Balchand Bhadani vs The State of Bihar, Jualal Mukhiya, Ram Prasad Mukhiya and Ramautar Mukhia

Naresh Kumar Sinha, J.—The complainant filed Complaint Case No. 109 (C) of 1973 against five accused persons including Respondent Nos. 2, 3 and 4 for the offences under Sections 144 and 379 of the Indian Penal Code. The three accused-Respondents were convicted by the learned Sub- divisional Judicial Magistrate for be offences u/s 143, 144 and 379 of the Indian Penal Code vide judgment dated 26th March, 1983 and were ordered to the released on entering into a bond of good conduct without sureties for keeping peace for a period of one year. They preferred an appeal and the learned Additional Sessions Judge, by his judgment and order dated 13.12.1983, set aside the order of the trial Court and acquitted them of the charges. The complainant after being granted Special Leave to Appeal by order dated 7.2.1984 passed in S.L.A. No. 6 of 1984, has preferred this appeal against the judgment of acquittal passed by the appellate Court.

The prosecution case was that five accused persons (including three Respondents in this appeal) went to the mango orchard of the complainant situated upon a portion of plot No. 1511 in Mauja Jiwachpur P.S. Chhatapur in the district of Saharsa (Now Supaul) on the morning of 6.6.1973 and started plucking the mangoes. On being informed by his watchman, the complainant-Appellant came to the RO. and saw the occurrence. The accused'' persons, some of whom were armed with weapons, ran to assault him where upon the complainant kept a distance from them. The accused persons plucked 1000 mangoes worth Rs. 200/- from the orchard of. the complainant. The complainant Balchand Bhadani-P.W. 1 examined himself and two others, both eye witnesses, namely, Bala Mukhiya and Janak Mukhiya- R.Ws. 2 and 3 respectively. The defence also examined three defence witnesses, namely, Sheo Narain Mukhiya D.W. 1, Ganga Mukhiya- D.W. 2 and Kapileshwar Bahardar- D.W. 3. Except for D.W. 3 who was a formal witness, D.Ws. 1 and 2 had been examined on the point of possession of the mango orchard. The prosecution has also filed some documents including the original sale deed dated 20.5.1069 executed by Asharfi Mukhiya in favour of the complainant''s son with respect to 11 kathas 17 dhoors of land including five mango trees on plot No. 1511 which was marked Ext. 1. Some other documents were also filed. The defence had also produced certain documents including Ext. A which was original sale deed dated 19.4.1971 executed by Chandar Mukhiya and Surya Narain Mukhiya in favour of accused Jualal-Respondent No. 2 transferring 14 kathas land of plot No. 1511. The learned Sub-divisional Judicial Magistrate did not accept the defence of the accused persons and after holding the prosecution case as proved, convicted the accused persons u/s 379 of the Indian Penal Code and while Respondent No. 2 Jualal Mukhiya was convicted u/s 144 I.P.C. the other two Respondents were convicted u/s 143 I.P.C.

The learned appellate Court, however, took the view that the evidence adduced by the parties disclosed a case of bonafide dispute with regard to the piece of land on which the mango trees stood and the conviction of the accused, for that reason, was not justified in the eye of law. In that view of the matter, learned appellate Court allowed the appeal, set aside the conviction and acquitted the accused persons of the charges framed against them.

I have perused the records of the case including the judgments of the trial Court and the appellate Court in the light of the submissions made on behalf of the learned Counsel for the Appellant and Respondents as also Shri A.P. Sahay, appearing for the State-Respondent. The records of the case did not contain the deposition of the witnesses filed on behalf of both the prosecution and the defence. Learned Counsel appearing for the Appellant produced the copies of the depositions for perusal of the Court in course of hearing. Going by the allegations made by the complainant, the case appears confined to a case of theft of mangoes worth Rs. 200/-. However, the parties adduced evidence to support the rival''s claim of possession of the land including the mango orchard. There is no dispute between the parties that the old plot on which the mango trees stood, was plot No. 1511. It is the evidence of the complainant-P.W. 1 that the mango trees were in plot No. 1511 of khata No. 38 and that he had purchased an area of 11 kathas and 17 dhoors of land from on Asharfi Mukhiya by means of kewafa in the name of his son Manik Chand Bhadani and that he was ever, since then, in possession of the same. The mango trees are said be on the land from before the purchase. The complainant also claim to have go mutation of the land In his favour and rent receipt for the above area of land of plot in question, were issued in his favour in the cross-examination, the complainant conceded that the land purchased by him from Asharfi was the ancestral land of, Asharfi and khatian of the said land was in the name of Devi Das who had four sons namely Mewalal, Asharfi, Ganpat and Babujee. In the cross-examination, the complainant has made certain admissions suggesting that the land, including the lands of plot No. 1511 and 1514 had maintained in the name of the descendents of Devi Das and some of the heirs had sold their lands in favour of others. He also admitted that some lands of plot No. 1511 had been sold to other but he denied whether the sons of Rabbi Mukhiya had sold their share of the land of plot No. 1511 in favour of the accused Jualal. The complainant then went on to add that the lands thus sold out of plot No. 1511 in favour of Jualal-accused by the son of Rabbi Mukhiya, was illegal and Invalid. The complainant, in his cross-examination, had made this admission which itself suggested the dispute between the parties with regard to the possession of the land of survey plot No. 1511 over which the mango trees stood and for the plucking of mangoes fruits of which the complainant case was filed.

Two of the witnesses examined on behalf of the defence, namely, D.Ws. 1 and 2 stated that the lands of plot No. 1511 were in possession of the accused Jualal which they had purchased from Chandar Mukhiya, a son of Rabbi Mukhiya and that he was seeing Jualal in possession of the plot No. 1511. The witness, D.W. 1 even went to the extent of saying that there were five mango trees one of which had dried in the ;area of the land in possession of accused Juala and that the complainant party never came in possession over the same. The witnesses also denied that Asharfi Mukhiya, the vendor of the complainant, was ever In possession of that area of the plot and consequently, he could not have passed any title to plot No. 1511, to the complainant.

I have purposely referred to the evidence of the witnesses with regard to the possession on plot No. 1511. Both parties had adduced evidence and produced documentary evidence such as sale deeds In support of the rival contention over possession over the area of land on which the mango orchard stood. Under these circumstances, if the learned appellate Court did not choose to rely entirely on the oral testimony of the witnesses to accept the case of theft as having been proved, in my opinion, the learned appellate Court had not misdirected itself. If the Court had reason to feel that there was on the basis of evidence oral and documentary produced in course of trial, a bonafide dispute with regard to the land from which mango fruits had been stolen, the best course was not to convict the accused persons who were themselves laying claim of possession to the orchard for any offence of theft and to acquit them. This is what the learned appellate Court appears to have done and I see no reason to take a different view of the matter.

It may be mentioned that the one of the grounds urged on behalf of the Appellant for setting aside the order of the appellate Court, was that the complainant was not heard when the appeal was disposed of from order sheet dated 22.11.1983 of the Court of the Additional Sessions Judge, it appears that service report of summons issued to the Respondent, had been received which follows that the Respondents, namely, the complainant, had knowledge of the filing of the appeal. If the Appellant was not present when the appeal was heard and disposed of, he alone is to be blamed and for that reason the order of the appellate Court, cannot be described as without jurisdiction and any contention to that effect has no merit and is accordingly rejected.

In the result, this criminal appeal has no merit and is dismissed.