(1.) THIS is a revision against a judgement of conviction passed by the learned Sub -Divisional Magistrate, Bhadrak. The two petitioners have been convicted under Section 379, I.P.C. and each of them has been sentenced to pay a fine of Rs. 25/ - or to suffer S.I. for 5 days in default.
(2.) MR . Mohanty, appearing for the accused petitioners, contends that petitioners 1 and 2 are father and son respectively, and petitioner No. 2 is a young man aged about 20. The allegation is that the petitioners, on 31 -10 -66, entered into the bari of the opposite party and cut five bamboos from a clump which was valued at Rs. 5/ -. Admittedly the petitioners and the opposite party are close relations being agnates who are also cosharers in respect of certain properties including the land from which the bamboos are said to have been removed. P.W. 1 the complainant in his evidence has admitted the following position :
(3.) HIS second submission is that in view of the statement of P.W. 1 that no other witness saw the carrying away of the bamboos the evidence of the other P.Ws. who came to depose to the removal must be discarded. This aspect of the matter was clearly lost sight of by the learned trying Magistrate. Otherwise the evidence of P.W. 2 that he saw the removal would normally not have been accepted in view of the categorical statement of P.W. 1 that none else saw the carrying away. In the circumstances, I am prepared to accept Mr. Mohanty's contention that no other witness saw it and merely on the statement of P.W. 1 carrying away of the bamboos 6 or 7 days after must not be accepted. Once the evidence in relation to the carrying away of the bamboos is not accepted, we are left only with the evidence relating to cutting of the bamboos, that is, severing them from earth.