GURUBANDHU BHATRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) This revision is directed against the conviction of the petitioners under section 379/34, I.P.C. for having removed the paddy crop grown by the informant P.W. 1 from her land on 14.11.1986 and sentence to rigorous imprisonment for four months and fine or Rs. 100/. each in default to undergo further rigorous imprisonment for one month. During the trial the plea of the petitioners was that petitioner No. 1 is the brother-in-law (husbands younger brother) of the informant and that there was dispute between them over the land and that they had removed the paddy grown by them. The prosecution examined six witnesses in support of its case of which besides P.W. 1, the eye-witnesses were P.Ws. 2, 3, 4 and 5. P.W. 3 was the Naib-Sarpanch and P.W. 4 was the Ward Member of the village. P.W. 6 was the investigating officer. The petitioners did not examine any witness. The evidence led by the prosecution shows that the land was locally known as Gudhra land which was ancestral property and that the informant had been cultivating it after the death of her husband. She has grown Ichhabati and Makia varieties of paddy on the land. All witnesses stated that the informant had been possessing the land throughout and had grown the varieties of paddy in question but that the petitioners removed the same forcibly. Learned counsel for the petitioners had urged that as P.W. 1 admitted existence of dispute over the land between herself and petitioner No. 1 and it was the case of the petitioners that they had removed the paddy raised by them, the case must end in acquittal because of the bona fide claim of right advanced by the petitioners.

(2.) As was held in Ram v. Jaldhari, in a case of this nature the question to be considered is twofold, (1) as to whether there is any dispute over the land between the parties and (2) who was in possession of land on the date of the incident. So far as the first question is concerned, it being admitted by P.W. 1 that there was a dispute between the parties in respect of the land, the only question to be considered is the second aspect namely, possession of the land on the date of the occurrence. On that aspect, consistent evidence has been led by the prosecution of the informant having raised the crop in question. Since there is no contrary evidence and the evidence being also otherwise credible, it has to be held that the crop in question in fact had been raised by the informant. The crop could not have been raised on the land unless P.W. 1 in the first instance was in possession of the land. Hence her possession on the date of the incident has to be found as a fact. So far as the petitionerTs advancing the claim of having raised the crop is concerned, it is of course seen from the evidence of P.Ws. 2, 3 and 4 that at the time when the crop was removed and the witnesses protested to it, the petitioners claimed that they had raised the paddy. All the same, the witnesses also categorically stated that such statement by the petitioners was not a fact as they had never cultivated the land and that the varieties of paddy had been grown by P.W. 1 alone. If the petitioners had raised the paddy on the land, it was a fact within their special knowledge and the onus was upon them to establish it. This onus no doubt was to be discharged either by leading evidence or by garnishing support from facts proved by the prosecution, the extent proof required being preponderance of probabilities. But even applying such principles, it is yet seen that the petitioners have in no manner discharged the onus. They have not led any evidence in the case. There is also not an iota of fact in the prosecution evidence from which such conclusion can be drawn even remotely. That being so this petition has no merit and is to be dismissed.

(3.) Learned counsel for the petitioners has lastly urged regarding the question of sentence. It appears from the evidence that the informant being a widow was being harassed by petitioner No, 1 along with his other family members. Because of such reason, I am not inclined to exercise the power of releasing petitioners 1, 2, 5 and 6 on probation. However so far as the petitioners 3 and 4 arc concerned, they are ladies and their case is to be considered on a special basis. A report be called for from the concerned District Probation Officer under section 6(2) of the Probation of Offenders Act regarding their conduct. The matter be put up for orders after the report is received as regards petitioners 3 and 4. The revision is dismissed as against petitioners 1, 2, 5 and 6. Appeal disposed of accordingly.