PRAVATI DEBNATH Vs. NARAYAN BANIK

JUDGEMENT

(1.) This is an appeal filed under Section 378 (4) of the Code of Criminal Procedure, 1973, Cr.P.C. in short from a private complaint proceeding being C.R. No. 1111/02 instituted by the appellant herein on the allegation that the respondent No. 1 committed theft by dishonestly removing the paddy from the possession of the appellant, namely, Smt. Pravati Debnath on 29.11.2002 at about 9 a.m. The cognizance accordingly was taken and thereafter inquiry started. The process was issued compelling the respondent No. 1 to appear before the Court of the learned Judicial Magistrate, First Class, Sonamura, West Tripura to reply the charge. On 29.01.2004 the charge was framed against the respondent No. 1 under Section 379 of the Indian Penal Code, IPC for short. By a Criminal Revision Petition No. 51 of 2004 the order dated 29.01.2004 framing the charge against the respondent No. 1 under Section 379 IPC was challenged. However, the Addl. Sessions Judge, Sonamura, West Tripura terminated the challenge on reverting the case for trial. The complainant introduced as many as three witnesses including herself in the evidence. Thereafter the trial Court examined the respondent No. 1 under Section 313 of the Cr.P.C. for recording his response to the testimony as laid by the complainant. The trial Court on scrutiny of the evidence as a whole held that the complainant could not prove the charge beyond reasonable doubt and accordingly the respondent No. 1 was acquitted by the judgment and order dated 24.01.2005. Being aggrieved, the appellant has filed this appeal on the ground that there was an order of temporary injunction passed by the Civil Judge, Sr. Division, Court No. 2, Agartala on 07.08.2003 against the appellant, on consideration of all prima facie materials that the land was under possession of the complainant and the respondent No. 1 was restrained from interfering with the said possession in any manner. The operative part of the said order as read in the evidence is reproduced hereunder:

(2.) The defence plea is that the possession is disputed in the suit as pending; in the said Court and as such even if it is proved that the respondent No. 1 took away the ripe paddy from the said land without consent of the complainant he cannot be held guilty of an offence of theft as defined by Section 378 IPC. The appellant further projected the plea that even though the trial Court held in no uncertain terms that the Court was; convinced that the respondent No. 1, namely, Narayan Banik had taken away ripe paddy from the possession of the complainant, namely, Smt. Pravati Debnath, but without any evidence the trial Court held abruptly that the prosecution had not been able to prove beyond reasonable doubt that the respondent No. 1 took away the ripe paddy with dishonest intention and that the said act did not constitute an offence of theft.

(3.) Mr. Lodh, learned counsel appearing for the appellant referred the depositions of the PW-1 (the complainant-appellant) and PWs-2 and 3 to show that the finding as returned by the trial Court as perverse as existence of the overwhelming evidence of theft against the respondent No. 1 has been discarded unceremoniously. For purpose of appreciating the challenge against the order of the acquittal, this Court would reappreciate the evidence so recorded. The appellant appearing as the PW-1 stated that the respondent No. 1, Sri. Narayan Banik had taken away the ripe paddy from her land by breaching the said temporary injunction. She further submitted that the paddy was standing on her land, as described by boundary. The PW-1 though deposed in the Court that she inherited land from her father 30 to 35 years back and the said land was transferred by the father of the respondent No. 1, Sri Narayan Banik to her father, did not admit in the evidence any proof of the ownership of the said land except making a reference to the said order of temporary injunction. However, no cross examination of the complainant is available in the record. One Anil Chandra Das deposed in the trial Court as PW-2 and stated that he was possessing the land by cultivating and growing crops as Bargadar of Nani Debnath for about two years. He stated that the respondent No. 1 took away the ripe paddy from the said land without his consent. According to him, despite his resistance, Sri Narayan Banik, the respondent No. 1 took away the ripe paddy from the field. The PW-2, the Bargadar, further stated that he shared 50% of the paddy with the respondent No. 1 and the respondent No. 1 had taken the 50% of the paddy. There was no effective cross-examination. Even though, he revealed in the cross examination that the complainant Pravati Debnath did not know the fact that there was a meeting in question on the said incident. In the meeting, it was decided that the 50% of the paddy as was taken away would be given to him and other 50% would be retained by Sri Narayan Banik. One Babul Datta who deposed as the PW-3 stated that in that meeting it was decided that the PW-2 as the Bargadar would get 50% of the paddy. He denied the suggestion that the said land belonged to the complainant. On scrutiny of the oral testimony any prudent person would be confused over the ownership of the ripe paddy. No evidence has been laid in the Court as regards the ownership of the ripe paddy on the said disputed land. It may so happen that the seed was sown by the respondent No. 1 and there was an arrangement with the PW-2 that he would take 50% of the ripe paddy at the time of harvesting. The PW-2, Bargadar is a vital witness as adduced by the complainant-appellant, but he also did not say who was the owner of the ripe paddy rather he referred to some village baithak wherefrom one view is possible that there was a claim of the respondent No. 1 over the ripe paddy. The breach of injunction may have its own consequences but that cannot be the absolute proof of theft as defined in Section 378 of the Criminal Procedure Code. Even if it is proved that the respondent No. 1, Sri Narayan Banik had taken away the paddy from the field over which there was a temporary injunction against him, this would not establish beyond reasonable doubt that there was theft unless the ownership of the paddy is established. Since two views are possible as regards the ownership of the paddy, this Court does not feel persuaded to interfere with the order of the acquittal.