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2023 DIGILAW 1175 (JHR)

Jagdish Nayak v. State of Jharkhand

2023-09-20

SANJAY PRASAD

body2023
ORDER : Sanjay Prasad, J. Both the criminal revision being Cr. Revision No.658 of 2017 and Cr. Revision No.511 of 2017 have been heard together and are being disposed of together, since, both have arisen out of common judgment dated 31.01.2017 passed by Sri Vinod Kumar Singh, learned District and Additional Sessions Judge-VIII, Giridih in Cr. Appeal No.11/2014 by which the criminal appeals preferred on behalf of the petitioners, have been dismissed thereby affirming the judgment of conviction and order of sentence dated 24.02.2014 passed by Sri Purushottam Kumar Goswami, J.M., Ist Class, Giridih in Complaint Case No.04 of 2008 corresponding to T.R. No.493 of 2014 by which the petitioners have been convicted for the offence under section 379 of the I.P.C and have been sentenced to undergo R.I for a period of three (03) months and R.I for a period of one month respectively. 2. The case of the complainant, in brief, is that the complainant namely Haro Nayak and one Khago Nayak and Akal Nayak were Khatiyani Raiyats of the land pertaining to Khata no.47, Village-Dharampur and before survey settlement they partitioned their land among themselves and came in possession of respective shares. The land, constituting the place of occurrence, was under ownership and possession of Akal Nayak. It is stated that said Akal Nayak sold out the land and other land to Mosomat Jamuni Telin and her son Balki Nayak vide registered sale deed no.2524 dt.27.05.1940. Later on Balki Nayak died leaving behind two sons namely, Gultan Nayak and Jaideo Nayak and they have been coming in possession over the land since then and paying land revenue to State of Bihar and thereafter to State of Jharkhand. It is alleged that like other harvest season, this season also complainant had planted paddy in the land forming place of occurrence. However, on 27.12.2007 at 8.00 a.m., all accused persons having armed with Lathi, Spear, Hasua by forming an unlawful assembly along with 15-20 other persons came at the place of occurrence and started cutting paddy grown by the complainant. When complainant and witnesses objected then accused person got enraged and they assaulted him by slaps and fists and also pelted stone on the complainant and Witness no.4-Jaideo Nayak and the accused persons had got confined them and threatened to kill if they tried to escape from there. When complainant and witnesses objected then accused person got enraged and they assaulted him by slaps and fists and also pelted stone on the complainant and Witness no.4-Jaideo Nayak and the accused persons had got confined them and threatened to kill if they tried to escape from there. It has been alleged that accused persons took away 50 Mounds of paddy worth Rs.10,000/-. Complainant gave information of occurrence to the police but police, even after assurance, took no step against the accused persons and on 01.01.2008 the police said that they will not take any action and hence the complaint petition was filed. 3. Learned counsel for the petitioners has submitted that the disputed land is a joint family property and the allegation of cutting 50 Mounds of Paddy crops amounting to Rs.10,000/- is false and concocted. It is submitted that the petitioners have been declared joint owners of the said property in question in Eviction Suit No.03 of 2008 passed by Sri Nishikant, learned Additional Munsif-VII, Giridih vide judgment dated 30.06.2018 and the complainant has failed to prove his case who was the plaintiff before the Court below and hence it is submitted that the petitioners may be acquitted for the offence under section 379 of the I.P.C and the impugned judgments and order passed by the learned Courts below may be set aside. 4. On the other hand, learned APP has opposed and submitted that all the petitioners had cut 50 Mounds of Paddy crops worth Rs.10,000/- which is supported from the evidence of the complainant witnesses. On the point of possession of land, learned APP has fairly submitted that both the parties are claiming the land. 5. Perused both the Lower Court Records and considered the submissions of the learned counsel for both the sides. 6. It transpires that the complaint case was filed on 02.01.2008 under sections 147, 148, 149, 323 and 506 of the Indian Penal Code. Thereafter on solemn affirmation and after recording the statements of enquiry witnesses under sections 202 Cr.P.C the Court had taken cognizance under sections 323, 379, 341/34 of the IPC against the petitioners. 7. It transpires that charges were framed against the petitioners under Sections 323, 379, 341/34 of the IPC and to which the petitioners pleaded not guilty and claimed to be tried. 8. 7. It transpires that charges were framed against the petitioners under Sections 323, 379, 341/34 of the IPC and to which the petitioners pleaded not guilty and claimed to be tried. 8. It transpires that during trial the complainant had got examined six (06) witnesses in support of his case, who are as follows:- (i) P.W-1 is Jaideo Nayak (Brother of the complainant, (ii) P.W-2 is Khiru Nayak, (iii) P.W-3 is Raman Nayak (Father of the complainant) (iv) P.W-4 is Gultan Nayak i.e. the complainant, (v) P.W-5 is Md. Kalimuddin and (vi) P.W-6 is Md. Nizamuddin 9. In support of his case, the complaint has got proved the following documents as the Exhibits, which are as follows:- (i) Exhibit-1 is Sale deed no.2524 dated 27.05.1940, (ii) Exhibit-2 is Govt. Rent Receipt no.543164, (iii) Exhibit-2/1 is Govt. Rent Receipt no.1093006, (iv) Exhibit-2/2 is Ekrarnama dated 07.02.1963 and (v) Exhibit-3 is Certified copy of registered sale deed no.7628/1963 dated 05.07.1963. 10. Thereafter the petitioners were examined under section 313 Cr.P.C and the circumstances were put forth before them to which they denied the circumstances put forth before them. 11. Although no defence witness was examined on behalf of the petitioners, but certain documents were marked as the Exhibits, which are as follows : (i) Exhibit-A is Summons for settlement of issues in Eviction Suit No.03/2008 (ii) Exhibit-B is Notice under section 144 Cr.P.C, (iii) Exhibit-C is Certified copy of Khatiyan, (iv) Exhibit-D is Govt. rent receipt to D/S are Govt. rent receipts, (v) Exhibit-D/1 is Govt. rent receipt, (vi) Exhibit-D/2 is Govt. rent receipt, (vii) Exhibit-D/3-Zamindari rent receipt, (viii) Exhibit-D/4-Zamindari rent receipt and (ix) Exhibit-E is the Certified copy of Registered Sale Deed. 12. Thereafter the learned Court below has convicted the petitioners for the offences under sections 379 and 341 of the IPC however, learned court below has acquitted the petitioners for the offence under section 323 IPC. 13. Thereafter the criminal appeal was filed by the petitioners which was dismissed and thereafter both the present Criminal Revision have been filed. 14. On perusal of the facts and the evidence of the witnesses examined, it reveals that the petitioners-defendants and the complainant-plaintiffs of the aforesaid eviction suit (i.e. Eviction Suit No.03 of 2008) were having common ancestors and the petitioners-defendants have been able to show and prove in the court below that they are joint owners of the land in question. 14. On perusal of the facts and the evidence of the witnesses examined, it reveals that the petitioners-defendants and the complainant-plaintiffs of the aforesaid eviction suit (i.e. Eviction Suit No.03 of 2008) were having common ancestors and the petitioners-defendants have been able to show and prove in the court below that they are joint owners of the land in question. 15. It transpires that one supplementary affidavit dated 31.08.2023 has been filed on behalf of the petitioner and the photo copy of the certified copy of the judgment dated 30.06.2018 passed in Eviction Suit No.03 of 2008 by Sri Nishikant, learned Additional Munsif-VII, Giridih, has been enclosed which shows that the complainant-Gulen Nayak was the plaintiff no.1 in Eviction Suit No.03/2008 which was dismissed by the learned Additional Munsif and it has been observed that the defendants-petitioners have succeeded and proved that the suit land was under the joint possession of the plaintiffs i.e. complainant and others and the defendants-petitioners are the co-sharers of the suit land. 16. It transpires that the learned Court below has not properly considered Exhibit-A to Exhibit-E, which are the summon, notice, khatiyan, rent receipt and the certified copy of the Registered sale deed dated 27.03.1940 executed by Akal Nayak with regard to 1.25 Acres of land out of more than 8 Acres of land of Khata No.47. However, the learned Court below has failed to consider Exhibit-E marked on behalf of the petitioner as a defence. The petitioners are the descendants of rented tenant claiming disputed land by virtue of Khatiyan as well ancestral land. 17. It further transpires that the learned Court below has failed to look into the defence of the accused persons (i.e. petitioners) that they have neither grown the paddy crops nor cut the paddy in the field and the witnesses who were examined on behalf of the complainant-O.P. No.2 are the own relatives and family members of the complainant and as such they are the interested witnesses. 18. It transpires that the learned Court below has failed to consider even the rent receipts dated 31.03.1972, 11.02.1971, and 16.03.1963 marked as Exhibit-D, Exhibit-D/1 and Exhibit-D/2 respectively. 19. It transpires that the learned Court below has failed to evaluate Exhibit-A, Exhibit-B and Exhibit-C which were filed on behalf of the petitioners in support of their case that they have a bona fide right over the land in question. 20. 19. It transpires that the learned Court below has failed to evaluate Exhibit-A, Exhibit-B and Exhibit-C which were filed on behalf of the petitioners in support of their case that they have a bona fide right over the land in question. 20. It transpires that the complainant had filed a complaint case on 02.01.2008 for the alleged occurrence taking place on 27.12.2007 against the petitioners for cutting his paddy crops worth approx Rs.10,000/- on 02.01.2008 (sic) after delay of six days on the ground that the police had not lodged the FIR although the complainant had gone before the police on 01.01.2008. Thus, the story propounded by the complainant appears to be absurd and not believable as the complainant has tried to explain by stating that the Court was closed from 21.12.2007 till 01.01.2008. 21. It is alleged that the area of the land belongs to Khata No.47, Plot No.352, Area 1.36 Decimal of land. 22. It transpires that even P.W-1-Jaideo Nayak i.e. the own brother of the informant, has admitted during his cross examination at Para-12 that one civil suit is also pending with regard to the said land in question. Even P.W-2-Khiru Nayak, neighbour of the complainant has admitted during his cross-examination at Para-9 that one civil suit and proceeding under section 144 Cr.P.C is pending. He has also stated that he is not aware as to how the complainant got possession of the land but there is land dispute for around 40-50 years between the parties. 23. P.W-3-Raman Nayak has also admitted during his cross-examination that the complainant-O.P.No.2 and Chandrika Nayak (i.e. petitioner no.1 in Cr. Revision No.511 of 2017) both are co-sharers and P.W-3 is father in-law of the complainant. This witness, after charge, during his further cross-examination, had stated in para-13 that proceeding under section 144 Cr.P.C and one civil suit is pending between the parties. He further could not explain the Tractor number, the name of the owner of the Tractor and has stated that the police has seized the paddy crops. Thus, the evidence of the P.W-3 clearly shows that he is a liar and interested witness and hence he cannot be relied upon. 24. P.W-4 is the complainant-O.P. No.2 and during his examination-in-chief he has tried to support his case of paddy cutting. Thus, the evidence of the P.W-3 clearly shows that he is a liar and interested witness and hence he cannot be relied upon. 24. P.W-4 is the complainant-O.P. No.2 and during his examination-in-chief he has tried to support his case of paddy cutting. However, during cross-examination, after charge, he himself admitted in para-16, 18 and 20 about disposal of the proceeding under section 144 Cr.P.C and pendency of a civil suit. He has also admitted his relationship with P.W-1, P.W-2 and P.W-3. He has also admitted that Chandrika Rai is the common ancestor of one Horo Nayak. P.W-4 in his evidence has admitted that the land of Khata No.47 was recorded in Khatiyan in the name of Horo Nayak, Akal Nayak and Khago Nayak but Akal Nayak and Khago Nayak have got no issue. Thus, the admission between the complainant and Chandrika Nayak and other accused persons are admitted from the own evidence of the complainant-O.P. No.2. 25. P.W-4 has also admitted that he had gone to the Police Station next day after the occurrence and the police has arrived on the third day and had seen the occurrence and sealed the place of occurrence but the police had not sealed the paddy which is contradicted from the evidence of P.W-3, namely Raman Nayak who is the father-in-law of the P.W-4, who had stated that the police had sealed the paddy crops. Thus, the evidence of P.W-4 is not reliable. 26. P.W-5 is Md. Kalimuddin, who is an Advocate Clerk and he has proved the Registered Kebala dated 27.05.2004 executed by Akal Nayak on 27.05.1940 which was in custody of Akal Nayak. Thus, P.W-5 is a formal witness and the sale deed has not been validly proved. 27. P.W-6 is Md. Nizammudin, who is also an Advocate Clerk in Civil Court, Giridih and has proved the agreement dated 07.02.1963 marked as Exhibit-2/2. During cross-examination, he has admitted that he is not aware about the contents of the agreement. Thus, the evidence of P.W-6 is also not relevant. 28. It has been held by Hon’ble Supreme Court in the case of Suvvari Sanyasi Apparao and Anr. vs. Boddepalli Lakshminarayana and Anr. reported in AIR 1962 SC 586 at para 9 as follows : “Para-9:-We are not concerned in this case with the declaration under the Press and Registration of Books Act. 28. It has been held by Hon’ble Supreme Court in the case of Suvvari Sanyasi Apparao and Anr. vs. Boddepalli Lakshminarayana and Anr. reported in AIR 1962 SC 586 at para 9 as follows : “Para-9:-We are not concerned in this case with the declaration under the Press and Registration of Books Act. A declared keeper of the Press is not necessarily the owner thereof so as to be able to confer title to the Press upon another. The ownership of the Press is a matter of the general law and must follow that law. Whether Pappala Chinna Ramadasu was not only the declared keeper of the Press but also its owner can only be effectively decided by the Civil Court. For purposes of Criminal law, the evidence prima facie pointed to a transfer of the Press by Pappala Chinna Ramadasu and Govindachari to Kuna Appala Naidu. The evidence prima facie also established that the appellants had taken possession of the Press under a bona fide claim of right, and that, in our opinion, was sufficient to dispose of the present case. The Additional strict and Sessions judge, Srikakulam, had rightly held that the matter was for the decision of the Civil Court, and that this was not a case of theft under the Indian Penal Code, and had rightly directed the acquittal of the appellants. The learned Judge of the High Court considered the declaration by Pappala Chinna Ramadasu, which continued unchanged, as sufficient to prove an offence of theft. In our opinion, in the circumstances and in the light of the finding given by the District and Sessions Judge with regard to Ex. D-2, it was necessary to go further to see what right Pappala Chinna Ramadasu had to the Press at all. If this had been considered, the learned Judge would have seen that there was some doubt about the right of Pappala Chinna Ramadasu to transfer the Press in 1955 to Boddepalli Lakshminarayana, and further that the defence that the appellants took possession of the Press under a bona fide claim of right was a good defence entitling them to an acquittal.” 29. It has been held by Hon’ble Supreme Court in the case of Chandi Kumar Das Karmarkar and Anr. It has been held by Hon’ble Supreme Court in the case of Chandi Kumar Das Karmarkar and Anr. vs. Abanidhar Roy reported in AIR 1965 SC 585 at para 5, 6, 7 and 10 as follows : “Para-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, D/-5-10-1961, S. Sanyasi Apparao v. Boddepalli Laksminarayana, 1962 (Supp) 1 SCR 8 : ( AIR 1962 SC 586 ) observed as follows: "It is settled law that where a bond 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 pretence but a fair pretence, not a complete absence of claim but a bonafide 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 pretence 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. Para-6:-Niyogi J. in his judgment also referred to some of the decisions of the Calcutta High Court and we find ourselves in particular agreement with the following statement of the law in Hamid Ali Bepari v. Emperor, ILR 52 Cal 1015 : ( AIR 1926 Cal 149 ): "It is not theft if a person, acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same . . . . . . . . . . . removes such property from the possession of another." Para-7:-The question that arises is whether the finding of the Additional Sessions Judge, Burdwan that there was no dishonest intention could be said to be wrong and required to be set aside? In this case the complaint filed the complaint against 21 persons charging them with numerous offences one of them being theft. The Magistrate summoned only three persons and framed a charge under S. 379, Indian Penal Code. One of the three persons was acquitted and the two appellants were convicted. It is clear that the case was much exaggerated by the complainant. Theft was said to have taken price on the 13th and 14th January, 1958. There was hardly any evidence about the occurrence on the first date and even the evidence in respect of the second day was slender and interested. But as it has been believed we do not say more and accept the finding that fish were caught by the appellants that least on one day. The accused no doubt denied catching fish and this might have shown that they had a dishonest intention but they also brought evidence to prove alternatively that after clearing the tank of weeds they had caught fish for some religious ceremony not on the two dates alleged but four days earlier. This was said to have been done under a bona fide claim of right and their plea was accepted by the Additional Sessions Judge, Burdwan. Para-10:-In our opinion there was an absence of the animus furandi and the circumstances bring this case within the rule that where the taking of moveable property is in the assertion of a bond fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft. In this view of the matter we are of opinion that the acquittal of the appellants ought not to have been set aside. We accordingly allow the appeal and setting aside the conviction of the appellants order their acquittal. The fines if recovered shall be referred to them.” 30. In this view of the matter we are of opinion that the acquittal of the appellants ought not to have been set aside. We accordingly allow the appeal and setting aside the conviction of the appellants order their acquittal. The fines if recovered shall be referred to them.” 30. In view of the law laid down by Hon’ble Supreme Court, it is well settled that in a case of bona fide land dispute, no offence of theft of paddy crops is made out as both the sides i.e. the complainant and the accused persons (i.e. the petitioners) are the co-sharers of the land in question. 31. In view of the above, the judgment dated 31.01.2017 passed by Sri Vinod Kumar Singh, learned District and Additional Sessions Judge-VIII, Giridih in Cr. Appeal No.11/2014 and the judgment of conviction and order of sentence dated 24.02.2014 passed by Sri Purushottam Kumar Goswami, J.M., Ist Class, Giridih in Complaint Case No.04 of 2008 corresponding to T.R. No.493 of 2014, are set aside and the petitioners namely Jagdish Nayak, Biru Nayak, Jitendra Nayak, Hiro Nayak, Kuldip Nayak, Rajesh Kumar, Deepak Kumar, Chandrika Nayak, Mangar Nayak, Ramdeo Nayak, Sohwa Devi, Indiya Devi, Ambiya Devi and Paro Devi are acquitted for the charges levelled against them and the petitioners namely Jagdish Nayak, Biru Nayak, Jitendra Nayak, Hiro Nayak, Kuldip Nayak, Rajesh Kumar, Deepak Kumar, Chandrika Nayak, Mangar Nayak, Ramdeo Nayak, Sohwa Devi, Indiya Devi, Ambiya Devi and Paro Devi are discharged from the liability of their respective bail bonds. 32. Thus, both the Cr. Revision No.658 of 2017 and Cr. Revision No.511 of 2017 are allowed. Let the L.C.R. be sent back to the learned court below at once.