ARJUNA RANA v. AKBAR TANTY — 1989 DIGILAW 17 (ORI)

V. GOPALASWAMY, J. ( 1 ) THIS appeal is preferred by the complainant in I. C. C. No. 76 of 1978 against the judgment, dated 1/10/1981 of the learned Sessions Judge, Sundergarh, in Criminal Appeal No. 93 of 1980 allowing the appeal and setting aside the order of conviction and sentence passed by the trial Court against the respondents under sections 379/34, I. P. C. ( 2 ) THE prosecution case, brielly stated, is that on 22/10/1978 at about 8 a. m. the accused respondents had unlawfully trespassed into Ac. 0. 31 decimals of land of Plot No. 1378/2, Khata No. 108 of village Khampur belonging to the present appellant, had cut and carried away the paddy crop raised by him and thereby rendered themselves liable under sections 379/34. I. P. C. ( 3 ) THE plea of the accused persons is that respondent Akbar Tanty was the owner of the disputed land and he was all along in peaceful possession and enjoyment of the same and as the paddy prop in question was raised on the disputed land by him, they had cut and carried away the crop in their own right and they have not committed any offence in doing so. The defence had examined D. W. 1 in support of their plea. The prosecution has examined in all four witnesses to prove its case. P. W. 1 is the complainant and P. Ws. 2 to 4 were examined to corroborate his version. Besides the oral evidence, the complainant has relied on the documentary evidence Exts. 1 to 6 in support of his case. ( 4 ) P. W. 1 is the complainant and, therefore, he is a highly interested witness. Admittedly P. W. 2 has no land adjoining to the disputed land. In chief-examination he merely stated about the accused persons removing the paddy crop from the disputed land. P. W. 3 is one of the boundary witnesses and he was the only boundary witness examined by the complainant on his side. The name of D. W. 1 was mentioned as a witness in the complaint petition but the complainant did not choose to examine him as a witness. So the accused had to examine him as D. W. 1 on his side. D. W. 1 has got lands towards the north of the disputed land. The name of D. W. 1 was mentioned as a witness in the complaint petition but the complainant did not choose to examine him as a witness. So the accused had to examine him as D. W. 1 on his side. D. W. 1 has got lands towards the north of the disputed land. D. W. 1 stated on oath that accused Akbar Tanty was all along in possession of the disputed land and that the complainant never possessed it at any time. On a perusal of the judgment of the learned Sessions Judge, it is seen that in view of the evidence of D. W. 1, he found that the evidence on record does not conclusively establish that it was the complainant who was in possession of the disputed land by the relevant date. ( 5 ) ADMITTEDLY the disputed land originally belonged to respondent No. 1 Akbar Tanty, who is a member of the Scheduled Caste. So it is the case of the complainant that after the necessary permission was obtained from the S. D. O. , the disputed land was purchased by him under a registered sale deed, dated 30/12/1969 (Ext. 2 ). The registered sale deed (Ext. 2) discloses that the land mentioned therein was referred to as of plot No. 1178/2. According to complainant the land sold to him was of plot No. 1378/2 but mistakenly it was mentioned as 1178/2 Ext. 2 and subsequently as he discovered the mistake at his instance, the registered deed of rectification Ext. 3 was executed by respondent Akbar Tanty on 21. 12. 1970. The complainant asserts that the disputed land in question is of plot No. 1378/2. Respondent Akbar Tanty alleges that the disputed land was never sold by him to the complainant and he was all along in possession and enjoyment of the same. Ext. 1 is the certified copy of the order of the S. D. O in O. L. R. Misc. Case No. 137 of 1969 granting permission for the sale of the land by Akbar Tanty as he was a member of the scheduled caste. On a perusal of Ext. 1, it is seen that there is no mention of any plot number therein. Case No. 137 of 1969 granting permission for the sale of the land by Akbar Tanty as he was a member of the scheduled caste. On a perusal of Ext. 1, it is seen that there is no mention of any plot number therein. So it is only to be presumed that the permission was given with respect to the land mentioned in the petition of Akbar Tanty but the said petition is not filed into court. Even if the complainants assertion that the permission by the S. D. O. was granted in respect of plot No. 1178/2 is accepted as true, no fresh permission was obtained from the S. D. O. for the sale of the land of Plot No. 1378/2. On a perusal of Ext. 4, it is seen that the land appertaining to plot No. 1178/2 belonged to Japi Oram and others and not to the complainant. (Ext. 5) shows that the land of plot No. 1378/2 of Khata No. 108 of village Khampur stands recorded in the name of one Matha Ganda son of Sada Ganda under the Choukidar Jagri. On a perusal of the mutation order dated 15/1/1980 Ext. 6, it is seen that even at the time of the said proceeding; the petitioner-respondent Akbar Tanty asserted his title to and possession over the land in question. On a careful consideration of the above facts the learned Sessions Judge found that the present respondents had every right to assert their possession over the disputed land. ( 6 ) IN Suvvari Sanyasi Apparao and another v. Boddepalli Lakshminarayan and another, it was held that the settled position of law is that where bona-fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal. In Dhan Kumar v. Municipal Corporation Delhi, the appellant was tried and convicted under sections 7/16 of the Prevention of Food Adulteration Act, for selling adulterated rock salt, by the Judicial Magistrate, First Class, Delhi and on appeal the Additional Sessions Judge set aside his conviction and sentence. In Dhan Kumar v. Municipal Corporation Delhi, the appellant was tried and convicted under sections 7/16 of the Prevention of Food Adulteration Act, for selling adulterated rock salt, by the Judicial Magistrate, First Class, Delhi and on appeal the Additional Sessions Judge set aside his conviction and sentence. Against the order of acquittal of the Additional Sessions Judge an appeal was filed in the High Court of Delhi, when the High Court reversed the acquittal and convicted the appellant, restoring the sentence awarded by the Judicial Magistrate. The Supreme Court while allowing the appeal preferred against the judgment of the High Court convicting and sentencing the appellant, observed as follows: Be that as it may, the view of the evidence taken by the Additional Sessions Judge could not be said to be unreasonable. It is well settled that if two views of the evidence are reasonably possible, one favouring acquittal and the other conviction, the High Court should not reverse the order of acquittal. The above observations indicate what should be the approach of this Court while considering an appeal against the judgment of acquittal of the lower appellate court. On consideration of the facts and circumstances of the case, in the light of the principles of law enunciated in Dhan Kumars case (supra) and Sanyas Apparaos case (supra ). I find there is nothing unreasonable in the view taken by the learned Session Judge that as the accused persons had removed the paddy crop in exercise of their bona fide claim of right, they, are entitled to an acquittal of the charge under sections 379/34, I. P. C. ( 7 ) IN the result, I find no merit in the appeal and the same is, therefore, dismissed. Appeal dismissed. .