MURALIDHAR NAYAK Vs. DINABANDHU SAMANTARAY

JUDGEMENT

(1.) CRIMINAL Appeal No. 11 of 1993 preferred against the judgment and order dated 17-5-1993 passed by the learned j. M. F. C. Kendrapara in I. C. C. Case No. 223/1990/trial No. 148/1992 convicting the petitioners for commission of offences under sections 379/34 of the Indian Penal Code (in short, the 'ipc') but releasing them under section 3 of the Probation of Offenders act having been dismissed, the petitioners accused persons have preferred this revision icc Case No. 223 of 1990 was filed by the respondent 1-complainant.

(2.) THE alleged occurrence took place on 23-8-1990. Allegation in the case relates cutting and removal paddy from the case land comprising of two plots in respecl of which Ext. 1, registered sale deed dated 19-7-1931 had been executed by accused muralidhar's father late Telei Nayak in favour of complainant's father's elder brother baikunthanath Choudhury. Complainant's case is that after purchase of the case land, there was a partition between Baikunthanath and his co-sharers including the complainant's father Hare Krushna samantray and the case land was allotted to the share the complainant's father. After hare Krushna Samantray's death, by virtue of another partition under the partition deed ext. 2, the case land was allotted to the share of the complainant. In such circumstances, complainant was the sole owner in exclusive possession over the case land in respect of which ROR Ext. 6 was issued in the names of the complainant and his co-sharers. The complainant also paid land revenue in respect of the case land and obtained rent receipts under Ext. 3 series. In the year of occurrence the complainant had raised paddy crop over the case land by performing all agricultural operations. However, on the date of occurrence the accused persons forcibly cut and removed paddy crop despite protest by the complainant. As the complainant's written report lodged in the police station did not yield any result, he filed the complaint case. The accused persons look the plea of denial. Their specific plea was that registered sale deed Ext. 1 was never acted upon and the case land continued to be owned and possessed by the accused persons for which in the current settlement ROR Ext. 'd' the case land was recorded in their names. Their further plea was that they paid land revenue and raised crop in the case land during the year of occurrence. The accused persons also claimed to have reaped and harvested paddy from the case land not on the date of occurrence but on another date during the year of occurrence. In order to substantiate the allegations complainant examined five witnesses including himself as P. W. 3 and his son as P. W. 4. Three independent witnesses were examined as P. Ws. 1, 2 and 5. Complainant also relied upon documents marked exts. 1 to 9. Only one witness D. W. 1 was examined on behalf of the accused persons who also relied upon documents marked exts. 'a' to 'h'. The learned trial Magistrate on an analysis of the evidence on record held that though current settlement ROR Ext. 'd' issued in the names of the accused persons raised presumption of possession of the case land in their favour, the evidence of P. Ws. 1 to 5 clearly showed that the complainant had sown and raised paddy during the years of occurrence. In the background of such finding the accused persons were found guilty of commission of offence under Section 379, ipc read with Section 34, IPC.

(3.) THE learned Appellate Court on reappraisal and re-appreciation of the evidence held that the presumption raised by current settlement ROR Ext. 'd' was sufficiently rebutted by Ext. 2 partition deed, Ext. 3 series rent receipts and Exhibit 9 order under section 145, Cr. P. C. The case land was transferred under sale deed Ext. 1. Though the parties were embroiled in litigations under Sections 144 and 145 of the Cr. P. C. to establish their respective claim over the case land, oral evidence of the witnesses conclusively proved that the complainant had raised paddy crop in the case land during the year of occurrence and the accused persons cut and removed the paddy crop as alleged.