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2002 DIGILAW 734 (ORI)

SASHIBHUSAN GIRI v. KALAKAR MOHANTA

2002-11-13

B.P.DAS

body2002
B. P. DAS, J, J. ( 1 ) THIS criminal appeal is directed against an order of acquittal passed by the learned Sub-Divisional Judicial Magistrate, Karanjia in complaint case bearing I. C. C. No. 78-86 (T. C. No. 7863/86 ). ( 2 ) THE brief fact of the complainant's case is that on 27-10-1986 at about 8 a. m. the respondents came upon the land of the complainant appellant in a group and forcibly cut away and removed the unripe paddy crops worth Rs. 1600. 00 which was raised by the appellant. On the allegation of commission of theft of crops, complainant case was filed against the present respondents, who are total twenty five in number, and stood trial under Section 379 read with Section 34, I. P. C. in furtherance of their common intention. By virtue of the order of this Court dated 5-11-1993, the appeal stood dismissed as against respondents 12, 13, 17 and 24. ( 3 ) THE plea of the defence is that the accused persons cut and removed the paddy crops from the disputed land claiming that the land belongs to respondent No. 1 i. e. Kalakar Mohanta. The appellant examined three witnesses including himself to substantiate his case. The trial Court after looking into the evidence on record, came to the conclusion that there is no documentary evidence to show that the complainant appellant had been really in possession of the disputed land at the time of occurrence and had grown crops in the year in question. Against the aforesaid judgment of the trial Court, the complainant has filed this appeal on the ground that the trial Court has failed to appreciate the evidence on record which unerringly points towards the guilt of the present respondents as the findings of the trial Court is that accused-respondents admittedly cut and removed the paddy crops from the disputed land. The defence having not produced any document to show that they were in possession of the land, the findings of the trial Court are perverse and does not go along with the evidence on record. In this regard, learned counsel for the appellant takes me through the evidences of the prosecution witnesses and submits that from the evidence on record, it is crystal clear that the complainant has proved beyond reasonable doubt that the accused-respondents have committed offence under Section 379/34, IPC. In this regard, learned counsel for the appellant takes me through the evidences of the prosecution witnesses and submits that from the evidence on record, it is crystal clear that the complainant has proved beyond reasonable doubt that the accused-respondents have committed offence under Section 379/34, IPC. ( 4 ) ON perusal of the evidence of PW 2, who is the complainant, I find that during his cross-examination, he has failed to state the plot number of the disputed land as well as the variety of the said land. PW 3 also expresses his inability to say when the sowing operation was done in the disputed land. The deposition of PW 1 through speaks regarding the possession of the land by the complainant, but he has expressed his inability to say regarding the variety of the disputed land and plot number. Further he has stated that he has not seen cutting of paddy crops by the accused persons from the disputed land. But the fact remains that the accused-respondents have cut the paddy from the disputed land and the consistent case of the defence is that they have purchased the plot of land from one Chandan Giri through registered sale deed covering the plot No. 200 and Khata No. 78 and the said document was executed on 24-4-1981 marked as Ext. A. On 24-1-1983, Purushottam Giri and Sashi Bhusan Giri further executed a sale deed in favour of the present respondent No. 1 in respect of the disputed land covering plot Nos. 199 and 200 in Khata No. 78. All these documents were proved being marked as Ext. B though the defence witness No. 1 who is Advocate's Clerk and the scribe. Nothing was brought out by the prosecution in course of cross -examination to disprove the claim of the defence. D. W 2 has scribed the Ext. C which is a sale deed in respect of plot No. 2000 in khata No. 78. PW 3 also reiterated the fact of Kalakar Mohanta purchasing the disputed land and cultivating the same. All these aspects go to show that there is a scramble over the possession of the suit land and both the parties were claiming the land to be under their possession. The complainant is claiming himself to be the real owner and the respondent No. 1 is claiming his possession through the sale deed. All these aspects go to show that there is a scramble over the possession of the suit land and both the parties were claiming the land to be under their possession. The complainant is claiming himself to be the real owner and the respondent No. 1 is claiming his possession through the sale deed. But in order to bring home the charge of theft, the prosecution has, to prove that the accused-respondents had the intention to take away the paddy crops dishonestly from the appellant out of his possession without his consent. So from the evidence, it has to be seen whether the respondents have dishonestly taken away the paddy crops from the possession of the complainant. The evidence of the complainant witnesses show that neither the complainant nor his witnesses are able to describe the plot number of the land in question the variety of land and when the paddy was sown which are the materials to be considered in order to come to a conclusion that the appellants were really in possession of the said land and grown the paddy. In absence of the same, the ingredients under Section 378 of the Indian Penal Code cannot be said to be satisfied. In this case, I find the trial Court is correct in holding that the appellant has failed to prove the case beyond reasonable doubt. Accordingly, I am not inclined to interfere with this Criminal Appeal and the same is dismissed. Appeal dismissed.