DOJAKHAI, CHIEF OF NINGTHICHING Vs. KHAMJATHANG GANGTE

JUDGEMENT

(1.) THIS is a revision petition against the order of the Assistant Sessions Judge in Criminal Appeal No. 52/1/1959 by which he confirmed the conviction under Section 379 I. P. C. of the petitioner and the sentence of a fine of Rs. 80/ - passed by the S. D. C., Churachandpur in Criminal Case No. 14 -C of 1959. The first respondent herein filed a complaint on 17 -11 -58 against the petitioner stating that the complainant had a land known as Nalon land which was granted for settlement in his favour by an order dated 17 -3 -56 passed by the S.D.C., Churachandpur in Miscellaneous Case No. 208 -C of 1955 -56, that he had cut ekra grass from the said field and kept it in the sun for drying, and that on 10 -11 -58 at about 8 -00 a.m. the petitioner without the consent and knowledge of the complainant took away 70 Ipots of grass worth about Rs. 105/ -. It was a warrant case and the first respondent examined himself and 2 witnesses in support of his case to show that the grass was cut by him and kept on the land and that the petitioner along with some 15 others removed the said grass from the field on the morning of 10 -11 -58 and stored it in his house. In support of his case, the petitioner also produced the copy of the order in Miscellaneous Case No. 208 -C of 1955 -56 dated 17 -3 -56. The order however showed that the prayer for erecting huts in Tarangpokpi which fell within Nalon land was given to one Songthang of Nalon village. The first respondent's name was not seen in the said order as having obtained settlement of the land. Another document produced by the first respondent was the order passed by the S. D. G. on 21.9.1956 on a petition filed by the present petitioner for cancellation of the said order in Miscellaneous Case No. 208 -C of 1956. The said order showed that the S. D. C. was not prepared to interfere with the orders already passed. Though these documents were produced by the first respondent, I do not find that either the first respondent or his witnesses referred to them in their evidence. Neither did the Magistrate in convicting the petitioner refer to the said orders in his judgment.

(2.) HE framed a charge under Section 379 I. P. C. against the petitioner. The petitioner pleaded not guilty to the charge and stated that he did not steal any thatching grass out of the possession of the complainant. He examined 2 D. Ws. on his side. The evidence of D. W. 1 was intended to show that the thatching grass was cut by D. W. 1 from the land at the instance of the first respondent and that the petitioner at the time of the cutting objected to it, but that D. W. 1 cut the grass and handed it over to the complainant. The evidence of D. W. 2 was intended to show that the thatching grass grew in the land belonging to the petitioner and further that the petitioner had no hand in carrying away the thatching grass which had been cut. In the statement under Section 342 Criminal Procedure Code the petitioner denied that he carried away the thatching grass out of the field of the complainant on 10 -11 -59 and that the thatching grass was growing in his village in the field belonging to him, and that he had got permission for the settlement of the said field. It would appear that the defence wanted to produce documents in support of the said case that the field from which the thatching grass was cut belonged to the petitioner. But the Magistrate did not grant the permission. Thus without going into the question whether the field from which the thatching grass was cut belonged to the respondent or to the petitioner, the Magistrate held that the land where the grass were growing belonged to the complainant and that the petitioner took away the grass out of the possession of the complainant without his consent and that he had thereby caused wrongful loss of property to which the complainant was legally entitled. He accordingly convicted the petitioner and sentenced him to a fine of Rs. 80/ -.

(3.) WHEN the matter went in appeal, the Assistant Sessions Judge permitted the petitioner to file his documents to show that he was entitled to the land from which the thatching grass was cut. Accordingly, the petitioner filed Exts. B -1 to B -4. But the Assistant Sessions Judge held that though Exts. B -1 and B -2 may show that the petitioner was entitled to the land, the question in the case was regarding the possession of the thatching grass and that the petitioner's denial that he did not remove the thatching grass and his defence of alibi showed that his claim of right was not bona fide. He further held that even though the first respondent may not have shown that he was entitled to the land from which the thatching grass was cut, it was not the real title to the property which mattered in a case of theft, but the fact of possession under a colour of right and that the first respondent's possession of the disputed land for some prior years has been proved and hence the possession of the stolen property, namely, the thatching grass with the complainant was also proved. He also held that the fact that the petitioner removed the thatching grass without the consent of the first respondent from his possession was also proved. Then he went on to discuss the question whether the petitioner took away the property under a bona fide claim of right. He held that there was no clear evidence to show that the land from which the grass was cut fell within that area allotted to the petitioner, and that though the order Ext. B -1 showed that the petitioner was authorised to open a fruit garden in Tarangpokpi, there was no evidence that be opened the fruit garden or that the thatching grass was growing in the midst of the fruit trees or plants. Hence the appellate Court held that the petitioner's claim was not bona fide. On the other hand he held that the petitioner's assertion considered along with his denial of removing the grass and his attempt to prove alibi showed his dishonest intention to cause wrongful loss to the complainant and wrongful gain to himself. On these grounds he dismissed the appeal.