BHAGABAT BEHURIA v. JAIRAM NAIK — 1969 DIGILAW 129 (ORI)

JUDGMENT : A. Misra, J. - Each of the Petitioners has been convicted u/s 379, Indian Penal Code and sentenced to pay a fine of Rs. 30/- and in default, to undergo rigorous imprisonment for a period of one month. 2. The complainant's case, in brief, is that he was in peaceful possession of the disputed lands and had raised paddy crop which was cut and carried away by Petitioners on 6-12-1963. According to him, though originally the disputed lands belonged to the ancestors of Petitioners Nos. 18 to 20, they were purchased in a Court auction sale in execution of a mortgage decree by one Srikar Naik, who in his turn sold them to one Mangovind and ultimately complainant purchased the same from Mangovind and came into possession under Ex. 4 in the year 1949. In spite of disturbances caused by Petitioners from time to time which led to various litigations between the parties, complainant remained in actual possession of the disputed lands and had raised the crop which was cut and removed by the Petitioners on the date of occurrence. 3. The defence plea, in short, is that in spite of the Court auction sale and the orders in subsequent litigations between the parties, Petitioner No. 2 is in possession of the disputed lands as bhag tenant under Petitioners Nos. 18 to 20 and that he raised the crop in the disputed year which he out and removed in the month of Kartick. The other Petitioners deny to have participated in any occurrence, as alleged. The learned trying Magistrate accepted the complainant's version, convicted the Petitioners and sentenced each of them to a fine of Rs. 100/- with a default sentence of one month's R. I. In appeal, the learned Sessions Judge, while confirming the conviction, reduced the sentence to a fine of Ra. 30/- each and in default to undergo rigorous imprisonment for one month. 4. Learned Counsel for Petitioners assails the conviction mainly on the ground that the learned Sessions Judge who heard the appeal and is the final Court of fact -has totally failed to apply his mind, consider the evidence independently and arrive at his independent findings on the basis of the evidence on record. 4. Learned Counsel for Petitioners assails the conviction mainly on the ground that the learned Sessions Judge who heard the appeal and is the final Court of fact -has totally failed to apply his mind, consider the evidence independently and arrive at his independent findings on the basis of the evidence on record. Therefore, it is argued that the appellate Court judgment is not one in conformity with the provisions contained in Section 367 read with Section 424, Code of Criminal Procedure, and as such, is to be set aside. 5. A perusal of the judgment of the learned Sessions Judge shows that this contention of learned Counsel for Petitioners has considerable force. The two main points for consideration in this case are : (1) whether the complainant was in possession of the disputed lands and had raised the crop in question and (2) whether the prosecution has proved that all or any of the Petitioners had unlawfully cut and removed the said crop, on the date alleged. 6. There is no dispute that the lands in question originally belonged to the ancestors of Petitioners Nos. 18 to 20 who mortgaged them to one Srikar Naik. The mortgagee obtained a preliminary decree (Ex. 8) on 20-9-1927 which was made final (Ex. 7) on 21-3-1928. In execution of this mortgage decree, the properties were sold and purchased by the mortgagee decree holder who took delivery of possession of the same under Ex. 14 on 14.1.1929. Srikar sold them to one Mangovind Naik in 1940 who in his turn sold them to the complainant under Ex. 4 in 1949. These documents of unimpeachable credibility prove that the complainant acquired title to these properties in the year 1949. After purchase in 1949, a criminal case was started against some of the Petitioners alleging that they had cut and removed the crop in question raised by the complainant which was registered as G. R. Case No. 216 of 1949. Ex. M is the judgment dated 28.9.1950 of the trial Court convicting the said Petitioners, Ex. 13 is the judgment dated 14-2-1951 of the appellate Court maintaining the said conviction and Ex. 12 is the judgment dated 14.1.1952 of the High Court in revision wherein ultimately the conviction of Petitioners Nos. 5, 15 and 16 was upheld. Ex. M is the judgment dated 28.9.1950 of the trial Court convicting the said Petitioners, Ex. 13 is the judgment dated 14-2-1951 of the appellate Court maintaining the said conviction and Ex. 12 is the judgment dated 14.1.1952 of the High Court in revision wherein ultimately the conviction of Petitioners Nos. 5, 15 and 16 was upheld. Thereafter, again a proceeding u/s 145, Code of Criminal Procedure was started in which the father of Petitioners Nos. 8 and 10 and,some others including one Gopinath Naik figured as 1st party. Ex. 10 is the order dated 15-10-1954 in the said proceeding wherein possession of the 2nd party (complainant) was declared. It is also not disputed that this order in the proceeding u/s 145, Code of Criminal Procedure became final as no subsequent civil suit was filed. This, however, did not put an end to the litigation between the parties. A suit was filed by members of the original mortgagor's family challenging the validity of the mortgage decree in respect of a small portion of the properties in which ultimately complainant proved successful and Ex. 9 is the judgment dated 5-12-1958. In the meanwhile, vesting of the estate took place on 1-5-1954. According to the complainant, he was paying rent to the landlord till the date of vesting, but as the landlord, while furnishing rent roll to the State omitted to mention his name, the Anchal refused to accept rent from him. Therefore, he filed a mutation case in 1958 on which the supervisor (p.w. 6) gave a report (Ex. 1) after enquiry and mutation was allowed in his favour by Ex. 6 dated 3-10-1963. According to the complainant, after mutation was allowed in his favour, Petitioners started the O.T.R. case on 25-11-1963-vide Ex. D in which Petitioner No. 2 figured as Petitioner, and thereafter, they forcibly cut and carried away the paddy on 6-12-1963. As against the documentary evidence produced by complainant, Petitioners rely on the certified copy of judgment of the criminal Court in Case No. 19 of 1964 (Ex. p) in which some members of the complainant's party are said to have been convicted for alleged removal of crop from the disputed lands in 1961 : and the rent receipts (Exs. J.K. K/1 and L) in support of their claim of being in possession of the disputed lands. p) in which some members of the complainant's party are said to have been convicted for alleged removal of crop from the disputed lands in 1961 : and the rent receipts (Exs. J.K. K/1 and L) in support of their claim of being in possession of the disputed lands. In addition, they assert that till vesting of the estate, they alone were paying rent to the landlord and were entered in his records as persons in possession, as otherwise, in the rent roll furnished by the landlord to the Anchal authorities, their names would not have been mentioned as tenants in respect of the disputed lands. 7. As already indicated, the two points for determination in this case are : (1) whether complainant was in actual possession and had raised the crop in question and (2) whether all or any of the Petitioners cut and removed the said crop, as alleged. Complainant examined, in all, six witnesses and four witnesses were examined on the side of defence. The question as to who has legal title to the properties and whether it is open to Petitioners or any of them to dispute complainant's title, in view of the previous litigations and the judgments and orders therein are not material for the present purpose, except for the purpose of assessing the evidence adduced in the case and determining the aforesaid two points. The learned Sessions Judge in paragraphs 3 to 5 of his judgment has dealt in detail with the documentary evidence produced in the case and referred to above, and considered its effect with regard to the claim of possession of the respective parties. He has, however, made some minor errors of record, such as, declining to attach any importance to the O.T.R. case started by Petitioners on the ground that it was filed subsequent to the occurrence, though in fact, it was filed prior to the date of occurrence and subsequent to the date of Ex. 6. Apart from it, he has completely omitted to refer and assess the oral evidence adduced in the case by the respective parties. He has observed that the only circumstance in favour of the accused-Petitioners is that the name of the complainant or his ancestors was not entered in the records of the landlord and the rent roll furnished by the later to the Anchal authorities was in favour of the plea of Petitioners. He has observed that the only circumstance in favour of the accused-Petitioners is that the name of the complainant or his ancestors was not entered in the records of the landlord and the rent roll furnished by the later to the Anchal authorities was in favour of the plea of Petitioners. According to the learned Sessions Judge, this solitary fact is not sufficient to outweigh the voluminous documentary evidence which are consistent with the evidence on the side of complainant that he was in possession of the lands and had raised the crop. Similarly, he has observed that as it is proved that all the Appellants in a body cut and removed the crop from the disputed lands, they were rightly convicted for the offence u/s 379, Indian Penal Code. In their examination u/s 342 Code of Criminal Procedure, some of the Petitioners, while claiming that they raised crops in the disputed lands, assert that they had removed them in the month of Kartick long before the date of occurrence. The other Petitioners have pleaded that they have been falsely implicated. The learned Sessions Judge has not considered or assessed the oral evidence adduced by the respective parties and independently on the basis of such evidence together with the documents produced decided the question whether in fact, complainant raised the crop in question and it was cut and removed on 6-12-1963, as alleged, or whether the removal of the said crop was in the month of Kartick as claimed by some of the Petitioners. Similarly, he has also not considered the oral evidence adduced in this case to determine whether all or any of the Petitioners Actually indulged in the unlawful cutting and removal of the said crop on the date of the alleged occurrence. 8. Section 367 read with Section 424, Code of Criminal Procedure requires that the judgment of an appellate Court should also contain the points for determination, the decision thereon and the reasons for the decision. In the decision reported in In Re: Bonthu Appadu and Others it was observed: It is even essential that an appellate Court should give reasons for its orders than that the trial Court should do so; for in the later case, the accused has remedy by way of appeal before a tribunal which has to consider questions of fact as when as law. In revision, on the other band, findings of fact are ordinarily accepted. The revisional Court must be satisfied that the appeal was properly disposed of as well as heard. 9. Thus, in short, in this case, while the learned Sessions Judge has practically devoted his entire judgment in dealing with the documents filed by respective parties relating to their previous litigations and the effect it has on claim of title and possession made by each party, he has completely failed to examine the oral evidence before hi m to find out if the prosecution has successfully proved that the disputed crop had been raised by the complainant that it was actually out on 6-12-1963 and not in the month of Kartick as claimed by the Petitioners and whether all or any of the Petitioners participated in the cutting and removal of the same. No doubt, where the appellate Court agrees with the judgment of the lower Court and dismisses an appeal, it may not he necessary for it to write a long and elaborate judgment. All the same, the judgment of the appellate Court should be independent and self-contained, so, that it may indicate that the appellate Court bad considered the case in a proper way and the High Court in revision may be able to follow it without reference to the trial Court judgment. In these circumstances, re-hearing of the appeal seems to be appropriate. The judgment of the learned Sessions Judge is therefore set aside and the case is remitted back to him for re-hearing of the appeal and its disposal in accordance with law in the light of the observations made.