BAIRAGI ROUT Vs. BRAHMANANDA DAS

JUDGEMENT

(1.) EACH of the five petitioners has been convicted under Sections 143 and 379 I.P.C. and sentenced to a fine of Rs. 100/ -, and in default, to undergo R.I. for fifteen days under Section 379 I.P.C, while no separate sentence has been awarded under Section 143 I.P.C.

(2.) THE prosecution case is that on 12.1.1964, petitioners came in a body and in prosecution of their common object committed theft of fish from complainant's tank on plot No. 320 in village Dharmakirti. The motive attributed to the petitioners is that they indulged in the aforesaid act at the instigation of the Mohant of Sidha Muth who was ill -disposed towards him. In defence, petitioners denied to have committed theft of fish from the complainant's tank and allege that plot No. 320 belonging to him along with plots Nos. 273 to 276 and the intervening plot No. 322 constitute a ghai covered by one sheet of water without any separate embankments for the tanks on any of these plots. Therefore according to them, they have not committed theft of fish from complainant's enclosed tank. The courts below, on a consideration of the evidence, found that on the date of occurrence, petitioners caught fish, as alleged by the complainant and that the complainant's tank on plot No. 320 is protected by separate bundhs, and as such, does not constitute one continuous sheet of water along with the adjoining plots. On these findings, petitioners were convicted and sentenced, as stated above.

(3.) THE courts below, no doubt, have found that the testimony of P.Ws. 1, 3 and 5 is interested. At the same time, they have accepted their testimony as it finds corroboration from the testimony of P.Ws. 2 and 4. Of course, P.W. 4 is not a witness originally named in the complaint petition, but this has not been considered as sufficient to discard his testimony. So far as P.W. 2 is concerned, apart from a suggestion that he is related to the complainant, there is nothing else to show that his testimony is interested. When both the courts have preferred to rely on the evidence of the P.Ws. about catching of the fish on the date of occurrence by the petitioners, I do not find any valid reason to differ from them.