Ashis Kumar Ray vs Jitu Andia and Others

A.S. Naidu, J.—The order passed by the learned Additional Sessions Judge, Balasore in Criminal Appeal No. 29/41 of 1985/84 reversing an order of conviction of the Respondents passed by the learned C.J.M., Balasore in I.C.C. No. 579 of 1980 is impugned in this Criminal Appeal.

The Respondents faced trial for alleged commission of offences Under Sections 379/426 I.P.C.. It is alleged that they cut and removed the paddy crops dishonestly from the land belonging to the complainant by trespassing into his land damaging the fence on 14.11.80 at about 4.00 A.M..

On the basis of a complaint filed, I.C.C. No. 579 of 1980 was registered in the Court of learned C.J.M., Balasore.

In order to prove its case, the prosecution examined as many as four witnesses. The learned trial Court held the accused persons (Respondent Nos. 1 to 10) guilty under Sections 379 and 426 I.P.C. and sentenced them to pay a fine of Rs. 150/- each, in default, to undergo rigorous imprisonment for six months and to pay a fine of Rs. 30/- each, in default, to undergo rigorous imprisonment for fifteen days each on the aforesaid counts respectively and further ordered u/s 357, Code of Criminal Procedure to pay a compensation of Rs. 310/- on realisation of the fine amounts to the Appellant (complainant-Respondent No. 2) after the appeal period was over. The said order of conviction was challenged by accused-Respondent Nos. 1 to 10 before the learned Additional Sessions Judge, Balasore in Criminal Appeal No. 29/41 of 85/84. The appellate Court after examining the evidence, both oral and documentary, came to the conclusion that the prosecution had utterly failed to prove its case beyond all reasonable doubts. It was also observed that as there was a plea of bona fide claim of right, by the accused persons in respect of the disputed land, they were entitled to acquittal. The reversing order passed by the learned Additional Sessions Judge is under challenge in this appeal preferred by the complainant.

Mr. Sinha forcefully submitted that the appellate Court has not properly appreciated the facts and the evidence on record. It is also submitted that the conclusions arrived at are contrary to the materials available and the evidence as well as the judgment suffers from the vice of non-consideration of materials available on record. It is also submitted that it is a fit case where the order of acquittal should be set aside.

The learned Counsel for the Respondents at the other hand submitted that the appellate Court has taken into consideration all the evidence, both oral and documentary. The conclusions arrived at by the lower Appellate Court are in consonance with the evidence on record. The Appellate Court has not committed any material irregularity or illegality calling for interference by this Court.

After hearing the learned Counsel for the parties, I once again scrutinised the evidence, both oral and documentary. It appears that there was a tussle for possession of the aforesaid land. The dispute was also with regard to the right, title and possession vis-a-vis the disputed land inter se between the parties. Both the parties claimed to be the rightful owners of the disputed land and claim their bona fide right. The lower appellate Court has come to the right conclusion that Respondent Nos. 1 to 10 had cut and removed the paddy on the date of occurrence claiming the disputed land to be their own. Thus the allegations that they committed theft in respect of crops over their own land cannot be accepted.

After going through the evidence, I find that the lower Appellate Court has not committed any illegality. The findings arrived at are just and proper and in consonance with the evidence available on record. That apart the incident occurred as long back as in the year 1980. Twenty three years have passed in the meantime. The order of acquittal was passed in the year 1984. After such a long lapse of time, I feel, it will not be just and proper to interfere with the order of acquittal. I find no merit in the Criminal Appeal which is accordingly dismissed.