PALTU GOSWAMI Vs. RAM KUMAR DAS

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge Under Section 438, Criminal Procedure Code recommending that the order of conviction and sentence of the petitioner passed by the Munsiff Magistrate of Khowai Under Section 379 IPC in Criminal Case No. 18 of 1957 should be set aside.

(2.) THE petitioner one Paltu Goswami and another Haridhan Goswami were the two accused persons before the Magistrate. Haridhan Goswami was a young lad aged 12 years. They were charged Under Section 379 IPC on a complaint filed by the respondent that on the morning of 18 -8 -1957 they removed some jute plants which were kept by the respondent in a pond for the purpose of wetting. They denied the offence. According to them, the pond belonged to the 1st accused and was surrounded by his paddy lands and the respondent kept his jute dipped in the said pond and all that they did was to remove the jute from the said pond in private defence of property and kept it in the adjacent paddy land. The jute was not stolen, but kept stored in the adjacent field and the respondent was requested to take it away which he refused to do. Instead of removing the jute, he rushed to Court with the criminal complaint accusing them of theft.

(3.) THEN he convicted the accused persons and found both of them guilty Under Section 379 IPC The reason given by him for convicting the accused persons Under Section 379 was that the pond in which the jute was kept by the respondent belonged to the Government and not to them and that therefore they were guilty Under Section 379 of theft of the jute. He added that though the removal was not done for any wrongful gain for the accused, it had caused wrongful loss to the respondent and that was sufficient Under Section 379 to convict them.