RAGHUNATH PADHI Vs. RATNAKAR PATI

JUDGEMENT

(1.) The appellant filed a complaint petition in the Court of the Judicial Magistrate, Bhadrak, against the respondents and alleged therein that his father had enclosed a piece of Bari land measuring Ac. 0.06 decimals in plot No. 219 appertaining to Khata No. 29 of mouja Agiria by a green fence and was in possession thereof by raising crops and vegetables since a long time, On 19. 11. 1978, the respondents out of previous enmity cut down and destroyed the green fence of the Bari land on the eastern side upto the length of 50 cubits and installed a new fence five cubits away from the original fence encroaching upon a large chunk out of the Bari land. They also committed theft of about 7 Kgs. of brinjals and two bunches of bananas from the encroached land. It was stated, that the respondents were trespassers having no manner of right on the encroached Bari land and so they committed offences under Sections 447 and 379 of the Indian Penal Code (referred to as 'I. P. C).

(2.) THE learned Judicial Magistrate framed charges against the respondents under Section 379/34 and 447/34, I. P. C. The respondents pleaded innocence, but after trial the learned Judicial Magistrate found respondents Nos. 3 and 4 guilty under Sections 447 and 379 and further found respondents Nos. 1 and 2 guilty under Section 447/34, I. P. C. He acquitted respondents Nos. .1 and 2 of the charge under Section 379/34, I. P. C. He, however, did not pass any order of sentence, but released the respondents under Section 3 of the Probation of Offenders Act after due admonition.

(3.) THE learned Advocate appearing for the appellant did not seriously press the appeal so far as it relates to the acquittal of respondents Nos. 1. and 2 of the charge under Section 379/34, I. P. C, in view of the statement made by the appellant (P W. 1) in cross -examination to the effect that respondent No. 3 committed theft of brinjals and respondent No. 4 committed theft of two bunches of bananas. He did not specifically implicate respondents Nos. 1 and 2 with the commission of theft. Therefore, the trial Court took the correct view in holding that the charge of theft was not brought home to respondents Nos. 1 and 2. This apart, by a series of decisions law has been well settled that a judgment of acquittal should not be interfered with unless the assessment of evidence and the conclusion drawn by the trial Court are unreasonable, erroneous and perverse. Reversal of a judgment of acquittal will not be justified merely on the ground that the appellate Court's view on the evidence on record is different from that of the trial Court or on the same set of evidence two views are reasonably possible [See 54 (1982) C. L. T. 83 -State of Orissa v. Trinath Das and Ors., 1933 C. L. R. (Cr.) 9 -Charupraya Dei v. Durjyodhan Mohanty and Ors., 55 (1983) C. L. T. 553 -State of Orissa v. Arjuna Das and 58 (1984) C. L. T. 101: 1984 (I) OLR 621 - Smt. Dhara Del v. Prafulla Swain and Ors.). In the present case, as already referred to above, the views expressed by the learned Judicial Magistrate in acquitting respondents Nos. 1 and 2 of the charge under Section 379/34, I. P. C, was not unreasonable, unjustified or perverse in the context of the evidence of the appellant (P. W. 1) himself and so it would be impermissible and improper according to law to interfere with such order of acquittal.