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2019 DIGILAW 146 (ORI)

Akshya Kumar Lenka v. Bharat Charan Lenka

2019-02-20

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. Being aggrieved by the order dated 01.07.1994 passed by the learned S.D.J.M. Kendrapara acquitting the respondents (accused persons) of the offence under sections 447/379, I.P.C. the complainant as the appellant has filed this appeal. 2. The case as laid in the complaint in brief is that the parties were in litigating terms in Title Suit No. 116 of 1988 where in one Misc. Case No. 230 of 1988, an interim order had been passed appointing the appellant and his father as receivers for the purpose of harvesting the standing paddy crops in the year 1989 over the disputed property in presence of the accused persons. It is stated that since the complainant and his father had raised paddy crops in that year over the land in question, they had been so appointed by the Civil Court as the receivers to harvest the paddy crops in that relevant year. The allegation stands that on 30.11.1989, the accused persons went over the said disputed land holding deadly weapons and forcibly cut and removed the paddy crops. The complainant when protested, they did not pay any heed to the same and on the contrary accused-Bharat chased the complainant to assault by means of a Tenta and gave serious threat to kill him. It is said that the accused-Bharat then left that place by giving further threat to the complainant to assault in case, he would raise any complaint. It is the case of the complainant that all the accused persons together cut and removed the paddy crops grown by him on the land, under sabak Plot No. 156 and 163 corresponding to hal Plot No. 58 measuring about Ac. 0.12 decimals and caused loss to the complainant to the tune of Rs. 1200/-.The defence is of complete denial. 3. The trial court having framed charge for commission of offence under section 447/379/ 506, I.P.C. proceeded to record the evidence. The complainant having examined four witnesses, the accused persons have examined two. Furthermore the complainant has proved the certified copy of the orders of the Civil Court marked as Exts.1 and 2 and the defence has proved the certified copy of the orders of the appellate court marked as Exts.A and B. 4. The complainant having examined four witnesses, the accused persons have examined two. Furthermore the complainant has proved the certified copy of the orders of the Civil Court marked as Exts.1 and 2 and the defence has proved the certified copy of the orders of the appellate court marked as Exts.A and B. 4. The trial court formulated the points for determination as to the happening of the alleged incident and the role of these accused persons said to have been played therein. It appears that having taken up the exercise of analysis of the evidence in great detail, the trial court has found the complainant to have not been established his case beyond reasonable doubt against the accused persons. Accordingly, they have been acquitted of the charges. 5. None appears on behalf of the appellant. Mr. S.K. Nayak, learned counsel appearing for the respondents has been heard. I have perused the judgment of the trial court and have gone through the depositions of the witnesses examined by the parties as well as the documents Exts.1, Exts.2 and Exts.A and Exts.B. 6. It is the settled position of law that in the absence of any manifest illegality, perversity or miscarriage of justice, the order of acquittal passed by the trial court may not be interfered with by the High Court in exercise of appellate jurisdiction. Bindheswari Pr. Singh vs. State of Bihar, (2002) 6 SCC 650 , Rathinam vs. State of Tamil Nadu, (2011) 11 SCC 140 and Sunil Kumar Sambhudayal and Gupta vs. State of Maharashtra, (2010) 13 SCC 657 . It has been recently held in case of Madathil Narayanan vs. State of Kerala, (2018) 14 SCC 513 that if the trial court takes the view that the accused deserves to be acquitted on the basis of evidence on record, the same cannot be reversed unless and until, it is found that the same is vitiated on account of gross perversity and erroneous appreciation of evidence on record. 7. Admittedly, Title Suit No. 116 of 1988 has been filed by the accused-Bharat against the complainant and others and the subject matter of the same is the land over which the incident is said to have taken place. 7. Admittedly, Title Suit No. 116 of 1988 has been filed by the accused-Bharat against the complainant and others and the subject matter of the same is the land over which the incident is said to have taken place. The land, in question, being claimed to be the ancestral property of the parties, accused Bharat claims to be the son of Hrudananda and as such being a member of the joint family has asserted his share over the same in that very suit for partition. The claim of the complainant is that the said accused-Bharat has no share in the property. It is further stated by the complainant that one power of attorney has been obtained from his father, Hrudananda by playing fraud. The complainant, on the other hand, says that accused-Bharat is the son of one Bina Rout. In that view of the matter, without adjudication of the issues, cloud covers on the claim of the complainant that he is the exclusive owner in possession of the land in question as well as the claim of accused Bharat having a share over that land. By the time of initiation of the criminal case, the competing claims had not been adjudicated by the appropriate forum and, in fact, that was pending adjudication. The complainant when says that he being appointed as a receiver to harvest the paddy crop from the land in question, was not allowed to do that by the accused persons and rather, it is they who forcibly cut and removed the paddy crops from the land, no such document has been proved to show that said incident had been reported to the court which had appointed the receiver for that. The evidence adduced by the complainant by examining the witnesses on being examined do not go to establish the fact beyond reasonable doubt that after the appointment of the complainant and his father as the receivers to harvest the paddy crops from the land in question, these accused persons forcibly entered into the land and removed the standing paddy crops in committing the offence under section 447 and 379, I.P.C. 8. The trial court has gone through the evidence of all the witnesses and it appears that on thread bare discussion of the same, it has found the complainant to have not been successful in proving his case beyond reasonable doubt; that these accused persons being aware of the order that they have no authority to enter into the land and cut and remove the standing paddy crops had done so. Furthermore, since the complainant as per his status as one of the receivers has also not led any evidence to show that such overt-act on the part of these accused persons had been brought to the notice of the concerned court which had appointed the complainant as receiver seeking appropriate action, that goes to raise suspicion as to the happening of the incident as placed. In view of that the very foundation of the case of the complainant gets pushed into the thick clouds blurring the vision of the Court to look at the case of the complainant clearly. Had it been the case, the complainant should have informed the court being certainly answerable for not cutting and removing the paddy crops as had been so directed by the court which being not shown, justifies the drawal of adverse inference. 9. In view of the aforesaid discussion and reasons, this Court finds no such infirmity with the finding of the learned trial court in acquitting the accused persons calling for interference within the scope and ambit of this appeal. 10. In the result, the CRA fails and is hereby dismissed.