Back
2026 Supreme(HP) 504
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RAKESH KAINTHLA, J.
Rajinder Kumar and Others – Appellants
Versus
State of H.P. – Respondent
Cr. Revision No. 388 of 2016
Decided On : 01-01-2026
For the Appellant : H.S. Rangra
For the Respondent: Lokender Kutlehria
Presumption under Forest Act Section 69 cannot convict under IPC Section 379 without proving theft from government forest. Substance identity requires expert proof with botanical name, not mere local identification. Pointing out loading place not admissible discovery under Evidence Act Section 27.
Headnote:(A) Indian Forest Act, 1927 - Sections 41, 42 and 69 - IPC - Section 379 r/w 34 - Forest produce illegally transported without permit - Presumption under Section 69 that forest produce belongs to government cannot be used to convict for theft under Section 379 IPC without proof that produce stolen from government forest and matches seized material - Mere failure to explain source insufficient - Conviction solely on presumption impermissible. (Paras 19, 20)
(B) Evidence Act, 1872 - Section 27 - Accused pointing out place of loading produce does not lead to discovery of fact where nothing recovered pursuant to statement - Such pointing out inadmissible, not connecting to material object or hidden fact unknown to police. (Paras 21, 22, 24)
(C) Evidence Act, 1872 - Section 45 - Expert opinion on forest produce identity requires special study, reasons, data including botanical name - Local/trade name identification by forest officials without chemical test, opening sacks or specifying species (e.g., Juglans Regia bark) insufficient - Prosecution fails to prove prohibited item under transit rules. (Paras 25-29)
(D) CrPC - Section 397 - Revisional jurisdiction limited - Not appellate power to reappreciate evidence or substitute views absent perversity, jurisdictional error, patent defect or gross miscarriage of justice - Concurrent findings not to be upset lightly. (Paras 13-18)
Facts of the case:
Police intercepted vehicle at night carrying 97 gunny sacks of alleged walnut bark without transit permit. Sacks weighed 1661 kg valued at Rs.2 lakhs. Accused in vehicle convicted by trial court under Section 379 IPC r/w 34 and Sections 41/42 Forest Act; appeal dismissed; revision filed.
Findings of Court:
Revision allowed; judgments set aside; accused acquitted; fine refunded.
Issues: Whether presumption under Section 69 Forest Act sustains IPC theft conviction; admissibility of accused's pointing out loading place; sufficiency of forest officials' identification without botanical proof; scope of revisional interference with concurrent findings.
Ratio Decidendi: Lower courts erred in relying on Section 69 presumption for IPC 379 conviction absent theft proof; pointing out not discovery under Section 27; substance identity unproved sans expert data on botanical name - material contradictions, no chemical test, sacks unopened - warranting acquittal in revision despite limited jurisdiction.
Result: Revision allowed.
| Table of Content |
|---|
| 1. police seized 97 sacks walnut bark without permit (Para 1 , 2) |
| 2. prosecution presented case; accused denied guilt (Para 3 , 4 , 5) |
| 3. lower courts convicted using witness presumption (Para 6 , 7) |
| 4. parties argue evidence contradictions revision scope (Para 8 , 9 , 10 , 11) |
| 5. revisional jurisdiction limits to patent legal errors (Para 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 6. forest act presumption invalid for ipc theft (Para 19 , 20) |
| 7. disclosure pointing place not section 27 discovery (Para 21 , 22 , 23 , 24) |
| 8. substance needs botanical name expert proof (Para 25 , 26 , 27 , 28 , 29) |
| 9. revision allowed accused acquitted charges set aside (Para 30 , 31 , 32 , 33) |
JUDGMENT :
RAKESH KAINTHLA, J.
1. The present revision is directed against the judgment dated 7.11.2016, passed by learned Additional Sessions Judge-II, Mandi, Camp at Jogindernagar, District Mandi, H.P. (learned Appellate Court), vide which the judgment of conviction dated 22.12.2012 and order of sentence dated 27.12.2012, passed by learned Judicial Magistrate First Class, Jogindernagar, District Mandi, H.P. (learned Trial Court) were upheld and the appeal filed by the petitioners (accused before the learned Trial Court) was dismissed. (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 revision are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Section 379 read with Section 34 of the Indian Penal Code (IPC) and Sections 41 and 42 of the Indian Forest Act. It was asserted that HC Dharam Chand (PW11), Beat Officer Hardev Singh (PW3), Forest Guard Rattan Chand (PW1), Forest Guard Ram Singh (not examined), Vikram Singh, Sham Lal (not examined) Constable Vijay Kumar (PW8) and Constable Amar Singh (PW7) were present at Jhatingri in the official vehicle bearing registration No.HP-33-6973 on the intervening night of 28/29.1.2007. A vehicle bearing registration No. HP-29- 2754 came to the spot at about 1.30 AM. The police signalled the driver to stop the vehicle. The driver identified himself as Rajinder Kumar. Three other persons were sitting in the truck besides the driver, who identified themselves as Ram Singh, Kamal Kishore and Dharminder Singh. Gunny sacks were loaded in the truck. These were checked and found to contain Dandasa (walnut bark). A permit for transporting the Dandasa (walnut bark) was demanded, but no permit was produced. The police counted the gunny sacks and found them to be 97. The police seized the gunny sacks vide memo (Ex.PW1/A). Dharam Chand prepared the rukka (Ex.PW1/A) and sent it to the Police Station, where FIR (Ex.PW11/B) was registered. Dharam Chand investigated the matter. He prepared the site plan (Ex.PW11/C). Dandasa (walnut bark) could not be weighed on the spot for want of a weighing machine, and the gunny sacks were taken to the Range Office, Urla Range, where they were weighed. Their weight was found to be 1661 kilograms. Detail (Ex.PW2/A) was prepared. 96 gunny sacks were handed over to Hardev on Sapurdari vide memo (Ex.PW1/B). The total value of Dandasa (walnut bark) was found to be Rs.2.00 lacs. A certificate (Ex.PW11/D) was prepared. The accused showed the place from where the walnut bark was loaded into the vehicle. Memo (Ex.PW7/A) and the Site plan (Ex.PW11/E) were prepared. The photographs of the proceedings (Ex.A1 to Ex.A6), whose negatives are Ex.A7 to A12, were taken. Statements of witnesses were recorded as per their version, and after the completion of the investigation, a challan was prepared and presented before the Court.
3. The learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, they were charged with the commission of offences punishable under Section 379 read with Section 34 of the IPC and Sections 41 and 42 of the Indian Forest Act, to which they p
