JUDGMENT
D.G.R. Patnaik, J.
1. This appeal by special leave, filed by the appellant, is directed against the judgment and order of acquittal dated 13.7.1995 passed in Cr Appeal No. 14 of 1990 by the 4th Additional Sessions Judge, Palamau at Daltonganj, whereby the appeal filed by the respondents against their conviction for the offences under Sections 379/34 of the IPC as made by the trial Court, was set aside and they were acquitted from the charges for the said offence. Special Leave for filing this appeal was allowed on 2.11.1995.
2. Shri A.K. Kashyap, Advocate, has appeared for the appellant, while Shri Sudhir Kumar, Advocate, has appeared for the respondents.
3. The case before the trial Court was initiated on the basis of the complaint filed by the present appellant on 26.10.1988 against the respondents alleging therein that the complainant, who was the owner of a piece of land under plot No. 433 under khata No. 18 situated at village Harbhonga under Chalnpur Police Station within the District of Palamau, had sown paddy on the aforesaid land. When the paddy became ripe for harvesting, the respondents/accused persons on 24.10.1988 after forming unlawful assembly armed with weapons, came to the land and forcibly harvested the ripe paddy crops standing on the land valued at Rs. 2.000/-.
4. Explanation for two days delay in filing the complaint has been given in the complaint stating that the police had refused to entertain the prompt complaint of the complainant, where-after, due to intervening holidays on the occasion of some Muslim festival, the complaint could be filed on the opening day i.e. on 26.10.1988.
5. Six witnesses were examined by the complainant and one witness on behalf of the defence at the trial. After considering the evidences of the prosecution’s witnesses and that of the defence witness, the trial Court came to the finding that the offences under Sections 379/34 of the IPC has been proved and established by the prosecution and, therefore, the accused/ respondents were held guilty and were convicted accordingly. Against the impugned judgment of conviction, the respondents preferred appeal before the Sessions Judge vide Cri. Appeal No. 14 of 1990 which was heard and disposed of by the 4th Additional Sessions Judge by his impugned judgment and order dated 13.7.1995, setting aside the trial Court’s judgment of conviction and acquitting the respondents in respect of the charge for the said offence.
6. The appellate Court while passing the impugned judgment, had made appraisal of the entire evidences on record and has observed that even as admitted by the prosecution’s witnesses, parties have been litigating since long over the land and the litigation was still pending on the date of the alleged occurrence. The appellate Court has also observed that while the complainant has advanced his claim of title and possession over the disputed land, the accused persons had also advanced a similar claim of title and possession and both parties had adduced documentary evidences in support of their respective claims. The appellate Court proceeded to record its inference that since on the date of alleged occurrence and even on the date of judgment, title appeal in respect of the original suit litigated by and between the parties was still pending, it was a case of bona fide land dispute and, therefore, the offence under Section 379 of the IPC cannot be attributed to the accused persons.
7. Assailing the impugned judgment of the appellate Court, counsel for the complainant/appellant submits that the impugned judgment is perverse and that the appellate Court has committed grave error in failing to appreciate the evidences on record in proper perspective and in misconceiving the facts of the case and in drawing a wrong inference that the dispute between the parties was essentially a bona fide dispute over the land. Learned Counsel explains that the complainant had adduced cogent and reliable evidence to confirm the fact that the land was acquired by the complainant’s ancestors way back in the year 1940 and the members of his family were in cultivable occupation and possession of the same and they had sown and grown paddy crops thereon and the accused persons had though advanced counter-claim of title over the said land, their claim was dismissed in the title suit filed by them in the Court of Sub-Ordinate Judge and the judgment and decree was passed therein much prior to the date of occurrence. Learned Counsel explains further that on the date of occurrence, there was in fact no litigation pending between the parties and, therefore, the assertion of the accused/ respondents of a bona fide claim over the land is totally erroneous and a pretext raised by way of defence.
8. Learned Counsel adds further that the decision of the competent civil Court having gone in favour of the complainant in respect of his claim of title and possession over the land, the matter remained settled on the date of occurrence and if at all, the accused persons could have preferred an appeal against the Judgment and decree of the trial Court instead of taking law in their own hands and trespassing into the lands and illegally harvesting the ripe paddy. Learned Counsel adds further that even as per the evidence of the complainant’s witness, it was the complainant who had sown and grown the paddy crops on the lands and, therefore, it was they alone who could have harvested the paddy. Citing reference to the judgment of Patna High Court in the case of Ram-sharnagat Singh and Ors. v. State of Bihar reported in 1966 Cri LJ 856, learned Counsel submits that even a co-owner of a movable property with another, if his share is defined, can be guilty of theft, if he is found to remove the joint property without even an implied consent of the co-owner with dishonest intention, that is, with a view to cause wrongful loss to the co-owner and consequently wrongful gain for himself or anybody else.
9. Refuting the grounds advanced by the appellants and while defending the impugned judgment of the appellate Court, learned Counsel for the respondents submits that the ground as advanced by the appellant, are misconceived and misplaced and the appellate Court has recorded reasonable and correct findings after discussing the evidences on record, that the dispute was essentially a bona fide land dispute between the parties who were litigating for title and possession of the disputed land since more than five years prior to the alleged date of occurrence. Learned Counsel would also invite attention to the testimony of the complainant’s own witness and submit that even the witnesses of the complainant have acknowledged not only the fact that both parties have been laying claim of title and possession of the disputed land, but also that the paddy was sown jointly by both parties.
10. Learned Counsel adds further that the contention of the appellant that there was no litigation pending on the alleged date of occurrence, is misleading as because, though the judgment and decree was passed by the trial Court in the title suit against the respondents, but the date of alleged occurrence is within the period of limitation in appeal to be preferred against the judgment of the trial Court by the respondents and the appeal was in contemplation against the respondents which was in fact filed by the respondents within the period of limitation and the same was admitted.
11. From the facts as admitted by the parties, it appears that the land under reference stood originally in the names of the ancestors of the accused persons/respondents and rent receipts also used to be issued in their names and this is the basis on which the accused persons have been laying their claim of title over the lands. The complainant on the other hand, while acknowledging the fact that the land originally stood in the name of the ancestors of the accused persons, has claimed that subsequently the lands were acquired by the ancestors of the complainant by way of transfer, where-after, the name of the complainant’s ancestors were mutated in the revenue records and rent used to be paid by the complainant’s-ancestors. Both parties had advanced their claim of possession over the lands.
12. In fact, as observed by the appellant Court also, PW 2 at paragraph-15 has affirmed that the paddy was sown on the lands by both parties jointly. PW 1 has also affirmed that rent receipts are being issued in the name of the ancestors of the accused persons.
13. In the case pertaining to paddy theft, relevant issue for consideration is, as to who was in possession of the land and who had sown and grown paddy thereon? In the instant case, even as admitted by PW 2, paddy was sown by both parties jointly. The accused persons have demonstrated that their claim to the land is not altogether baseless. As rightly observed by the appellate Court, even though the judgment and decree of the trail Court has gone against the accused/respondents, but they had preferred appeal against the judgment and decree of the trial Court within the period of limitation and the appeal being in continuation of the suit, was still pending on the date of hearing of the appeal by the concerned Court. The appellate Court has also observed that even according to the witnesses examined by the prosecution, persons who had actually harvested the paddy were persons other than the present accused/respondents and none of the accused persons/respondents had actually indulged in cutting away of the paddy. The appellate Court has rightly observed that the trial Court has not taken into consideration the relevant facts and circumstances as even appearing in the evidences on record and had failed to consider that there was bona fide land dispute between the parties and as such, the offence under Section 379 of the IPC is not strictly made out.
14. The facts of case of Ramsharnagat Singh and others (supra) referred to by the learned Counsel for the appellant do not correspond to the facts of the instant case. In the case of Ramsharnagat Singh and others (Supra), though parties to the dispute were co-owners, but the dispute on being referred to the panchayat, award was given by the panchayat declaring the share of the parties and the appellant’s share was declared. It was observed by the Court that the accused persons had no right to appropriate the share which was not allocated to them. In the instant case, though decision on the dispute between the parties as referred by the trial Court had gone in favour of the complainant, but in view of the appeal preferred by the respondents, adjudication cannot be said to be final and the accused persons did have their right to prefer appeal against the trial Court’s judgment in furtherance of their claim of title over the disputed lands.
15. In the result, I find no merit in this appeal. Accordingly, this appeal is dismissed.
