Salim and Others and Fatehdeen vs State of Haryana

A.N. Jindal, J.—This judgment of mine shall dispose of two connected appeal Nos. 230 and 245-SB of 2000, having arisen out of the judgment dated 28.2.2000 passed by the learned Additional Sessions Judge, Jagadhari convicting the accused-appellant Fatehdeen under Sections 394/332/341 IPC and accused-appellants Salim, Kamrudeen, Aagar and Asra u/s 411 of the IPC. Consequently, they were sentenced as under:

Fatehdeen

Under Section 394 IPC : Rigorous imprisonment for five years and to pay fine of Rs.1000/-.

Under Section 332 IPC : Rigorous imprisonment for one year and to pay fine of Rs.500/-.

Under Section 341 IPC : Rigorous imprisonment for six months and to pay fine of Rs.100/-.

Salim, Kamrudeen, Asgar & Asra

Under Section 411 IPC : Rigorous imprisonment for two years and to pay fine of Rs.1000/- each.

The case has been registered on the statement of Som Nath complainant (herein referred as ''the complainant''), Forest Guard, Bahadurpur, who disclosed that on 12.4.1998 at about 11.00 p.m. when he was on patrolling duty for the security of Khair forest in the area of Bahadurpur, then he saw with the help of torch that 12 persons cutting Khair trees with the help of a Saw near Kaniyawali dandi. Out of them he could recognize Fatehdeen. When asked, as to why they were cutting the trees belonging to the Government, then all of them started beating and gave him kick and fist blows, tore out his uniform and tied him with the help of cloth. After cutting six khair tress, they untied him and threatened him to be killed if reported the matter to the police, and then left the place. On verification, he came to know that the accused had taken 20 quintals of Khair wood worth Rs. 50,000/-. He did not go to the police station during night out of fear, however, in the morning he went to the Forest Office at Sadhaura and disclosed the occurrence to the rangers, however, when he was proceeding to the police station to lodge the report, the police party met him on the way, before whom he made the statement, on the basis of which FIR was registered. Besides Fatehdeen, the other accused were nominated having also committed the crime. On completion of the investigation, challan against them was presented in the court.

On finding a prima facie case, they were charged u/s 395/332/341 IPC, to which they pleaded not guilty and opted to contest.

In order to substantiate the charges, the prosecution examined Dr. Sanjiv (PW1), Jagmal Singh (PW2), Ashok Kumar (PW3), Raj Kishan Forest Guard (PW4), Yash Pal Gupta Forest Ranger Officer (PW5), Jagdish Singh (PW6), ASI Ishwar Dass (PW7), Som Nath complainant (PW8) and SI/SHO Mohinder Singh (PW9).

When examined u/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case.

The trial ended in conviction.

Arguments heard. Record perused.

In order to establish the offence against the accused, the prosecution examined Som Nath complainant (PW8), who was caused injuries by the accused and he is a witness in whose presence the accused had cut the Khair trees and took the same away.

As regards the question of identification, it is observed that the complainant (PW8) has stated that he knew Fatehdeen since earlier. Fatehdeen appears to be an habitual offender. The record reveals that there were other cases against Fatehdeen regarding theft of the forest wood, therefore, obviously, the witness must be knowing him as he had earlier been in the habit of stealing the forest wood. Even otherwise, Fatehdeen also did not ask for test identification parade. At the same time, the witness has identified the accused in the court also. The testimony of the complainant stands corroborated by Dr. Sanjiv (PW1) who proved the MLR Ex.PA relating to the complainant which indicates that the later was assaulted by the accused . No meaningful cross examination was conducted upon him so as to shatter his testimony. Regarding identification, the complainant has further stated that after the arrest of the accused, the Investigating Officer had summoned him at the police station and he had identified the accused there in the police station also.

There is no inordinate delay in lodging the FIR. The occurrence took place during the night of 12.4.1998. He did not go to the police station during night out of fear, however, he reported the matter to his superior officer i.e. Yash Pal Gupta, Forest Ranger Officer in the morning who prepared the report which was forwarded on 13.4.1998 at 8.40 a.m. and the FIR was also registered on the same day at 8.40 p.m. The delay, if any, stands duly explained.

There is no denying a fact that the injured was a public servant and it is established that the accused deterred him from discharging his official duty after tying and causing him simple injuries and thereafter, they stole away the Khair wood. Though, sufficient evidence has not come forth to prove as to who were the other four accused, yet it proved by definiite evidence that the accused committed robbery by stealing the forest wood. However, the recovery of the Khair wood from the other four accused proves that they knowing fully well that the Khair wood is stolen property received the same. The prosecution in order to prove the offence u/s 411 IPC against the accused has proved the statement Ex.PG to Ex.PJ made by the four accused u/s 27 of the Evidence Act. These statements stand proved by Ishwar Dass (PW7), Som Nath complainant (PW8) and Mohinder Singh (PW10). Ishwar Dass (PW7) has depicted categorically that all the accused made disclosure statements Ex.PG to Ex.PJ in his presence and in pursuance to those statements, Khair wood was recovered from them. The separate recovery memos Ex.PK to Ex.PO were prepared with regard to the recovery of the said Khair wood which were signed by the complainant and attested by Mohinder Singh PW9). Mohinder Singh (PW9) has identified the Khair wood. The aforesaid witnesses were also cross examined at length but nothing material could be elicited from their statements which may be sufficient to create a dent in the prosecution case. The learned Counsel has tried to point out some minor variations in the statements of the witnesses, but having gone deep into the statements, I find that no such material contradictions could be detected which may be sufficient to throw out the testimonies of these witnesses altogether. Though, the prosecution has not been able to establish the theft, robbery or dacoity against the accused other than Fatehdeen, yet, since the recovery of Khair wood was effected from them which belonged to the forest department, therefore, they were rightly held guilty of the offence u/s 411 IPC.

Faced with the situation, learned Counsel for the appellants have sought indulgence of this Court to seek leniency on the quantum of sentence.

Having pondered over the argument, keeping in view the fact that the occurrence took place 12 years back, therefore, the appeal filed by Fatehdeen is dismissed with the modification in the sentence which is reduced to three years u/s 394 IPC, however, the sentence awarded to him for the other offences so also the sentence of fine shall remain intact. However, the appeal filed by the other accused Salim, Kamdrudeen, Asgar and Asra stands dismissed.