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2019 DIGILAW 1823 (JHR)

Arjun Ram v. State of Jharkhand

2019-11-05

ANIL KUMAR CHOUDHARY

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JUDGMENT : Anil Kumar Choudhary, J. 1. By the Court.-Heard learned counsel for the petitioners and learned A.P.P. appearing for the State. No one turns up on behalf of the opposite party No. 2 in spite of repeated calls. 2. Since both the revision petitions are directed against the common judgment dated 7.5.2002 passed by the 6th Additional Sessions Judge, Giridih in Criminal Appeal No. 52 of 2001 and 34 of 2001 and both the said appeals arose out of the common judgment passed in Complaint Case No. 1087 of 2018 by the S.D.J.M., Giridih dated 2.8.2001, hence, both these revision petitions are disposed of by this common judgment. 3. The brief facts of these cases is that the complainant claims to be the owner of the land bearing plot No. 3016 by way of inheritance as her predecessors in interest acquired the said land by way of mutual partition. The allegation against the revision petitioners is that they have forcibly harvested the paddy crop from the said land of the complainant worth Rs. 200/-. Charges for the offences punishable under section 379/34 of the Indian Penal Code were framed against the appellants. 4. During the trial, the complainant examined eight witnesses while three witnesses were examined on behalf of the defence. The C.W. 1-Bholanath Pandey, C.W. 2-Binod Pandey, C.W. 5-Makhan Turi and other witnesses of the prosecution have stated about the cutting of the paddy by the accused persons which were cultivated on the land of the complainant. 5. C.W. 3-Jaideo Rai has also stated about the title of the place of occurrence having been acquired by the complainant by partition between Mathura Prasad and the complainant. 6. C.W. 4-Mathura Turi is a post occurrence witness as he reached the place of occurrence after the occurrence. 7. C.W. 6 is the complainant herself. She has supported the averments made in the complaint. The C.W. 6-complainant admitted in para-29 of her deposition that it is a fact that the accused persons have taken the land from the elder brother of her husband but in subsequent paragraphs she has stated that the accused persons are in possession of the land for which the elder brother of her husband registered the sale-deed which was executed by her husband and her husband's elder brother of area 22½ decimals. 8. C.W. 7-Baghamber Mohan Singh and C.W. 8-Bipin Kumar Sinha are the formal witnesses. 8. C.W. 7-Baghamber Mohan Singh and C.W. 8-Bipin Kumar Sinha are the formal witnesses. C.W. 7-Baghamber Mohan Singh has proved the rent receipts and signature of the Karamchari over the same while C.W. 8-Bipin Kumar Sinha has proved the complainant's signature on the complaint and her advocate. 9. The witnesses of the revision petitioners/accused persons on the other hand stated that the revision petitioners/accused persons have not harvested the paddy crop of the complainant rather they have harvested the crop 'grown in their own paddy field and also informed the police. 10. D.W. 1-Loki Mahto has stated about the place of occurrence land being sold by Mathura Lal to Kali Devi wife of Dhalo Ram while the complainant is the witness of the same. He has further stated that the complainant was not coming over the place of occurrence land since the year 1966 whereas the alleged date of occurrence is 16.11.1988. 11. D.W. 2-Kali Mahto has also stated that Mathura Lal executed the sale-deed in favour of Dhalo Ram in the year 1966 and also constructed a boundary over the said land and after execution of the sale-deed, Dhalo Ram had come in possession over the said land. 12. D.W. 3-Rarndeo Yadav is a formal witness who has proved the rent receipts. 13. Learned trial court after considering the evidence in the record held the revision petitioners/accused persons guilty for the offence punishable under Section 379/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment of one year each for the offence punishable under Section 379/34 of the Indian Penal Code. 14. The learned appellate court framed the following three questions for consideration:- (i) Whether the complainant is the owner of the land in question? (ii) Whether crop was cultivated by the complainant? (iii) Whether the accused persons have harvested standing paddy crops? 15. The learned appellate court observed that though the complainant is trying to make out a case of oral partition but she could not prove any document in support of the same and also considered that the defence has admitted the factum of partition between Mathura Prasad and Bishwanath Prasad and thus, came to a conclusion that the ownership of the complainant over the disputed land is proved. 16. 16. The learned first appellate court observed that there is no cross-examination of the witnesses examined by the complainant regarding the paddy being planted by the complainant and also there is no cross-examination of the complainant witness Nos. 1 to 6 and the accused persons have also not stated in their cross-examination under Section 313 Cr.P.C. that they have not grown paddy on the said land. Hence, came to a conclusion that the paddy in question was grown by the complainant and also considered that it is the case of the defence that they have harvested the paddy crop on their own land. Hence, it was observed by the learned appellate court that the evidence in the record establishes that the appellants have harvested the paddy from the disputed land. The learned appellate Court while upholding the conviction of the revision petitioners reduced the sentence of one year to simple imprisonment for one month as the same was excessive. 17. It is submitted by Mr. Ashim Kumar Sahani-the learned counsel for the petitioners that the learned courts below failed to take into consideration that the complainant failed to prove that she is in possession of the land in question and she grew paddy crop; which was harvested by the petitioner. It is further submitted by the learned counsel for the petitioners that the learned courts below erred in not taking into consideration the Ext. A-rent receipts produced by the petitioners and also erred by ignoring the registered sale-deed executed in favour of Kali Devi mother of Arjun Ram and grandmother of the petitioner Balo Ram. It is next submitted by the learned counsel for the petitioners that in para-28 of her cross-examination the C.W. 6 categorically stated that at the time of incident, the accused persons stated that they were carrying their own paddy. It is next submitted by the learned counsel for the petitioners that in para-28 of her cross-examination the C.W. 6 categorically stated that at the time of incident, the accused persons stated that they were carrying their own paddy. It is further submitted that the C.W. 6-complainant admitted in para-29 of her deposition the fact that the accused persons have taken some land from the elder brother of her husband and in the subsequent paragraphs she has stated that the accused persons are in possession of the land for which the elder brother of her husband registered the sale-deed which was executed by her husband and her husband's elder brother which is of area 221/2 decimals and the learned trial court as well as the appellate court failed to appreciate this fact that this admission of the C.W. 6 is sufficient to show that there was a bona fide land dispute between the parties more so because in the complaint, the place of occurrence has been described as part plot of 0.11½ acre without boundary or without having any map or without any other information sufficient enough to specifically identify the place of occurrence land. So, it is submitted that the learned courts below ought to have held that the description of the place of occurrence land is vague and in view of admission of the complainant herself who has been examined as C.W. 6 that the petitioners are in possession of 221/2 decimals of land out of the same plot as that of the place of occurrence land; the learned courts below ought to have acquitted the revision petitioners by giving them the benefit of doubt. It is further submitted by the learned counsel for the petitioners that the learned appellate court erred by coming to a conclusion that in the partition, the place of occurrence land of which there is only a vague description insufficient to specifically identify it; in absence of any boundary or any map, fall to the share of the ancestors of the complainant; though there is no evidence in this respect in the record. Hence, it is submitted by the learned counsel for the petitioners that the impugned judgment of conviction be set aside and the revisions petitioners be acquitted of the charges at least by giving them the benefit of doubt. 18. Ms. Hence, it is submitted by the learned counsel for the petitioners that the impugned judgment of conviction be set aside and the revisions petitioners be acquitted of the charges at least by giving them the benefit of doubt. 18. Ms. Lily Sahay, the learned A.P.P. appearing for the State defended the impugned judgment passed by the learned courts below and submitted that the evidence in the records is sufficient to establish the charge for the offence punishable under Section 379/34 of the Indian Penal Code and both the courts below having rightly done so, the same ought not be interfered in exercise of the revisional jurisdiction of this Court. 19. It is a settled principle of law that where a 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. 20. The Hon'ble Supreme Court of India in the case of Suvvari Sanyasi Apparao and Another vs. Boddepalli Lakshminarayana and Another reported in AIR 1962 Supreme Court 586 has held as under in paragraph-8:- "8. In this statement of the law, the learned Judge was, with respect, clearly in error. This is what the learned Judge observed: "Further, to a charge of theft, the plea that the property was removed under a bona fide claim of right would not avail. For example, a person who bona fide believes that the fountain pen on his neighbour's desk is his, has no right in law to trespass into the neighbour's house and snatch away the pen without the latter's consent." The first of the statements is certainly not the law. It is settled law that where a 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. In 2 East P. C.P. 659, the law was stated a long time ago thus: "If there be in the prisoner any fair pretense of property or right, or if it brought into doubt at all, the court will direct an acquittal." And according to 1 Hale P.C. 509, the best evidence is that the goals were taken quite openly. In 2 East P. C.P. 659, the law was stated a long time ago thus: "If there be in the prisoner any fair pretense of property or right, or if it brought into doubt at all, the court will direct an acquittal." And according to 1 Hale P.C. 509, the best evidence is that the goals were taken quite openly. The law thus stated by East and Hale has not been altered in modern times. There are numerous cases in which Courts in India have recognised a bona fide claim of right as a defence to the charge of theft. See Ratanlal, Law of Crimes, 19th Ed. p. 933." (Emphasis supplied) 21. The Hon'ble Supreme Court of India in the case of Chandi Kumar Das Karmarkar and Other vs. Abanidhar Roy reported in AIR 1965 SC 585 has held as under in paragraphs-4 and 5:- "4. The offence of theft consists in the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it the offence of theft is not complete. :......" "5. Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. This court in Criminal Appeal No. 81 of 1961, Dt. 5.10.1961, S. Sanyasi Apparao v. Boddepalli Lakshminarayana, (1962 Supp. (1) SCR 8 : AIR 1962 SC 586 ) observed as follows: "It is settled law that where a 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 of colour of a legal right." By the expression "colour of a legal right is meant not a false pretense but a fair pretense, not a complete absence of claim but a bona fide claim, however weak. An act does not amount to theft, unless there be not only no legal right but no appearance of colour of a legal right." By the expression "colour of a legal right is meant not a false pretense but a fair pretense, not a complete absence of claim but a bona fide claim, however weak. This Court observed in the same case that the law was stated in 2 East PC 659 to be: "If there be in the prisoner any fair pretense of property or right, or if it be brought into doubt at all, the court will direct an acquittal." and referred to 1 Hale PC. 509 that "the best evidence is that the goods were taken quite openly". The law stated by East and Hale has always been the law on the subject of theft in India and numerous cases decided by Indian Courts are to be found in which these principles have been applied." (Emphasis supplied) 22. In the case of Ram Ekbal Rai and Others v. Jaldhari Pandey, AIR 1972 SC 949 the Hon'ble Supreme Court of India upsetting the conviction of two subordinate courts held that where the documents indicate that there was from the inception a dispute about the land between the parties and the harvesting party was under the bona fide belief that it was entitled to possession of the land, there was, therefore, no question of having them trespassed the said land. 23. Now coming to the facts of this case, I have no hesitation in holding that the conclusion of the learned appellate court that mere admission of partition between the husband of the complainant and his brother by the revision petitioners/accused persons amounts to an admission that the place of occurrence fell to the share of the husband of the complainant in the partition with his brother is erroneous.- 24. Both the courts below failed to consider the fact that the description of the place of occurrence land is a vague one. Though admittedly, the place of occurrence land is part plot, neither any boundary of the same nor any map of the same nor any other sufficient information to specifically identify the said part plot of a large plot of land the number of which is mentioned in the complaint nor there is any evidence in the record to show the exact location of the said part plot. It is needless to mention that it was incumbent upon the complainant in a case like this for prosecution of harvesting paddy from a part plot of land the number of which plot has been mentioned in the complaint, to describe the part plot, either with boundary of the same or any map of the same or any other sufficient information to specifically identify the said part plot of a large plot of land the number of which is mentioned in the complaint. 25. As rightly submitted by the learned counsel for the petitioners, the C.W. 6-complainant has categorically admitted in para-29 of her cross-examination that the petitioners have the possession over 221/2 decimals of land out of the said plot the number of which has been mentioned in the complaint having purchased the land from her husband and the elder brother of her husband. It is the specific case of the petitioners that they were harvesting paddy from their own land. In this backdrop, I have no hesitation in holding that in view of such overwhelming evidence, the failure on the part of both the courts below to hold that at least there exists an appearance or colour of a legal right of the petitioners in respect of the vaguely described place of occurrence land; amounts to an illegality and this Court is of the considered view that this is a fit case where in view of the evidence in the record, the revision petitioners be acquitted of the charge for the offence punishable under Section 379/34 of the Indian Penal Code at least by giving them the benefit of doubt. 26. Accordingly, the conviction and sentence of the revision petitioners made by both the courts below is set aside and the revision petitioners namely Arjun Ram and Balo Ram are acquitted by giving them the benefit of doubt. The revision petitioners namely Arjun Ram and Balo Ram are on bail. In view of their acquittal, they are discharged of the liabilities of their bail bonds. 27. Let the lower court record along with a copy of this judgment be sent to the court concerned forthwith.