Madan Singh vs State Of H.P on 1 May, 2025

Himachal Pradesh High Court

Madan Singh vs State Of H.P on 1 May, 2025

( 2025:HHC:11930 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 11 of 2012
Reserved on: 12.3.2025
Date of Decision: 01.5.2025.

    Madan Singh                                                                   ...Petitioner

                                          Versus

    State of H.P.                                                                ...Respondent


    Coram

Hon’ble Mr. Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1 No.

    For the petitioner                :         Mr. Ajay Kochhar, Senior Advocate,
                                                with    Mr.   Anubhav     Chopra,
                                                Advocate.
    For the Respondent                :         Mr. Ajeet Sharma, Deputy Advocate
                                                General.


    Rakesh Kainthla, Judge

The present revision is directed against the judgment

dated 12.10.2011, passed by learned Sessions Judge, Shimla,

District Shimla, H.P. (learned Appellate Court), vide which the

judgment of conviction dated 26.5.2009 and order of sentence

dated 3.6.2009, passed by learned Judicial Magistrate First Class,

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Theog, District Shimla, H.P. (learned Trial Court) were upheld.

(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 against the

accused before learned Trial Court for the commission of

offences punishable under Section 379 of the Indian Penal Code

(in short ‘IPC‘) and Sections 41 and 42 of the Indian Forest Act

(in short ‘the Forest Act‘). It was asserted that HC Subhash

Kumar (PW11), Constable Sunil Kumar (PW6) and Constable

Sunil Kumar (PW10) were present near Harog on 11.11.2016 at

about 12.30 AM. They signalled a Tempo Trax, bearing

registration No. HP-09A-1175 to stop. The driver identified

himself as Madan Singh (the accused). The police found logs of

deodar loaded in the Trax. The police called Pradhan Amar Singh

(PW7) and searched the vehicle in his presence. 20 logs of

different sizes were found. The accused could not produce any

permit to transport the timber. The police seized the timber on

the spot along with the vehicle and the documents vide memo

(Ex.PW6/A). HC Subhash Kumar prepared a rukka (Ex.PW11/A)

and sent it to the Police Station, where FIR (Ex.PW9/A) was
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registered. HC Subhash Kumar conducted the investigation on

the spot. He prepared a site plan (Ex.PW11/B). B.O. Sant Ram

(PW1) also reached the spot. The vehicle was brought to the

Police Station, where timber was measured. The detail of the

measurement (Ex.PW1/A) was prepared. The accused led the

police to the place from where the trees were cut. 12 trees were

found to have been recently cut. Sant Ram (PW1) identified the

place as part of U-138 Jahoo Beat. The site plan (Ex.PW11/C) was

prepared. The timber was handed over on Sapurdari to Kishori

Lal (PW4) vide memo (Ex.PW3/A). The Forest Department put

the seizure hammer on the seized timber. Its impression was

obtained on the memo (Ex.P1/A). The statements of remaining

witnesses were recorded as per their version, and after

completion of the investigation, a challan was prepared and

presented before the Court.

3. Learned Trial Court charged the accused with the

commission of offences punishable under Section 379 of IPC and

Section 42 of the Forest Act, to which he pleaded not guilty and

claimed to be tried.

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4. The prosecution examined 11 witnesses to prove its

case. Sant Ram (PW1) reached the spot after he was informed of

the seizure of the timber. Mahinder Singh (PW2) is the owner of

the vehicle. Surjit Singh (PW3) is the witness to Sapurdari.

Kishori Lal (PW4) was posted as Forest Guard to whom the

timber was handed over on Sapurdari. Meena (PW5) proved the

entry in the daily diary. Sunil Kumar (PW6) and Sunil Kumar

(PW10) were the members of the police party in whose presence

the vehicle was stopped and checked. Amar Singh (PW7) was

called to the spot as an independent person. Rajinder (PW8)

measured the timber. ASI Ramesh Thakur (PW9) signed the FIR.

HC Subhash Kumar (PW11) effected the recovery and conducted

the investigation.

5. The accused in his statement recorded under Section

313 of Cr.P.C. admitted that his signatures were obtained in the

documents. He denied the rest of the prosecution’s case. He

examined Daulat Ram (DW1) in defence.

6. Learned Trial Court held that the testimonies of the

police officials corroborated each other. Independent witness

Amar Singh (PW7) also supported the prosecution’s case. The
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statement of Daulat Ram (DW1) was not reliable. The accused

had failed to produce any permit as required under Rule 11 of the

HP Forest Produce Transit (Land Route) Rules, 1978 (Transit

Rules). There is a presumption under Section 69 of the Forest

Act that the forest produce belongs to the State, and the accused

had failed to rebut this presumption. Hence the learned Trial

Court convicted the accused of the commission of an offence

punishable under Section 379 of IPC and Section 42 of the Forest

Act and sentenced him to undergo simple imprisonment for six

months and to pay fine of ₹1,000/- and in default of payment of

fine, to undergo simple imprisonment for two months each for

the commission of offences punishable under Section 379 of IPC

and Section 42 of Forest Act.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused preferred an appeal, which

was decided by the learned Sessions Judge, Shimla. The learned

Appellate Court concurred with the findings recorded by the

learned Trial Court that the testimonies of the prosecution

witnesses corroborated one another. The prosecution’s case

could not be doubted merely because the owner of the vehicle

had not supported the prosecution’s case. The statement of
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Daulat Ram (DW1) that forest produce was being loaded in the

vehicle was not reliable. He denied that the timber was freshly

cut, whereas the prosecution’s evidence clearly showed that the

timber was freshly cut. Therefore, his testimony regarding the

loading of the timber was not credible. Minor contradictions in

the statements of the prosecution’s witnesses were not

sufficient to discard their testimonies. The accused was rightly

convicted and sentenced for the commission of an offence

punishable under Section 42 of the Indian Forest Act. The

learned Appellate Court disagreed with the findings recorded by

the learned Trial Court that the offence of theft was proven. It

was held that the presumption under Section 69 of the Indian

Evidence Act cannot be used for convicting a person of theft.

Thus, the appeal was partly allowed, and the accused was

acquitted of the commission of an offence punishable under

Section 379 of the IPC.

8. Being aggrieved by the judgments and order passed

by the learned Courts below, the accused filed the present

revision, asserting that the learned Courts below based their

judgments on conjectures and surmises. It was not proved that

the accused was driving the vehicle. The defence version that the
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forest official and the police official loaded the timber in the

vehicle was probable. This version was wrongly discarded.

Pradhan, Gram Panchayat, was inimical to the accused. The

petitioner is the sole provider of his family and should not have

been sent to jail; rather, the benefit of the Probation of

Offenders Act should have been provided to him. Hence, it was

prayed that the present revision be allowed and the judgments

and order passed by learned Courts below be set aside.

9. I have heard Mr. Ajay Kochhar, learned Senior

Counsel, assisted by Mr. Anubhav Chopra, learned counsel for

the petitioner/accused and Mr. Ajit Sharma, learned Deputy

Advocate General for the respondent/State.

10. Mr. Ajay Kochhar, learned Senior Counsel for the

petitioner/accused, submitted that the learned Courts below

erred in convicting and sentencing the accused. The testimonies

of the police officials were contradicted by the statement of

Daulat Ram (DW1). It was highly probable that timber was

loaded in the vehicle by the police. The timber was not produced

before the Court, and this is fatal to the prosecution’s case. He

relied upon the judgment of the Hon’ble Supreme Court in
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Pawan Kumar Vs. State of H.P. (2019) 4 SCC 182 in support of his

submission.

11. Mr. Ajit Sharma, learned Deputy Advocate General for

the respondent-State, submitted that the learned Courts below

had rightly appreciated the evidence and this Court should not

interfere with the concurrent findings of fact recorded by the

learned Courts below. Therefore, it was prayed that the present

revision be dismissed.

12. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

13. It was laid down by the Hon’ble Supreme Court in

Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:

(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional

court is not an appellate jurisdiction and it can only rectify the

patent defect, errors of jurisdiction or the law. It was observed

on page 207: –

“10. Before adverting to the merits of the contentions, at
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence
brought on record. The High Court in criminal revision
against conviction is not supposed to exercise the
jurisdiction like the appellate court, and the scope of
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( 2025:HHC:11930 )

interference in revision is extremely narrow. Section 397
of the Criminal Procedure Code (in short “CrPC“) vests
jurisdiction to satisfy itself or himself as to the
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity of
any proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
which is to be determined on the merits of individual
cases. It is also well settled that while considering the
same, the Revisional Court does not dwell at length upon
the facts and evidence of the case to reverse those
findings.

14. This position was reiterated in State of Gujarat v.

Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was

observed:

“13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C., which vests the court with the power
to call for and examine records of an inferior court, is for
the purposes of satisfying itself as to the legality and
regularity of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has
crept into such proceedings. It would be apposite to refer
to the judgment of this court in Amit Kapoor v. Ramesh
Chandra, (2012) 9 SCC 460, where the scope of Section 397
has been considered and succinctly explained as under:

“12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as
to the legality and regularity of any proceedings or
order made in a case. The object of this provision is
to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error, and it
may not be appropriate for the court to scrutinise the
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orders, which, upon the face of it, bear a token of
careful consideration and appear to be in accordance
with the law. If one looks into the various judgments
of this Court, it emerges that the revisional
jurisdiction can be invoked where the decisions
under challenge are grossly erroneous, there is no
compliance with the provisions of law, the finding
recorded is based on no evidence, material evidence
is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive
classes but are merely indicative. Each case would
have to be determined on its own merits.

13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to
whether the charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is
a much-advanced stage in the proceedings under
the CrPC.”

15. The present revision has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

16. Sant Ram (PW1) stated that he reached U-38 Jahoo

Jungle at 12.15 AM along with his Chowkidar and Forest Guard.

The police had already reached the spot. A vehicle bearing

registration No. HP-09A-1175 was parked on the road. 14 logs of
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deodar were loaded in the vehicle. The accused, Madan Singh,

was sitting in the vehicle. 6 logs were lying on the road. Pradhan

Gram Panchayat was also present. 6 logs were put in the vehicle,

and the accused was brought to the Police Station, Theog. These

logs were measured in the Police Station.

17. This witness was not cross-examined by the

prosecution which means that his testimony has not been

discredited by the prosecution. Hence, the same is to be accepted

as correct. In Javed Masood vs State of Rajasthan (2010) 3 SCC 538,

the prosecution came up with a specific version that the incident

was witnessed by three witnesses, Husain Lal, Rayees and Ayub

Bhai. When Ayub Bhai appeared in the Court, he stated that he

saw a crowd and came to know on inquiries that the deceased

was lying completely soaked in blood. He telephoned other

people who came after some time. This witness was not declared

hostile. He was not even re-examined by the prosecution. It was

held that his testimony made the prosecution’s case doubtful

regarding the presence of other persons, and it would not be

proper to rely on their testimonies. It was observed:

“This witness did not support the prosecution’s case. He
was not subjected to any cross-examination by the
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( 2025:HHC:11930 )

prosecution. His evidence remained unimpeached. There
is no reason to disbelieve the evidence of PW-6, and no
valid reason has been suggested as to why his evidence
cannot be relied on and taken into consideration. The
evidence of PW-6, if it is to be taken into consideration,
makes the presence of PWS 5, 13 and 14 highly doubtful at
the scene of occurrence. We do not find any reason
whatsoever to discard the evidence of PW-6, who is an
independent witness. His evidence is binding on the
prosecution as it is. No reason, much less a valid reason,
has been stated by the Division Bench as to how evidence
of PW-6 can be ignored.

13. In the present case, the prosecution never declared
PWs 6, 18, 29 and 30 “hostile”. Their evidence did not
support the prosecution. Instead, it supported the
defence. There is nothing in the law that precludes the
defence to rely on their evidence. This court in Mukhtiar
Ahmed Ansari vs State (NCT of Delhi) (2005) 5 SCC 258
observed:

“30. A similar question came up for consideration
before this Court in Raja Ram v. the State of
Rajasthan (2005) 5 SCC 272. In that case, the
evidence of the Doctor who was examined as a
prosecution witness showed that the deceased was
being told by one K that she should implicate the
accused or else she might have to face prosecution.
The Doctor was not declared “hostile”. The High
Court, however, convicted the accused. This Court
held that it was open to the defence to rely on the
evidence of the Doctor, and it was binding on the
prosecution.

31. In the present case, evidence of PW1 Ved
Prakash Goel destroyed the genesis of the
prosecution that he had given his Maruti car to the
police in, which police had gone to the Bahai
Temple and apprehended the accused. When Goel
did not support that case, the accused can rely on
that evidence.”

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18. Similar is the judgment in Ram Sewak vs State

2004(11) SCC 259 wherein it was held that when a discrepancy

had cropped up which was not clarified in the re-examination,

the benefit of the said discrepancy would go to the defence. It

was observed:

“Even assuming that there is some doubt as to the
interpretation of this part of his evidence since the same
is not clarified by the prosecution by way of re-
examination, the benefit of the doubt should go to the
defence, which has in specific terms taken a stand that
the FIR came into being only after the dead body was
recovered.”

19. Therefore, the benefit of the statement made by Sant

Ram (PW1) will go to the accused. Once he stated that the vehicle

had 14 logs of timber and that 6 logs were lying on the road,

which were loaded in his presence, the prosecution’s case that

the accused was intercepted with 20 logs of timber has become

doubtful, and benefit of every doubt in the prosecution’s case

must be given to the accused.

20. Learned Appellate Court held that the statement of

Sant Ram (PW1) will not help the accused because he stated that

12 logs of Deodar were loaded in the vehicle, and 8 logs were

lying on the spot. The defence never stated that the accused was

only carrying 12 logs. It appeared that the forest produce was
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stacked and was to be loaded in the vehicle, and the possibility of

the accused in loading the forest produce to wriggle out of the

charge could not be ruled out. These findings are contrary to the

record. First, Sant Ram (PW1) stated that 14 and not 12 logs, as

noted by the learned Appellate Court, were in the vehicle, and 6,

not 8, as noticed by the learned Appellate Court, were lying on

the road. Secondly, it is nobody’s case that the forest produce

was kept on the road after extraction and it was loaded into the

vehicle. The prosecution has come with the specific case that the

timber was loaded in the vehicle when it was intercepted by the

police. No police official stated that the accused had tried to

unload the vehicle to wriggle out of the charge, and the

possibility, noted by learned the Appellate Court, did not appear

on record. However, the statement of Daulat Ram (DW1) that the

vehicle was empty and 22 logs were lying on the road, which

were loaded in the vehicle, is not trustworthy because it is

contrary to the statement of Sant Ram (PW1), with whom Daulat

Ram claimed to have visited the spot.

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21. Learned Trial Court held that Sunil Kumar (PW6),

Amar Singh (PW7) and Sunil Kumar (PW10) consistently stated

about the presence of 20 logs of timber in the vehicle, and there

was no reason to disbelieve their testimonies. Learned Trial

Court ignored the statements made by Sant Ram (PW1) that

when he visited the spot, the vehicle had 14 logs and 6 logs were

lying on the road, which were loaded thereafter. This statement

falsified the prosecution’s version that the vehicle was loaded

with 20 logs when it was intercepted by the police.

22. It was submitted that the testimony of Sant Ram

proved that the vehicle had 14 logs and the accused was present

in the vehicle. The accused is liable to be punished for

transporting 14 logs. This submission will not help the

prosecution. It is trite to say that the prosecution has to prove

the case projected by it, and the Court cannot make out a

different case for it. Hence, it is not permissible for the Court to

make out a case for the prosecution that the accused was

transporting 14 logs when the prosecution had not come with

this version before the Court.

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23. It was specifically mentioned by Sant Ram (PW1) that

the forest guard marked his seizure hammer No.5-TH Theog on

the seized timber. HC Subhash Chand (PW11) also stated in his

examination-in-chief that the timber was handed over to

Kishori Lal vide sapurdari memo. Forest Guard put the seizure

hammer on the timber and the list (Ex.PW1/A). Therefore, the

fact that the timber was marked with the seizure hammer is duly

established.

24 The prosecution did not produce 20 logs of deodar

before the Court, but produced only one sample (Ex.P2) during

the examination of HC Sunil Kumar (PW10), who had identified

it. He admitted in his cross-examination that the seizure

hammer was not put on the log. He volunteered to say that the

impression was not visible due to the lapse of time. No witness

stated that the seizure hammer becomes invisible with time.

Hence, the explanation provided by HC Sunil Kumar that the

seized hammer becomes invisible with time is not acceptable.

HC Subhash Kumar (PW11) also stated that he had not seen 19

logs but only 01 log. No reason was assigned for not producing

20 logs of deodar. It was laid down by the Hon’ble Supreme

Court in Pawan Kumar v. State of H.P., (2019) 4 SCC 182: (2019) 2
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SCC (Cri) 39: 2019 SCC OnLine SC 359 that when the seized wood

and the vehicle were not produced, and only one sample was

produced, the accused cannot be convicted of the commission of

offences punishable under Section 379 of the IPC and Section 42

of the Forest Act. It was observed at page 183: –

“4. We have heard the learned counsel for the respondent
in opposition to the appeal and considered the nature of
the evidence available. Non-production of the seized
wood and the vehicle, the primary evidence of the
offence, renders the prosecution’s case fragile and
unsustainable. Mere production of the seizure memo does
not tantamount to the production of the seized woods and
the lorry. Unless the seized wood was produced, mere
production of a sample, and there is no material in
support that the sample was out of the same 22 logs, we
are unable to sustain the conviction of the appellants.”

25. Therefore, in view of this binding precedent, the

non-production of the timber is fatal to the prosecution’s case,

and the mere production of one log is not sufficient to record a

conviction.

26. Learned Courts below did not consider these aspects.

They proceeded on the basis that Sant Ram had supported the

prosecution’s case. They failed to appreciate that the statement

of Sant Ram made the prosecution case suspect that the accused

was transporting 20 logs, and the benefit of his testimony was to
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be given to the accused and not to the prosecution. They did not

consider the non-production of the case property and arrived at

a result which could not have been arrived at by any reasonable

person. Therefore, the judgments and order passed by learned

Courts below are not sustainable.

27. Consequently, the present revision is allowed, and

the accused is acquitted of the commission of the offence

punishable under Section 42 of the Indian Forest Act.

28. The fine amount shall be refunded to the accused

after the expiry of the period of limitation, and in case no appeal

is preferred, and in case an appeal is preferred the same be dealt

with as per orders of the Hon’ble Supreme Court.

29. In view of the provisions of Section 437-A of the Code

of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha

Sanhita, (2023) the petitioner/accused is directed to furnish bail

bonds in the sum of ₹25,000/-each with one surety each in the

like amount to the satisfaction of the learned Trial Court within

four weeks, which shall be effective for six months with

stipulation that in the event of appeal being filed against this

judgment, or on grant of the leave, the petitioner/accused on
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receipt of notice thereof, shall appear before the Hon’ble

Supreme Court.

30. A copy of this judgment, along with the record of the

learned Trial Court, be sent back forthwith. Pending

applications, if any, also stand disposed of.

(Rakesh Kainthla)
Judge
01st May, 2025
(Chander)

Digitally signed by KARAN SINGH GULERIA
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KARAN PRADESH, OU=HIGH COURT OF
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Date: 2025-05-01 17:35:56