Om Parkash vs State of Himachal Pradesh

Dev Darshan Sud, J.—The petitioner has been convicted for offences under Sections 41 and 42 of the Indian Forest Act. The case of the prosecution in brief was that on 7.5.1997 at about 3.00 A.M. at Barmana, S.I. Karam Chand, PW 6, Head Constable Vijay Pal, PW 5, HHG Niku Ram, HHG Khem Raj, PW 2 and HHG Suresh Kumar and Inder Kumar were on patrol duty and had organized a Nakka Bandi. At that time one Maruti Van bearing No. H.P-02-0281 driven by the petitioner herein, came towards the Nakka and on seeing the police party, reversed the vehicle and drove in the reverse gear. He was later on apprehended at 1 Whether Reporters of Local Papers may be allowed to see the judgment? a distance of 2-3 Kilometers from the spot. When the van was taken into possession, eight slippers of Deodar measuring 6''x10"x5 1/2" were recovered, for which no explanation was given by the petitioner herein. He was charged for offences under Sections 379 of the Indian Penal Code and Sections 41 and 42 of the Indian Forest Act. He was convicted for offences only under the Forest Act and sentenced to undergo simple imprisonment for a period of six months and fine of Rs. 500/-.

Appeal preferred by the petitioner has been dismissed by the learned Sessions Judge. The petitioner is now in revision.

I have heard learned Counsel appearing for the petitioner and learned Additional Advocate General for the Respondent. Learned Counsel appearing for the petitioner submits that there are material contradictions in the statements of Head Constable Vijay Pal, PW 5 and Sub Inspector Karam Chand PW 6. He also submits that PW 2 Sh. Khem Raj has also resiled from his statement and in these circumstances; it was not legally proved that the timber infact had been seized from the Maruti Van being driven by the petitioner. Learned Counsel appearing for the petitioner refers to the evidence of PW 3 Sh. Lekh Ram and his mechanical examination report Ex. PW 3/A to urge that since the reverse gear of the vehicle was defective, it was impossible to drive for a distance of about 2/3 Kilometers in the reverse gear, which under any circumstances was not possible.

I have carefully perused the evidence of both PW 5 Sh. Vijay Pal and PW 6 Sub Inspector Karam Chand. I do not find from their testimonies that the contradictions are of such a nature which renders the prosecution version completely unreliable. PW 3 Sh. Lekh Ram has been declared hostile, but his statement could not belie the statements of PW 5 H.C. Vijay Pal and PW 6 Sub Inspector Karam Chand. On the statement of PW 3 Sh. Lekh Ram, all that I need to say that his report only found this gear of the vehicle defective, but he did not say that the vehicle can not be driven in this gear. In these circumstances, even if considering the evidence of this witness, I do not find that the Courts below have erred in holding the petitioner for guilty of offences under Sections 41 and 42 of the Indian Forest Act.

Turning to the quantum of sentence, Section 42 of the Indian Forest Act provides maximum sentence of six months and fine of Rs. 500/-. While this case was considered for imposing of sentence, it was urged that the convict was first offender and belong from an extremely poor family and earns his livelihood only by driving. The learned trial Court, despite this plea, sentenced the petitioner to undergo simple imprisonment for six months.

I find that the petitioner was not the registered owner of the vehicle. Obviously he was being used as a tool by some body else. That person had neither been apprehended by the police nor brought to justice. The vehicle has been seized and handed over in spurdari to PW 1 Sh. Chamel Singh. In these circumstances, I hold that it would be in the interest of justice in case the petitioner is only sentenced to pay fine of Rs. 500/-. The sentence of imprisonment is set aside. Since the van has been seized by the police, it shall be dealt with in accordance with law.