Kathia and Others vs State of Orissa

Raghubir Dash, J.—Both the Criminal Appeals are in challenge of the judgment passed by the learned Additional Sessions Judge, Jajpur in S.T. No. 230/52 of 1989 corresponding to G.R. Case No. 338 of 1981 from the file of S.D.J.M., Jajpur whereunder Appellant in each of the appeals has been convicted for commission of offences under Sections 307/34 of I.P.C. and under Rule 16 of Orissa Timber and other Forest Produce Rules, 1967 read with Section 46(2) of the Orissa Forest Act and sentenced to undergo R.I. for 3 years with fine of Rs. 7,000/- for the offence under Section 307/34 of I.P.C. but no separate sentence has been passed for the other offence punishable under the Orissa Forest Act.

On 27.3.1981 F.I.R. was lodged at 3.40 P.M. in Sukinda Police Station by the then Assistant Conservator of Forest, Duburi alleging that on 26.3.1981 night getting information that smuggled timber was being transported by one truck bearing No. OR-U-5769 he and his staff went to Duburi Chhak at 2.00 A.M., waited there for the arrival of the truck and sometime thereafter, when the truck was found coming from Sukinda side, they signalled the truck to stop but the truck sped away heading towards Chandikhol. The forest officials chased the truck by their official jeep. On their way, in the process of such chasing, they noticed that the truck was in stationary condition near Pankapal. The forest jeep stopped behind the truck maintaining some distance. Seeing arrival of the jeep both the accused persons got down the truck. They were armed with bow and arrow. They sent arrows towards the forest officials. One wooden-tipped arrow struck P.N. Padhi, Forester and one arrow tipped with pointed iron plate, pierced into the left rear wheel of the jeep as a result of which the wheel got flat. Suddenly, the truck moved backward in high speed in an attempt to give a dash to the jeep. The jeep driver suddenly swerved the jeep to the extreme right side of the road as a result of which the A.C.F., who was sitting on the front seat of the jeep, got thrown out of the jeep, fell on the ground and sustained minor injuries on his person. The truck moved forward and sped away from the spot. After replacing the flat wheel the forest officials moved on in search of the truck but could not trace it out, despite extensive search at different places. Thereafter, F.I.R. was lodged.

The police registered the case under Section 379/307/34 of I.P.C. and Section 37 of Orissa Forest Act against both the Appellants and some unknown persons including the driver of the truck. In course of investigation the truck was seized and the Appellants and the driver of the truck were arrested. While in police custody, Appellant Nalini Kumar disclosed that the smuggled timber had been dropped in the water of a tank of village Gadamadhupur. On such disclosure, the logs were recovered from tank water and seized. On completion of investigation charge-sheet was submitted against five persons showing two of them as absconders. The Appellants and the driver of the truck faced the trial. While the driver has been acquitted the Appellants have been convicted and sentenced as indicated earlier.

The impugned judgment is challenged on different grounds. It is contended that the testimony of the prosecution witnesses suffers from a lot of discrepancies on material points which the learned court below did not give due importance, that the testimony on record falls far short of making out a case under Section 307 of I.P.C., that the conviction of the Appellants under Rule 16 of the Orissa Timber and other Forest Produce Rules, 1967 is illegal inasmuch as the said Rules stood repealed at the relevant time and also for the reason that no charge was framed against the Appellants under the said Rules. It is further contended that the F.I.R. is an outcome of grudge and revengeful attitude. It is contended that the forest officials, at whose instance the case has been initiated, had personal grudge on the Appellants for which they have tried to cook up a carefully crafted story which looks real but, in reality, is totally false and concocted.

Learned counsel for the State, however, supports the order of conviction as well as the sentence contending that the official witnesses who have no personal grudge on the Appellants have convincingly deposed on the incident and there is no reasonable ground for disbelieving their testimony.

Prosecution has examined nine witnesses. P.W. 1 is the informant who at the relevant time was the Assistant Conservator of Forest, Duburi under Keonjhar Forest Division. P.W. 2 is the owner of the truck bearing No. ORU 5769 by which the timber in question was being allegedly transported. P.W. 3 is the Doctor who examined the injured persons on Police requisition. P.W. 4 was then attached to Chandikhol Outpost as an A.S.I. of Police. He has seized the truck bearing No. ORU 5769 from near a garage of one Kailash Sahu. P.W. 6 was the than Forester, Ransol and P.W. 7 was the than Forester, Kansa, both under Sukinda Forest Range. They had accompanied P.W. 1 to detain the truck in order to prevent illegal transportation of timber. P.Ws. 5 and 8 are the investigating officers. P.W. 9 is another Police Officer who simply submitted the charge-sheet.

P.Ws. 1, 6 and 7 are eye-witnesses. They are all forest officials. There is nothing on record showing their personal ill-feeling towards the Appellants. Therefore, the plea that because of personal grudge against the Appellants a false case has been foisted is not acceptable. The testimony of these official witnesses needs careful scrutiny to test their credibility, besides finding out whether the offences the Appellants have been charge for have been made out or not. Before the learned trial court, the defence had pointed out several contradictions appearing in the testimony of the eye-witnesses but the learned court below did not find them sufficient enough to disbelieve the testimony of the eye-witnesses. It has opined that such inconsistency in their testimony is as a result of their delayed examination in the court. It is true, nine years after the alleged incident the witnesses deposed in the court. However, arguing before this Court the learned counsels for the Appellants have submitted that the contradictions being on material points those cannot be brushed aside merely on the ground that the witnesses had deposed in the court after lapse of a long period. They have further submitted that the allegation that the accused persons attempted to kill any members of the raiding party is a super-imposed as well as embroidered version with a view to see the Appellants arrested and kept in jail for some time which is an act of frustration for having failed to seize logs being illegally transported by some unidentified persons. All such evidences and the attending circumstances about which the learned counsels have made mention while making such argument are dealt with hereunder.

According to the prosecution, the forest officials noticed one truck coming from Sukinda side in the occurrence night at about 2.00 A.M. They gave signal for the truck to stop but it did not stop. It moved on along the express Highway towards Chandikhol. The forest officials in their jeep chased the truck. On their way, near Pankapal-Dangadi Crossing, they saw that the truck was stationary. The incident of alleged attempt to take the life of the forest officials allegedly took place at this place on the Highway. It is alleged that both the Appellants got down the truck being armed with bows and arrows and shot arrows towards the forest officials and in that process one wooden - tipped arrow hit on the right leg of P.W. 7 and another arrow pierced into the left rear wheel of the jeep for which the wheel got flatted. Thereafter, all on a sudden the truck started moving backward with great speed in an attempt to give a dash to the jeep. But the jeep driver moved the vehicle to the extreme right side of the road and, in that process it ran over a heap of stones. There was a jerk and the informant was thrown out of the jeep due to the impact of the jerk. The evidence on this part of the prosecution story needs to be scrutinized with great care and caution to find out whether the official witness are to be relied on or not.

The inconsistencies noticed in the testimony of official witnesses (P.Ws. 1, 6 and 7) are as follows. P.W. 1 says that while the forest officials were moving in their official jeep to overtake the truck, the truck was found in stationary condition near Pankapal and, therefore, they stopped the jeep about 60-70 yards behind the truck. But, P.W. 6 says that at Pankapal the jeep overtook the truck and only after such overtaking the truck became stationary. P.W. 7 says that at Pankapal the jeep overtook the truck, stopped when it was about one furlong ahead of the truck and thereafter he noticed that the truck also stopped. He then proceeds to say that sometime thereafter the truck moved forward and then stopped at a distance of 20 to 25 meter ahead of the jeep. Thus, all the three witnesses stand contradicted by one another. On this part of the occurrence, P.Ws. 1 and 7 say that the truck attempted to kill them by crushing the jeep under the wheels of the truck. But, here also both contradict on material particulars. While P.W. 1 says that the truck came in reverse gear to give a dash to the jeep, P.W. 7 says that the truck moved forward with a speed to crush the jeep and when the jeep driver foiled that attempt by moving the jeep to its extreme right side of the road, the truck went ahead of the jeep and then stopped. P.W. 6, on his part, has maintained silence on this part of the prosecution case. Also on the alleged shooting of arrows these three witnesses are not consistent. P.W. 1 says that first the arrows were shot at them and thereafter the truck attempted to give a dash to the jeep. But, P.W. 7 says that first the truck attempted to hit the jeep and thereafter the arrow shooting took place. P.W. 7 also speaks about the shooting of arrows. According to P.Ws. 1 and 7, Appellant Nalini only shot arrows towards the jeep. But according to P.W. 6, both the Appellants sent arrows towards the jeep. P.Ws. 1 and 7 say that only two arrows were shot at. But P.W. 6 says that about 10 arrows were sent towards them. However, all of them say that the arrow with wooden tip hit P.Ws. 7 causing injury and another arrow, tipped with sharp and pointed iron plate, punctured one of the wheels of the jeep.

The inconsistencies noted above cannot be burshed aside saying that it was but natural due to loss of memory on account of passage of a long span of time. The charge under Section 307, I.P.C., which has been read over to the Appellants during trial, states that all the three accused persons in prosecution of their common intention to prevent the forest officials from making seizure of the logs, shot arrows to the forester (P.W. 7) to kill him and moved the truck in reverse gear to crush the jeep in an attempt to kill the forest officials. In view of such charges, the prosecution ought to have adduced consistent and cogent evidence to establish the charge beyond reasonable doubt. The witnesses are not consistent on the manner in which such attempt was taken. This kind of unsatisfactory evidence on the charge under Section 307, I.P.C. has to be appreciated with due consideration of some other attending circumstances.

It is rightly submitted by the learned counsel for the Appellants that the prosecution has not shown as to why the truck should have stopped at Pankapal when the truck, loaded with timber, was being chased by the forest officials. It is not found from the evidence on record that the truck had any mechanical problem. So it cannot be said that due to mechanical snag it stopped at Pankapal. It is also not shown that there was any check gate near that spot or the truck was stopped by any public authority or any other person(s) at Pankapal. It is also not on record that the truck had halted there for the purpose of taking rest or refreshment. The truck could have escaped the notice of the forest officials had it not stopped at Pankapal. Therefore, the story narrated in the F.I.R. with which P.W. 1 is consistent while deposing in Court, becomes highly doubtful. This doubt is further strengthened by the contradictory statements made by the eyewitnesses on the manner the accused persons allegedly attempted to kill the forest officials.

The prosecution evidence on the identification of the culprits also appears to be somewhat doubtful. When P.W. 1 says that search light focused on the spot and under that focus the culprits could be identified, P.W. 6 and 7 do not mention about the use of any search light. They say that with the help of the jeep-light they could identify the culprits. Admittedly, the incident took place in the dead hour of the night. P.Ws. 6 and 7 say that the accused persons shot arrows standing at a distance of 50-60 feet from the jeep whereas P.W. 1 says that the jeep was at a distance of 60 yards from the truck when the Appellant Nalini got down the truck and sent arrows towards the jeep. Under such circumstances, correct identification of the culprits is almost impossible. It is also difficult to believe, in the absence of clarifying evidence, that the arrow that was shot at a distance of 50-60 feet from the front side of the jeep could pierced into one of the rear wheels of the vehicle and punctured it.

It is also rightly submitted by the learned counsel for the Appellants that since the occurrence took place at Pankapal and there is a Out Post at Chandikhol, which is nearest to the spot, the forest officials could have lodged the report at the Out Post instead of waiting for the next day to lodge the report at Sukinda Police Station, moreso when the spot at Pankapal does not come within the jurisdiction of Sukinda Police Station.

Having considered the nature and quality of evidence available on record and on finding that the official witnesses are not safe to be relied on in so far as the allegation of commission of the offence under Section 307, I.P.C. is concerned, the order of conviction under Section 307/34, I.P.C. is not sustainable.

As regards the charge under Section 46(2) of the Orissa Forest Act, read with Section 16 of the Orissa Timber and other Forest Produce Rules, 1967, it is argued that the charge itself is defective causing serious prejudice to the Appellants for which the order of conviction and sentence is liable to be set aside. In addition to that it is also submitted that there is no iota of evidence making out any offence under Section 46(2) of the Orissa Forest Act. It is further pointed out that the Rules of 1967, which is referred to in the charge, had stood repealed under rule 22 of the Orissa Timber and other Forest Produce Transit Rules, 1980 which came into force w.e.f. 21.4.1980 whereas the alleged occurrence took place on 27.3.1981. This submission is also quite tenable. Since the identity of the Appellants is also found to be not proved beyond reasonable doubt it is not possible to say that these Appellants transported the seized timber by the truck as alleged. There is evidence that during the investigation Appellant Nalini disclosed before the I.O. (P.W. 5) that the logs were kept concealed inside the tank water of Village- Gadamadhupur. P.W. 5 says that on the basis of such disclosure he has seized 10 logs of different size after making recovery from the tank water. There is no report that the seized logs were kept in the tank water in such a manner that no one was in a position to see the same lying inside the water. If it was visible from outside then it cannot be presumed that only Nalini had the knowledge about such concealment. Therefore, it cannot be said to be a case of disclosure on the basis of the statement made by the Appellant Nalini. Under such circumstances, there is no evidence to prove the charge framed under Section 46(2) of the Orissa Forest Act read with Section 21 of the Orissa Timber and other Forest Produce Transit Rules, 1980 and, consequently, the order of conviction thereunder is not sustainable. Thus, the charge under Section 46(2) of the Orissa Forest Act is not sustainable.

In view of the discussion made above, the Appellants are entitled to benefit of the doubt. The order of conviction and sentence impugned herein is liable to be set aside. Accordingly, both the Appeals are allowed. The impugned judgment is set aside. Appellants in both the Appeals are found not guilty and they are acquitted of all the charges. They be set at liberty at once. Their bail bonds stand discharged.

The seized logs which are directed to be given to the custody of the Range Officer shall be disposed of in accordance with the rules governing disposal of such forest produce.