2026:HHC:33

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 388 of 2016

Reserved on: 1.12.2025

Date of Decision: 1.1.2026.

Rajinder Kumar and others ...Petitioners

Versus

State of H.P. ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

Yes

For the Petitioners : Mr H.S. Rangra, Advocate.

For the Respondent/State : Mr Lokender Kutlehria,

Additional Advocate General.

Rakesh Kainthla, Judge

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

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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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

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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 ₹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

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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 pleaded not guilty and

claimed to be tried.

4. The prosecution examined 11 witnesses to prove its

case. Rattan Chand (PW1), Hardev Singh (PW3), HHC Amar

Singh (PW7) and Vijay Kumar (PW8) are the witnesses to

recovery. Ami Chand (PW2) is the witness to the weighing of the

Dandasa (walnut bark). Budhi Singh (PW4) produced the

documents of the vehicle. Hardev Gupta (PW5) was working as

the Range Officer to whom the Dandasa (walnut bark) was

handed over on Sapurdari. ASI Jagroop (PW6) witnessed the

recovery of the documents. Milap Chand (PW9) was working as

MHC with whom the case property was deposited. Ghanshyam

(PW10) did not support the prosecution's case. ASI Dharam

Chand (PW11) investigated the matter.

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5. The accused, in their statements recorded under

Section 313 of Cr.P.C., denied the prosecution's case in its

entirety. They claimed that they were innocent and were falsely

implicated. They did not produce any evidence in defence.

6. Learned Trial Court held that the testimonies of the

eye witnesses corroborated each other. They specifically stated

that they had intercepted a truck carrying 97 sacks of Dandasa

(walnut bark). The accused were travelling in the truck. They

could not produce any document authorising them to transport

the Dandasa (walnut bark). Minor contradictions in the

statements of the prosecution witnesses were not sufficient to

discard the prosecution's case, as the contradictions are bound

to come with the passage of time. The non-production of the

entry of the truck made at the Ghatasani barrier was not

material. Dandasa (walnut bark) is a forest produce and is

presumed to be the property of the Government unless proved to

the contrary. The accused had pointed out a place from where

the Dandasa (walnut bark) was loaded into the truck. This

showed the conduct of the accused. Hence, the learned Trial

Court convicted the accused of the commission of offences

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punishable under Section 379 of the IPC and Sections 41 and 42

of the Indian Forest Act and sentenced them as under:-

Under Sections 41 and 42 of the

Indian Forest Act.

To suffer simple imprisonment for six

months each, pay a fine of ₹500/-

each, and in default of payment of

fine, to undergo simple imprisonment

for five days each.

Under Section 379 of the IPC To suffer simple imprisonment for six

months.

All the substantive sentences of imprisonment were ordered to run

concurrently.

7. Being aggrieved by the judgment and order passed by

the learned Trial Court, the accused filed an appeal, which was

decided by the learned Additional Sessions Judge-II, Mandi,

Camp at Jogindernagar, District Mandi, HP (learned Appellate

Court). The learned Appellate Court concurred with the findings

recorded by the learned Trial Court that the police had

intercepted the vehicle bearing registration No. HP-29-2754

carrying 97 sacks of Dandasa (walnut bark). The accused were

present in the truck at the time of the recovery and would be in

possession of the Dandasa (walnut bark). They failed to produce

any document authorising them to transport the Dandasa

(walnut bark). Dandasa (walnut bark) is a forest produce, and a

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presumption under Section 69 of the Indian Forest Act would

apply that it is a property of the State Government. The burden

would shift upon the accused to rebut the presumption. They

failed to rebut the presumption and the learned Trial Court had

rightly convicted them. The sentence imposed upon them was

adequate, and no interference was required with the sentence

imposed by the learned Trial Court. Therefore, the appeal was

dismissed.

8. Being aggrieved by the judgments and order passed

by the learned Courts below, the petitioners/accused have filed

the present petition, asserting that the learned Courts below

erred in appreciating the material placed on record. The

testimonies of the prosecution witnesses were not carefully

examined. They contradicted each other on material aspects,

which made the prosecution's case suspect. No independent

witness was associated to corroborate their testimonies.

Therefore, it was prayed that the present revision be allowed

and the judgments and order passed by the learned Courts below

be set aside.

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9. I have heard Mr H.S. Rangra, learned counsel, for the

petitioners/accused and Mr Lokender Kutlehria, learned

Additional Advocate General, for the respondent-State.

10. Mr H.S. Rangra, learned counsel for the

petitioners/accused, submitted that the learned Courts below

erred in appreciating the material placed before them. The

statements of prosecution witnesses contradicted each other on

material aspects. The evidence regarding the checking of the

gunny sacks is contradictory. There was no evidence that

Dandasa (walnut bark) belonged to the State Government, and

the learned Courts below erred in relying upon the presumption.

Therefore, he prayed that the present revision be allowed and

the judgments and order passed by the learned Trial Court be set

aside.

11. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent State, submitted that the police

intercepted a truck containing Dandasa (walnut bark) in the

middle of the night. It was not possible to join any independent

person at those odd hours. The prosecution's case cannot be

doubted because of the failure to join the independent person.

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Nothing was shown in the cross-examination of the prosecution

witnesses that they were making false statements. Both the

learned Courts below have concurrently held that the accused

were found in the truck which was carrying 97 gunny sacks of

Dandasa (walnut bark). These are pure findings of fact, and this

Court should not interfere with the findings of fact recorded by

the learned Courts below while exercising the revisional

jurisdiction. Therefore, he 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 a revisional

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

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

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jurisdiction like the appellate court, and the scope of

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) 17 SCC 688: 2023 SCC OnLine SC

1294, wherein it was observed at page 695:

“14. The power and jurisdiction of the Higher Court under

Section 397 CrPC, 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

regularities 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 in such proceedings.

15.It would be apposite to refer to the judgment of this

Court in Amit Kapoor v.Ramesh Chander, (2012) 9 SCC 460:

(2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986, where the

scope of Section 397 has been considered and succinctly

explained as under: (SCC p. 475, paras 12-13)

“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

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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 orders, which, upon the face of it, bear a token of

careful consideration and appear to be in accordance

with 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 the framing of the charge is a much-advanced

stage in the proceedings under CrPC.”

15. It was held in Kishan Rao v. Shankargouda, (2018) 8

SCC 165: (2018) 3 SCC (Cri) 544: (2018) 4 SCC (Civ) 37: 2018 SCC

OnLine SC 651 that it is impermissible for the High Court to

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reappreciate the evidence and come to its conclusions in the

absence of any perversity. It was observed at page 169:

“12. This Court has time and again examined the scope of

Sections 397/401 CrPC and the grounds for exercising the

revisional jurisdiction by the High Court. In State of Kerala

v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC

452: 1999 SCC (Cri) 275, while considering the scope of the

revisional jurisdiction of the High Court, this Court has

laid down the following: (SCC pp. 454-55, para 5)

5. … In its revisional jurisdiction, the High Court can

call for and examine the record of any proceedings

to satisfy itself as to the correctness, legality or

propriety of any finding, sentence or order. In other

words, the jurisdiction is one of supervisory

jurisdiction exercised by the High Court for

correcting a miscarriage of justice. But the said

revisional power cannot be equated with the power

of an appellate court, nor can it be treated even as a

second appellate jurisdiction. Ordinarily, therefore,

it would not be appropriate for the High Court to

reappreciate the evidence and come to its

conclusion on the same when the evidence has

already been appreciated by the Magistrate as well

as the Sessions Judge in appeal, unless any glaring

feature is brought to the notice of the High Court

which would otherwise tantamount to a gross

miscarriage of justice. On scrutinising the

impugned judgment of the High Court from the

aforesaid standpoint, we have no hesitation in

concluding that the High Court exceeded its

jurisdiction in interfering with the conviction of the

respondent by reappreciating the oral evidence. …”

13. Another judgment which has also been referred to and

relied on by the High Court is the judgment of this Court

in Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke,

(2015) 3 SCC 123: (2015) 2 SCC (Cri) 19]. This Court held

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that the High Court, in the exercise of revisional

jurisdiction, shall not interfere with the order of the

Magistrate unless it is perverse or wholly unreasonable or

there is non-consideration of any relevant material, the

order cannot be set aside merely on the ground that

another view is possible. The following has been laid

down in para 14: (SCC p. 135)

“14. … Unless the order passed by the Magistrate is

perverse or the view taken by the court is wholly

unreasonable or there is non-consideration of any

relevant material or there is palpable misreading of

records, the Revisional Court is not justified in setting

aside the order, merely because another view is

possible. The Revisional Court is not meant to act as an

appellate court. The whole purpose of the revisional

jurisdiction is to preserve the power in the court to do

justice in accordance with the principles of criminal

jurisprudence. The revisional power of the court under

Sections 397 to 401 CrPC is not to be equated with that

of an appeal. Unless the finding of the court, whose

decision is sought to be revised, is shown to be

perverse or untenable in law or is grossly erroneous or

glaringly unreasonable or where the decision is based

on no material or where the material facts are wholly

ignored or where the judicial discretion is exercised

arbitrarily or capriciously, the courts may not interfere

with the decision in exercise of their revisional

jurisdiction.”

16. This position was reiterated in Bir Singh v. Mukesh

Kumar, (2019) 4 SCC 197: (2019) 2 SCC (Cri) 40: (2019) 2 SCC (Civ)

309: 2019 SCC OnLine SC 13, wherein it was observed at page 205:

“16. It is well settled that in the exercise of revisional

jurisdiction under Section 482 of the Criminal Procedure

Code, the High Court does not, in the absence of

perversity, upset concurrent factual findings. It is not for

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the Revisional Court to re-analyse and re-interpret the

evidence on record.

17. As held by this Court in Southern Sales & Services v.

Sauermilch Design and Handels GmbH, (2008) 14 SCC 457, it

is a well-established principle of law that the Revisional

Court will not interfere even if a wrong order is passed by

a court having jurisdiction, in the absence of a

jurisdictional error. The answer to the first question is,

therefore, in the negative.”

17. This position was reiterated in Sanjabij Tari v. Kishore

S. Borcar, 2025 SCC OnLine SC 2069, wherein it was observed:

“27. It is well settled that in exercise of revisional juris-

diction, the High Court does not, in the absence of perver-

sity, upset concurrent factual findings [See: Bir

Singh(supra)]. This Court is of the view that it is not for

the Revisional Court to re-analyse and re-interpret the

evidence on record. As held by this Court in Southern Sales

& Services v. Sauermilch Design and Handels GMBH, (2008)

14 SCC 457, it is a well-established principle of law that

the Revisional Court will not interfere, even if a wrong or-

der is passed by a Court having jurisdiction, in the absence

of a jurisdictional error.

28. Consequently, this Court is of the view that in the ab-

sence of perversity, it was not open to the High Court in

the present case, in revisional jurisdiction, to upset the

concurrent findings of the Trial Court and the Sessions

Court.

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

parameters laid down by the Hon’ble Supreme Court.

19. Learned Courts below relied upon the presumption

contained in Section 69 of the Indian Forest Act to hold that the

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Dandasa (walnut bark) belonged to the State. This was

impermissible. It was laid down by this Court in Prem Kumar

Malik Versus State Of Himachal Pradesh 2000 (2) Shim. LC 520,

that the presumption under Section 69 of the Indian Forest Act

cannot be used for convicting a person for the commission of

offences punishable under Section 379 of the IPC. It was

observed:-

“23. In Sidheswar Panda v. The State, AIR 1954 Orissa 16,

the accused therein was found in possession of 31 pieces

of Sal timber on 17.5.1951. The forester suspected that the

same might have been removed from the Government

forest and demanded the production of a permit from the

accused. The accused pleaded that such logs were

obtained by him from one Shri Naylor under a permit.

However, the accused could not produce a permit. There

was no hammer mark on the logs. There was no evidence

by the prosecution to show that the seized timber was

felled or removed from any Government forest. The

Magistrate, relying upon the presumption under Section

69 of the Indian Forest Act, convicted the accused for the

offence under Section 26(f) and (g) of the Act, read with

Hindol (Assam) Forest Rules. On the matter being carried

before the High Court, it was held that the rule contained

in Section 69 of the Act at best raises a presumption that,

in the absence of evidence, it shall be presumed that they

are Government property, but this is only a rule of

evidence, and the accused cannot be convicted on a mere

presumption. It was the duty of the prosecution to

establish that some timber was felled and/or removed

from the Government forest and that the timber in

possession of the accused corresponded to the logs

illegally removed from the Government forest. It was

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further held that it may well be that the accused had

failed to explain wherefrom he had obtained the timber;

such failure on the part of the accused to explain

satisfactorily the source of the timber would not relieve

the prosecution to prove that the timber constituted

Government property and had been illegally removed.

24. In the present case as well, in the absence of evidence

that theft of timber was committed and that the timber

found in possession of the accused corresponded to the

timber stolen, the accused could not have been convicted

for the offence under Section 379, Indian Penal Code by

merely raising the presumption under Section 69, Indian

Forest Act, even though the accused could not explain the

source from where he obtained such timber. The

conviction and sentence of the accused for the offence

under Section 379, Indian Penal Code, therefore, cannot

be sustained.”

20. Therefore, the conviction could not have been

recorded merely based on the presumption contained in Section

69 of the Indian Forest Act.

21. Learned Courts below also relied upon the fact that

the accused had shown the place from where the walnut bark

was loaded into the truck. There is no evidence that anything

was discovered pursuant to the disclosure statement made by

the accused. ASI Dharam Chand (PW11) stated in his cross-

examination that he had made inquiries regarding the loading of

Dandasa (walnut bark) in the truck, but could not find any

independent witness to establish this fact. It was laid down in

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Gajrani vs. Emperor, AIR 1933 Allahabad 394, that where the

accused points to a place from where he had purchased

something, it does not lead to the discovery of any fact. It was

observed:

“We do not consider that the pointing out of the shop in

this statement can be held to amount to the discovery of a

fact, and consequently, we do not consider that this

evidence is admissible under Section 27, Evidence Act.”

22. Similarly, in H.P. Administration vs. Om Parkash, AIR

1972 SC 975, the accused pointed out the witness from whom he

had purchased the dagger. This was held to be outside the

purview of Section 27 of the Indian Evidence Act. It was

observed:

“12. Thereafter, on the information furnished by the

accused that he had purchased the weapon from Ganga

Singh, P. W. 11, and that he would take them to him, they

went to the thari of P. W. 11, where the accused pointed

him out to them. It is contended that the information

given by the accused that he purchased the dagger from P.

W. 11, followed by his leading the police to his thari and

pointing him out, is inadmissible under Section 27 of the

Evidence Act. In our view, there is a force in this

contention. A fact discovered within the meaning of

Section 27 must refer to a material fact to which the

information directly relates. To render the information

admissible, the fact discovered must be relevant and must

have been such that it constitutes the information

through which the discovery was made. What is the fact

discovered in this case? Not the dagger, but the dagger

hidden under the stone, which is not known to the police.

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(See Pulukuri Kottaya v. King-Emperor, 74 Ind App 65 = (AIR

1947 PC 67). But thereafter, can it be said that the

information furnished by the accused that he purchased

the dagger from P. W. 11 led to a fact discovered when the

accused took the police to the thari of P. W. 11 and pointed

him out. A single Bench of the Madras High Court in

Public Prosecutor v. India China Lingiah, AIR 1954 Mad 433,

and In re Vellingiri, AIR 1950 Mad 613, seems to have taken

the view that the information by an accused leading to the

discovery of a witness to whom he had given stolen

articles is a discovery of a fact within the meaning of

Section 27. In Emperor v. Ramanuja Ayyanger, AIR 1935

Mad 528 a full Bench of three Judges by a majority held

that the statement of the accused "I purchased the

mattress from this shop and it was this Woman (another

witness) that carried the mattress" as proved by the

witness who visited him with the police was admissible

because the word 'fact' is not restricted to something

which can be exhibited as a material object. This

judgement was before Pulukuri Kattaya's case, when, as far

as the Presidency of Madras was concerned law laid down

by the Full Bench of the Court, In Re Athappa Goundan,

ILR (1937) Mad 695 = (AIR 1937 Mad 618) prevailed. It held

that where the accused's statement connects the fact

discovered with the offence and makes it relevant, even

though the statement amounts to a confession of the

offence. It must be admitted because it is what has led

directly to the discovery. This view was overruled by the

Privy Council in Pulukari Kottaya's case, and this Court had

approved the Privy Council case in Ramkishan Mithanlal

Sharma v. The State of Bombay, (1955) 1 SCR 903 = (AIR 1955

SC 104).

13. In the Full Bench Judgment of Seven Judges in Sukhan

v. The Crown, ILR 10 Lah 283 = (AIR 1929 Lah 344) (FB)

which was approved by the Privy Council in Pulukuri

Kotaya's case, 74 Ind App 65 = (AIR 1947 PC 67) Shadi Lal

C.J, as he then was speaking for the majority pointed out

that the expression 'fact' as defined by Section 3 of the

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Evidence Act includes not only the physical fact which can

be perceived by the senses but also the psychological fact

or mental condition of which any person is conscious and

that it is in the former sense that the word used by the

Legislature refers to material and not to a mental fact. It

is clear, therefore, that what should be discovered is the

material fact, and the information that is admissible is

that which has caused that discovery to connect the

information and the fact with each other as cause and

effect.' That information, which does not distinctly

connect with the fact discovered, or that portion of the

information, which merely explains the material thing

discovered, is not admissible under Section 27 and cannot

be proved. As explained by this Court as well as by the

Privy Council, normally Section 27 is brought into

operation where a person in police custody produces from

some place of concealment some object said to be

connected with the crime of which the informant is the

accused. The concealment of the fact, which is not known

to the police, is what is discovered by the information and

lends assurance that the information was true. No

witness with whom some material fact, such as the

weapon of murder, stolen property or other incriminating

article is not hidden, sold or kept and which is unknown

to the police, can be said to be discovered as a

consequence of the information furnished by the accused.

These examples, however, are only by way of illustration

and are exhaustive. What makes the information leading

to the discovery of the witness admissible is the discovery

from him of the thing sold to him, hidden, or kept with

him, which the police did not know until the information

was furnished to them by the accused. A witness cannot

be said to be discovered if nothing is to be found or

recovered from him as a consequence of the information

furnished by the accused, and the information that

disclosed the identity of the witness will not be

admissible.

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23. It was held in State of Maharashtra Versus Damu

Gopinath Shinde, AIR 2000 S.C. 169, that where the statement of

the accused did not lead to the discovery of any fact, the same is

not admissible. It was observed:-

“The information permitted to be admitted in evidence is

confined to that portion of the information which

'distinctly relates to the fact thereby discovered." But the

information to get admissibility need not be so truncated

as to make it insensible or incomprehensible. The extent

of the information admitted should be consistent with

understandability. In this case, the fact discovered by P.W.

44 is that A-3 Mukinda Thorat had carried the dead body

of Dipak to the spot on the motorcycle.

38. How particular information led to the discovery of the

fact? No doubt, the recovery of the dead body of Dipak

from the same canal was antecedent to the information,

which P.W. 44 obtained. If nothing more was recovered

pursuant to and subsequent to obtaining the information

from the accused, there would not have been any discovery of

any fact at all. But when the broken glass piece was

recovered from that spot, and that piece was found to be

part of the tail lamp of the motorcycle of A-2 Guruji, it

can safely be held that the Investigating Officer

discovered the fact that A-2 Guruji had carried the dead

body on that particular motorcycle up to the spot.”

(Emphasis supplied)

24. In the present case, nothing was recovered under the

statement made by the accused, and the statements made by the

accused and subsequent pointing out the place will be

inadmissible.

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25. Rattan Chand (PW1) stated that the gunny sacks

contained Dandasa (walnut bark). He stated in his cross-

examination that no chemical test was conducted to determine

that the substance was Dandasa (walnut bark), and he had

disclosed this fact based on his experience. Hardev Singh (PW3)

stated in his cross-examination that one or a half gunny sack

was opened, and an estimate was made regarding the substance

being Dandasa (walnut bark). Constable Vijay Kumar (PW8)

stated in his cross-examination that nobody had told him that

gunny sacks contained Dandasa (walnut bark). He and the

Investigating Officer had checked it. He and the Investigating

Officer had no experience in checking the Dandasa (walnut bark).

The Dandasa (walnut bark) was identified by Beat Officer Hardev

Singh (PW3) and Range Officer Hardev Gupta (PW5).

26. The statements of the witnesses do not prove that

the gunny sacks contained Dandasa (walnut bark). Hardev Singh

(PW3) stated that he had identified the Dandasa (walnut bark),

but did not state whether gunny sacks were opened by him or

not. This was important because Ami Chand (PW2) and Hardev

Gupta (PW5) specifically stated in their cross-examination that

the gunny sacks were not opened. Hardev Gupta (PW5) went on

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to say that he conjectured that the gunny sacks might be

containing walnut bark.

27. All the witnesses stated that the gunny sacks

contained Dandasa (walnut bark). Significantly, Himachal

Pradesh Forest Produce Transit (Land Routes) Rules, 1978 does

not mention Dandasa in Annexure-D. Walnut bark is mentioned

in Himachal Pradesh Forest Produce Transit (Land Routes)

Rules, 2013, in Schedule-II at Serial No.43 as Juglans Regia, with

Local/Trade name (Akhrot/Khod) and prohibited plant part bark.

No witness stated that the police had recovered the bark of the

species Juglans Regia. This was essential because the

prosecution relied upon the statements of the forest officials as

experts. Therefore, they were required to prove that the article

recovered had a botanical name mentioned in the schedule. It

was laid down by the Hon'ble Supreme Court in State of H.P. v. Jai

Lal, (1999) 7 SCC 280: 1999 SCC (Cri) 1184: 1999 SCC OnLine SC 885

that an expert is a person who has made a special study of the

subject and he has to furnish the material to the Court to enable

the Judge to form an independent opinion. The report should

state the facts and the opinion.

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2026:HHC:33

“17. Section 45 of the Evidence Act which makes the

opinion of experts admissible lays down that when the

court has to form an opinion upon a point of foreign law,

or of science, or art, or as to the identity of handwriting or

finger impressions, the opinions upon that point of

persons specially skilled in such foreign law, science or

art, or in questions as to the identity of handwriting, or

finger impressions are relevant facts. Therefore, to bring

the evidence of a witness as that of an expert, it has to be

shown that he has made a special study of the subject or

acquired a special experience therein or in other words,

that he is skilled and has adequate knowledge of the

subject.

18. An expert is not a witness of fact. His evidence is really

of an advisory character. The duty of an expert witness is

to furnish the Judge with the necessary scientific criteria

for testing the accuracy of the conclusions to enable the

Judge to form his independent judgment by the

application of these criteria to the facts proved by the

evidence of the case. The scientific opinion evidence, if

intelligible, convincing and tested, becomes a factor and

often an important factor for consideration along with

the other evidence of the case. The credibility of such a

witness depends on the reasons stated in support of his

conclusions and the data and material furnished, which

form the basis of his conclusions.

19. The report submitted by an expert does not go into

evidence automatically. He is to be examined as a witness

in court and has to face cross-examination. This Court in

the case of Hazi Mohammad Ekramul Haq  v. State of

W.B. [AIR 1959 SC 488: 1959 Supp (1) SCR 922] concurred

with the finding of the High Court in not placing any

reliance upon the evidence of an expert witness on the

ground that his evidence was merely an opinion

unsupported by any reasons.”

28. This position was reiterated in Ramesh Chandra

Agrawal v. Regency Hospital Ltd., (2009) 9 SCC 709: (2009) 3 SCC

24

2026:HHC:33

(Civ) 840: 2009 SCC OnLine SC 1625, wherein it was observed at

page 715:

18. The importance of the provision has been explained

in State of H.P. v. Jai Lal [(1999) 7 SCC 280: 1999 SCC (Cri)

1184]. It is held, that, Section 45 of the Evidence Act which

makes the opinion of experts admissible lays down, that,

when the court has to form an opinion upon a point of

foreign law, of science, or art, or as to the identity of

handwriting or finger impressions, the opinions upon

that point of persons specially skilled in such foreign law,

science or art, or in questions as to the identity of

handwriting, or finger impressions are relevant facts.

Therefore, in order to bring the evidence of a witness as

that of an expert, it has to be shown that he has made a

special study of the subject or acquired a special

experience therein or in other words, that he is skilled

and has adequate knowledge of the subject.

19. It is not the province of the expert to act as Judge or

Jury. It is stated in Titli v. Alfred Robert Jones [AIR 1934 All

273] that the real function of the expert is to put before

the court all the materials, together with reasons which

induce him to come to the conclusion, so that the court,

although not an expert, may form its own judgment by its

own observation of those materials.

20. An expert is not a witness of fact, and his evidence is

really of an advisory character. The duty of an expert

witness is to furnish the Judge with the necessary

scientific criteria for testing the accuracy of the

conclusions to enable the Judge to form his independent

judgment by the application of these criteria to the facts

proved by the evidence of the case. The scientific opinion

evidence, if intelligible, convincing and tested, becomes a

factor and often an important factor for consideration

along with other evidence of the case. The credibility of

such a witness depends on the reasons stated in support

of his conclusions and the data and material furnished,

25

2026:HHC:33

which form the basis of his conclusions. (See  Malay

Kumar Ganguly v. Dr Sukumar Mukherjee [(2009) 9 SCC

221: (2009) 10 Scale 675], SCC p. 249, para 34.)

21. In State of Maharashtra v. Damu [(2000) 6 SCC 269:

2000 SCC (Cri) 1088: AIR 2000 SC 1691], it has been laid

down that without examining the expert as a witness in

court, no reliance can be placed on an opinion alone. In

this regard, it has been observed in  State (Delhi

Admn.) v. Pali Ram [(1979) 2 SCC 158: 1979 SCC (Cri) 389:

AIR 1979 SC 14] that “no expert would claim today that he

could be sure that his opinion was correct, expert depends

to a great extent upon the materials put before him and

the nature of question put to him”.

22. In the article “Relevancy of Expert's Opinion, it has

been opined that the value of expert opinion rests on the

facts on which it is based and the expert's competency for

forming a reliable opinion. The evidentiary value of the

opinion of an expert depends on the facts upon which it is

based and also the validity of the process by which the

conclusion is reached. Thus, the idea that is proposed in

its crux means that the importance of an opinion is

decided on the basis of the credibility of the expert and

the relevant facts supporting the opinion, so that its

accuracy can be crosschecked. Therefore, the emphasis

has been on the data on the basis of which an opinion is

formed. The same is clear from the following inference:

“Mere assertion without mentioning the data or basis

is not evidence, even if it comes from an expert. Where

the experts give no real data in support of their

opinion, the evidence, even though admissible, may be

excluded from consideration as affording no

assistance in arriving at the correct value.”

29. Hence, it was essential for forest officials to state the

botanical name and not the local name. The legislature has

consciously used the botanical name with some purpose, and in

26

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the absence of any evidence of the botanical name, the

prosecution's version that the accused had violated the Rules

framed under Section 41 and committed an offence punishable

under Section 42 of the Indian Forest Act is not acceptable.

30. In view of the above, the present revision is allowed,

and the judgments and the order passed by the learned Courts

below are set aside. The accused are acquitted of the commission

of offences punishable under Sections 41 and 42 of the Indian

Forest Act and Section 379 of the IPC. The fine, if deposited, be

refunded to the petitioners/accused after the expiry of the period

of limitation, in case no appeal is preferred, and in case of

appeal, the same be dealt with as per the orders of the Hon’ble

Supreme Court of India.

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

of Criminal Procedure [Section 481 of Bharatiya Nagarik

Suraksha Sanhita, 2023 (BNSS)], the petitioners/accused are

directed to furnish personal bonds in the sum of ₹25,000/- each

with one surety each in the like amount to the satisfaction of the

learned Registrar (Judicial) of this Court/learned Trial Court,

within four weeks, which shall be effective for six months with

stipulation that in the event of Special Leave Petition being filed

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against this judgment, or on grant of the leave, the

petitioners/accused, on receipt of notice thereof, shall appear

before the Hon’ble Supreme Court.

32. A copy of this judgment, along with the records of the

learned Courts below, be sent back forthwith.

33. Pending applications, if any, also stand disposed of.

(Rakesh Kainthla)

Judge

1

st

January, 2026

(Chander)