KSHITISH CHANDRA SHOME Vs. STATE

JUDGEMENT

(1.) This revisional application is directed against the order passed by the Sessions Judge Burdwan dismissing the petitioners' appeal against conviction by a learned Magistrate, Katwa.

(2.) The facts of the case may be stated as follows : Complainant's case is that one Mir Akkel Hus-sain, D. W. 3 grew sugarcane as bhagidar of Dharmadas Roy on c. s. plot No. 594 under khatian No. 60. of Mouza Brahmadanga within Kelugram Police Station. The total area of the plot is .68 decimals, out of which 1" decimals in the north-west was purchased by the complainant by a registered kobala, Ext. 1 from one Dharmdas Roy, P. W. 2 with the standing sugar-cane. The complaint related to cutting and removal of the sugarcane on the 22nd Pous, 1369 B. S. by the accused persons under orders of accused Kshitish Shome. The learned Magistrate convicted accused Kshitish Shome under section 379/109 and the other accused persons under Section 379 and sentenced each of them to pay a fine of Rs. 75, in default to rigorous imprisonment for one month each. The defence version of the case appears to be that P. W. 2 Dharmadas Roy sold a por tion of c. s. plot No. 8095 of Mouza Ketugram to D. W. 1 Sahadat Hossain by Ext. A. P. W. 2 however had no right, title or possession in the same plot No. 8095, the plot being in the possession of one Rampada Paul and Dhanu-pada Paul. P. W. 2 therefore, failed to give possession to Sahadat Hussain and in lieu of that, he gave Sahadat possession in the disputed land which belonged to him. D.W. 1 Sahadat next sold this plot to Mrs. Binapani Shome, wife of accused Kshitish Shome under a registered deed, Ext. B. This deed described the plot sold as c. a. plot No. 8095 but Sahadat gave possession to Mrs. Shome in the disputed land. They further contend that D. W. Mir Akkel Hossain grew sugar-cane under Mrs. Shome as a bhagidar and it was Mir Akkel who harvested the canes with other men.

(3.) The learned Magistrate on a review of the entire evidence of witnesses having lands near the disputed plot held that the accused persons cut away the sugar-cane crop from the land. This view is also supported from the nature of the defence and has been agreed to by the learned Sessions Judge who heard the appeal also. In this state of the evidence and the circumstances, the conclusion seems reasonable and I have no reason to differ from this finding of the Courts below, namely, that the sugar-cane crop was cut away by the accused persons at the instance of accused Kshitish Shome. Ext. 1 is the sale-deed by which the complainant purchased 17 decimals from the northwest of the plot and bounded by 'ailes'. Admittedly, the plot No. 594 belonged to Dharama Das Roy. Admittedly, also Mir Akkel grew sugar-cane crop in the land as bargadar. The kobala in favour of Binapani Shome mentions plot No. 8095 of Mouza Ketu-gram. She is a purchaser from Sahadat Hossain and Sahadat's Kobala also mentioned the same plot. Indeed if there was any mistake in the number of the plot, it is only natural to expect that a rectification deed would be executed. I was contended that Dharmadas on discover of the mistake gave possession of the disputed land to Sahadat Hossain. But Dharmadas Roy is P. W 2 and he has denied it. He has specifically stated that he made over possession of 20 decimals of land out of plot No. 8095 of Mouza Ketugram to Sahadat Hussain. It may incidentally be pointed out that the plot purchased be Sahadat Hussain and then by Binapani measures 20 decimals, whereas the disputed portion is 17 decimals only. In view of the state of the documentary evidence, the Courts below have rightly accepted the oral evidence in support of the complainant's story of possession and cultivation through bargadar and there is hardly any reason to interfere with that finding of the courts below.