19) |
| 5. final dismissal of appeal against acquittal (Para 23 , 24 , 25) |
Rakesh Kainthla, J.
1. 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 of the commission of an offence punishable under Section 42 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).
2. 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 back-pack 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 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. PW-2/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.
3. 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.
4. 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 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.
5. 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 (DW-2) and Pawan Kumar (DW-3) were recorded in defence.
6. 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 deve
