PANCHANAN ALIAS PANCHU SAHU Vs. SANATAN BANK

JUDGEMENT

(1.) CONCURRENT findings recorded by the trial and the appellate courts holding the petitioners to be guilty of the charge of theft for having cut away and removed branches of a Pipal tree belonging to the complainant -opposite party standing on plot No. 1013/1256 at village Salijanga in the district of Cuttack on April 16, 1978, convicting them under section 379 of the Indian Penal Code and sentencing each of them to pay a fine of Rs. 100/ - and in default of payment thereof, to undergo rigorous imprisonment for a period of ten days are under challenge in this revision on the grounds that the opposite party had not proved his actual possession over the land in question where the tree stood and had not explained the delay in making the complaint. The opposite party, in spite of service of notice on him personally, has not entered appearance in this Court.

(2.) NORMALLY the jurisdiction of this Court in revision is to be exercised to set aside an order in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has clearly resulted in miscarriage of justice and the High Court is not expected to act in Its revisional jurisdiction as if it is hearing an appeal, but concurrent findings recorded by the trial and appellate courts cannot be stamped as infallible because they are concurrent nor can the conviction recorded by the two courts be maintained if it is legally unfounded and unsustainable. In my view, the grounds taken on behalf of the petitioners are unassailable and must be upheld for the reasons to follow.

(3.) THE Amin (P. W. 4) had reported as per Ext. 1 that there was a Pipal tree on plot No. 1013/1257, but the case of the opposite party was that theft had been committed III respect of the branches of a Pipal tree standing on plot No. 1013/1256 and it was not his case that the occurrence had taken place on plot No. 1013/1257. Unjustifiably, the trial court assumed that P.W. 4 had, by slip of pen, mentioned plot No. 1013/1256 to be 1013/1257 and this finding of the trial court was maintained by the appellate court without any discussion and without recording any reasons therefore. No clarification had been sought by the opposite party when P.W. 4 was under examination and in the absence of any material, the trial court as also the appellate court ought not to have readily concluded that P.W. 4 bad committed a mistake in respect of the plot number while recording it in Ext. L It would clearly appear that the opposite party had not established that he was in possession of a Pi pal tree standing on plot No. 1013/1256. This would be sufficient to set at naught the order of conviction.