SHIBA CHARAN NAIK AND ANR. Vs. THE STATE

JUDGEMENT

(1.) THE Petitioners were convicted by the Trying Magistrate under Section 379 I.P.C. for removal of paddy and cocoanuts from certain plots of land claimed by the complainant P.W. 1 under a deed of sale executed by one Haramoni Dibya, the widow of Narasingh Mohapatra. The Petitioners are the Gumasthas of one Beharilal Panda and Gopinath is his Manager.

(2.) THE alleged removal of paddy and cocoanuts has been satisfactorily established by the prosecution evidence. The only point arising for consideration is whether the removal was dishonest so as to constitute the offence of theft. Obviously the dispute is between the complainant Kulamoni Nanda and Gopinath Nanda. It is said that the accused persons who, as stated above, are the gumasthas of Gopinath and are subordinates under him went on the lands and removed the crops and cocoanuts under a bona fide belief that the properties belonged to him. The trial Court held that there was no evidence in the case to show that Gopinath had ever been in actual physical possession of the lands. It is also clear from its judgment that Kulamoni was never in physical possession of the disputed plots as he belongs to a village six miles away from the lands in question. It was further elicited that one Baban Mohapatra looks after the lands on behalf of Kulamoni. Baban Mohapatra is said to be the sister's husband of Kulamoni and was examined as P.W. in support of the prosecutions case. P.W. 9 was, however, unable to say why the accused persons plucked the cocoanuts which leads me to think that it was due to a mistaken belief in respect of the properties about which rival sale deeds had been taken by the parties. Apart from their connection through a common master the Petitioners have no concern with the land, nor is it suggested that they had any enemity with Kulamoni. The lower appellate court held that the accused persons not having pleaded any bona fide claim should be guilty of dishonest intention. I am afraid that is not a connect statement. It is for the Court to see whether, irrespective of the plea of the accused, the prosecution has made out dishonest intention necessary to constitute the offence of theft. Certainly it cannot be said that the Petitioners in this case are of such a status as to make one think that they wanted to make some petty gains by the removal of paddy or cocoanuts. Their motive appears to have been to help Gopinath Nanda in obtaining possession. Undoubtedly Gopinath says that he did not send the Petitioners on his behalf to cut the crops or pluck the cocoanuts. But I am afraid I cannot accept this statement as true it may well be that Gopinath was afraid of being roped in as an accused if he made any such admission. If, the Petitioners did not go upon the land on his behalf it is difficult to imagine why they committed the acts attributed to them at all. I am therefore not satisfied that the prosecution has proved beyond reasonable doubt the dishonest intention that is necessary to be established for convicting the Petitioners under Section 37 I.P.C.