Padmeswar Nath vs Ratneswar Nath and Others

B.N. Singh ''Neelam'', J.—This Criminal Appeal is so preferred by Shri Padmeswar Nath, Appellant complainant under the provisions of Section 378(5) of the Code of Criminal Procedure 1973 against the Judgment of acquittal so passed by the learned Judicial Magistrate, 1st Class, Rangia in C.R. Case. No. 471 of 1986 (New)/C.R. Cane No. 1884 of 1981 (old) acquitting the accused Respondents eleven in numbers who were so charged u/s 379/506 IPC as to face the trial. This appeal so filed was admitted after granting special leave and the Respondents were so served with the notice though inspite of the service of the proper notice, no one appeared on behalf of the accused Respondents.

Heard Mr. B.K. Deka, learned Counsel for the Appellant complainant. On behalf of the Appellant complainant it is submitted that the impugned Judgment by which the accused h Respondents have been acquitted is prepared carelessly without discussing the prosecution evidence so available on record and that being the position the said Judgment dated 28.11.86 passed by the learned Judicial Magistrate, 1st Class, Rangia can well be said to be perfunctory and not in conformity with the facts and circumstance of the case. It is pointed out that there is error of law and facts in the Impugned Judgment and there is also non-reading of some important piece of evidence available therein particularly in the deposition of two of the independent witnesses Lankeswar Baishya and Yogesh Ch. Baishya who have fully supported the complainants case relating to his growing the paddy crop over the land in question and therefore the story so propounded by the complainant is fully supported by the rest the witnesses examined which is quite in consonance with the complainant''s case so put initially at the time of lodging of the complainant''s case and also at the time of the complaint as PW 3 deposing before the learned Trial Court. It is further averred on behalf of the Appellant that as per the prosecution case on the 20th November 1981 the accused persons named in the complaint petition alongwith unknown persons forcibly harvested paddy prop so grown by the complainant of about 10 Bighas covered under Dag No. 695 of K.P. Patta No. 198 situated in village Tuhera and the paddy of about 4 Bighas of land is again claimed to have, been harvested by the accused Respondents out of Dag No. 413, K.P. Patta No. 106 situated in village BarMaroi. The further case of the complainant is that as a matter of fact in Tuhera Village, the complainant''s that Dag comprised of 13 Bighas 3 Kalhas of land whereas in Village Barmaroi it comprised of 5 Bighas 2 Kalhas 11 Lechas of land, when protested as claimed by the complainant and his sons, the accused Respondents did not need to their request rather threatened the complainant and his sons and took away the paddy bundles which is said to have been so stored at the place of Ratneswar Nath, Respondent No. 1. This is also the case of the Appellant complainant that prior to this occurrence also, there was litigation so going on between the complainant and Ratneswar Nath, son of Late Nandeswar. This will not be out of place to mention that it has come in the evidence of PWs so examined with regard to Ratneswar Nath''s father Nandeswar and the complainant Padmeswar Nath being full brothers. In the complaint petition, it further transpires that five witnesses were cited as witnesses out of which only two are examined, The learned Counsel for the Appellant Mr. B.K. Deka in all fairness has also pointed out that the Appellant of this case namely Parmeswar Nath died on 2.11.92 and therefore the Misc, petition was so filed for substitution of his heirs end also for condonation of delay for making a prayer for the said substitution not Within prescribed time. After hearing on this issue, this Court has passed orders in this Criminal Appeal directing that this Criminal Appeal does not abate under the provisions of Section 394 of the Code of Criminal procedure and so the matter was directed to be heard. One explanation also comes from the Appellant complainant''s side with regard to his not filing the Police case which according to him was not so received by the Police when the Police was so approached because of the fact that 20.11.81 was the Assam Bandh day and the Police was engaged in law and order duty, By once again referring to the impugned Judgment, Mr. Deka has also drawn my attention that in a case relating to the theft of the crop, the foremost duty of the learned Court below is to find out as to who grew the crop and on his point all the three witnesses examined in course of trial have in one voice supported the prosecution story, That being the position, instead acquitting the accused Respondents it was incumbent on the part of the Judicial Magistrate as to hold them guilty of committing theft of the paddy crop and also of committing offence coming under the purview of Section 506 of the I.P.C. relating to criminal intimidation and threatening to cause injury to the complainant and his two sons, On these grounds, hence, prayer is that the relief so sought for by preferring this Criminal Appeal be given to the Appellant complainant.

In support of the contention that the impugned Judgment of acquittal is fit to be set aside, Mr. Deka, learned Counsel for the Appellant complainant has also relied upon a reported case - The State Vs. Md. Misir Ali and Others, In I he background of the said reported case, it is pointed out that if there is no discussion of prosecution evidence in Judgment and the points for determination is not followed by intelligent discussion of pros and cons of the case, Judgment cannot be said to be in conformity which can well be set aside.

As stated above, even after the proper service of notice no one has appeared on behalf of the accused Respondents. Lower Court Record so called for is available for perusal, In the background of the argument so advanced by the learned Counsel for the Appellant complainant Mr. B.K. Deka and also after looking into the Lower Court Record and re-assessing the evidence oral and documentary so available therein, I find that the impugned Judgment so passed by the learned Judicial Magistrate, 1st Class, Rangia on no account pan be said to be perfunctory as claimed by the learned Counsel Mr. Deka out he grounds detailed below.

Firstly, in the instant case the enmity so going on between the Appellant complainant with that of Respondent No. 1 is admitted. This is also admitted that Respondent No. 1''s father and the complainant happened to be the full brothers, In the evidence of the witnesses so examined, particularly in the evidence of PW 3 who is no one else but the complainant himself, it has very well come that the landed property between the two brothers was ejmali (joint) though as per the complainant''s case these plots were exclusively cultivated by him. As per the other sides case i.e. of Respondent No. 1, as so put before the trial Court, Respondent No. 1 and his family members had half share. This can well be borne in mind that out of 13 Bighas 3 Kathas of land in Tuhera and 5 Bighas 2 Kathas 11 Lechas of land in Barmaroi of the standing paddy crops, as per the complainant himself all the standing crops are not said to have been harvested by the accused Respondents. Furthermore in the evidence of PWs it has come that the distance of the two Villages i.e. Tuhera and Barmaroi is about 1� K.M.s That being the position, since the time of occurrence is said to be the same, it does not seem practicable for the same set of witnesses as to see the occurrence taking place at two different places, The another important point which is also for consideration is that out of the five witnesses cited, only two have been examined. No explanation comes from the Appellant complainant''s side us not to examine the rest of the witnesses particularly his two sons who are also said to he very much present at the place of occurrence as claimed threatened by the accused Respondents when the father and sons protected forcible harvesting of the paddy crops, PWs 1 & 2 while deposing claimed themselves to be eye witnesses but they are also specific in saying that when the accused Respondents started cutting the paddy crops they did not object to their said action which in normal course was expected from them to do when according to them the crop was so grown by the complainant. In a case so registered u/s 379 I.P.C. particularly relating to the theft of the crop in my considered opinion true it is that the Trial Court is expected to find out as to who grew the crop instead scrutinizing with regard to the title over the land in question but if a situation so arises in which there is bonafide dispute between the parties and the property removed i.e. in the instant case the standing crop so said to have been removed is in assertion of claim of right, however ill-founded the claim may be - the removal of the crop in such circumstance may not constitute the offence coining under the purview of Section 379 I.P.C. Forseeing this situation which crops up after the marshalling of the evidence available on record, the learned Trial Court thus after judiciously exercising its mind has come to the conclusion that the said complaint case so lodged by the complainant was a case in which the accused Respondents be rather acquitted instead being declared of committing theft. According to the learned trial Court since the Appellant complainant failed to establish the guilt of the accused relating to the theft, there was thus no question of their committing any offence ''under Section 506 I.P.C. In the instant case as also discussed above, the complainant and the Respondent No. 1 are of me same family, Respondent No. 1''s father being the full brother of the complainant and since from the month of the complainant himself figuring as PW 3, it comes that there is no division of foe landed property properties were ejmali we overacts said to have been committed by Respondent No. 1 alongwith his associate also throws a cloud of suspicions rotating to the case so lodged by the complainant based on falsehood as to implicate the other side and in the instant case in the body of the complaint petition it is the complainant who details with regard lo the previous animosity so going on between the parties, Thus I find that the Appellant complainant before the learned Trial Court, in the background of the facts and circumstance discussed alcove has failed to establish that the accused Respondents with dishonest intention had taken away the crops in question from the land situated in two different villages which were at a distance of 1 - to 2 K.M.s at the same time and that the alleged act was intended to cause wrongful gain to himself and wrongful loss to the Appellant complainant.

Over and above, in a Criminal Appeal so preferred against the Judgment of acquittal, extraordinary rented) is provided under the provisions of Section 378 Code of Criminal Procedure in a case where there is grave miss-carriage of justice and where obviously error is committed by the learned Trial Court passing Judgment. In the instant case appearing the evidence so available in IK: Lower Court Record which is so available for perusal, I do not find it to be a lit case in the background of the evidence so discussed above that the maintenance of the said Judgment would amount to serious mis-carriage of justice because I have come to the conclusion that the acquittal of the accused Respondents is not on unreasonable grounds.

Taking that view and also keeping in mind the provisions of Section 378 Code of Criminal Procedure, I find it not to be a fit ease in which the impugned Judgment of acquittal warrants any interference.

This Criminal Appeal thus fails and is hereby dismissed.