Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 783 (ORI)

Muralidhar Nayak v. Dinabandhu Samantaray

2008-09-02

B.K.PATEL

body2008
Judgement Criminal Appeal No. 11 of 1993 preferred against the judgment and order dated 17-5-1993 passed by the learned J.M.F.C. Kendrapara in I.C.C. Case No. 223/ 1990/Trial No. 148/1992 convicting the petitioners for commission of offences under Sections 379/34 of the Indian Penal Code (in short, the 'IPC') but releasing them under Section 3 of the Probation of Offenders Act having been dismissed, the petitioners accused persons have preferred this revision ICC Case No. 223 of 1990 was filed by the respondent 1-complainant. 2. The alleged occurrence took place on 23-8-1990. Allegation in the case relates cutting and removal paddy from the case land comprising of two plots in respect of which Ext. 1, registered sale deed dated 19-7-1931 had been executed by accused Muralidhar's father late Telei Nayak in favour of complainant's father's elder brother Baikunthanath Choudhury. Complainant's case is that after purchase of the case land, there was a partition between Baikunthanath and his co-sharers including the complainant's father Hare Krushna Samantray and the case land was allotted to the share the complainant's father. After Hare Krushna Samantray's death, by virtue of another partition under the partition deed Ext. 2, the case land was allotted to the share of the complainant. In such circumstances, complainant was the sole owner in exclusive possession over the case land in respect of which ROR Ext. 6 was issued in the names of the complainant and his co-sharers. The complainant also paid land revenue in respect of the case land and obtained rent receipts under Ext. 3 series. In the year of occurrence the complainant had raised paddy crop over the case land by performing all agricultural operations. However, on the date of occurrence the accused persons forcibly cut and removed paddy crop despite protest by the complainant. As the complainant's written report lodged in the police station did not yield any result, he filed the complaint case. The accused persons took the plea of denial. Their specific plea was that registered sale deed Ext. 1 was never acted upon and the case land continued to be owned and possessed by the accused persons for which in the current settlement ROR Ext. 'D' the case land was recorded in their names. Their further plea was that they paid land revenue and raised crop in the case land during the year of occurrence. 1 was never acted upon and the case land continued to be owned and possessed by the accused persons for which in the current settlement ROR Ext. 'D' the case land was recorded in their names. Their further plea was that they paid land revenue and raised crop in the case land during the year of occurrence. The accused persons also claimed to have reaped and harvested paddy from the case land not on the date of occurrence but on another date during the year of occurrence. In order to substantiate the allegations complainant examined five witnesses including himself as P.W. 3 and his son as P.W. 4. Three independent witnesses were examined as P.Ws. 1, 2 and 5. Complainant also relied upon documents marked Exts. 1 to 9, Only one witness D.W. 1 was examined on behalf of the accused persons who also relied upon documents marked Exts. 'A' to 'H'. The learned trial Magistrate on an analysis of the evidence on record held that though current settlement ROR Ext. 'D' issued in the names of the accused persons raised presumption of possession of the case land in their favour, the evidence of P.Ws. 1 to 5 clearly showed that the complainant had sown and raised paddy during the years of occurrence. In the background of such finding the accused persons were found guilty of commission of offence under Section 379, IPC read with Section 34, IPC. 3. The learned Appellate Court on reappraisal and re-appreciation of the evidence held that the presumption raised by current settlement ROR Ext. 'D' was sufficiently rebutted by Ext. 2 partition deed, Ext. 3 series rent receipts and Exhibit 9 order under Section 145, Cr. P.C. The case land was transferred under sale deed Ext. 1. Though the parties were embroiled in litigations under Sections 144 and 145 of the Cr. P.C. to establish their respective claim over the case land, oral evidence of the witnesses conclusively proved that the complainant had raised paddy crop in the case land during the year of occurrence and the accused persons cut and removed the paddy crop as alleged. 4. P.C. to establish their respective claim over the case land, oral evidence of the witnesses conclusively proved that the complainant had raised paddy crop in the case land during the year of occurrence and the accused persons cut and removed the paddy crop as alleged. 4. In assailing the judgments and orders of the Courts below, it was strenuously contended on behalf of the petitioners that the evidence on record revealed that the accused persons had bona fide claim over the case land and the parties had approached for adjudication of their respective claim by instituting proceedings under Sections 144 and 145, Cr. P.C. It was contended that recording of the names of the accused persons in the current settlement ROR indicated that the accused persons were in possession over the case land at the time of preparation of the ROR. The accused persons also paid land revenue under rent receipts Exts. 'F', 'G' and 'H'. Relying upon the decisions reported in 1965 (31) CLT 749 (Sita Bewa v. Bimbadhar Rout) and 2003 (Supp) OLR 830 (Ashis v. Jitu), it was argued that it is well settled that when a bona fide claim of right exists it constitutes a good defence in a prosecution for theft of crops from the disputed land. 5. In reply, it was submitted that upon appreciation and reappreciation on evidence on record both the learned Courts below have categorically held that so called bona fide claim of right of the accused persons over the case land was nothing but colourable pretense to grab the case land which had been sold by their predecessor long back to the predecessor of the accused persons. It was contended that the complainant adduced unimpeachable evidence to conclusively establish that the case land belonged to and was in possession of the complainant and that the accused persons forcibly cut and removed paddy crop sown and raised by the complainant during the year of occurrence. 6. There is little scope for a revisional Court to embark upon reappreciation and reappraisal of evidence on record to examine the sustainability of concurrent findings of the trial and appellate Courts. The accused persons do not dispute execution of sale deed Ext. 1. Their plea that the sale deed was not acted upon is not supported by any evidence. On the contrary, the registered partition deeds and ROR prepared after execution of sale deed Ext. The accused persons do not dispute execution of sale deed Ext. 1. Their plea that the sale deed was not acted upon is not supported by any evidence. On the contrary, the registered partition deeds and ROR prepared after execution of sale deed Ext. 1 indicated that the family of the accused persons dealt with the case land as their own and the case land was also recorded in their names. They also used to pay land revenue under Ext. 3 series rent receipts. No doubt the case land was recorded in the names of the accused persons in the current settlement ROR. However, the complainant objected to such entry by the settlement authorities and challenged such recording by approaching the Commissioner, Land Records, Orissa by filing revision under Ext. 7. He also instituted proceedings under Sections 144 and 145, Cr. P.C. against the accused persons. Upon analysis of the entire gamut of evidence adduced from both the sides and specifically taking note of contention on behalf of the accused persons that their claim over the case land is bona fide, both the Courts below have concurrently held that during the year of occurrence the complainant had sown and raised paddy crop over the case land. Recording of the names of accused persons in the current settlement ROR had no doubt the effect of raising a presumption of title and possession in favour of the accused persons. However, such rebuttable presumption was found to have been rebutted by evidence, both oral and documentary, adduced by the complainant. In spite of the plea of denial to have cut and removed paddy crop from the case land on the date of occurrence taken by the accused persons, the evidence of not only the complainant P.W. 3 and his son P.W. 4 but also as many as three independent witnesses to the contrary has been accepted to be reliable by both Courts below. Upon perusal of the evidence on record, the findings do not appear to be perverse or unreasonable. Both the Courts below have assigned cogent reasons to arrive at the conclusion. The accused persons failed to establish that their claim over the case land was bona fide. Upon perusal of the evidence on record, the findings do not appear to be perverse or unreasonable. Both the Courts below have assigned cogent reasons to arrive at the conclusion. The accused persons failed to establish that their claim over the case land was bona fide. In such circumstances, there is no scope for the petitioners to avail assistance from the decisions relied upon by the learned counsel inasmuch as principles laid down in the decisions presuppose existence of bona fide claim of right over the disputed land. In such circumstances, there appears no ground to interfere with the judgments and orders passed by both the Courts below. 7. In view of the above discussion, the revision stands dismissed. Petition dismissed.