PADMESWAR NATH Vs. RATNESWAR NATH

JUDGEMENT

(1.) This Criminal Appeal is so preferred by Shri Padmeswar Nath, appellant/complainant under the provisions of Section 378 (5) of the Code of Criminal Procedure '1973 against the judgment of acquittal so passed by the learned Judicial Magistrate, 1st Class, Rangia in C.R. Case No. 471 of 1986 (New)/C.R. Case No. 1884of 1981 (Old) acquitting the accusedrespondents eleven in numbers who were so charged under Section 379/506 IPC as to face the trial. This appeal so filed was admitted after granting special leave and the respondents were so served with the notice though in spite of the service of the proper notice, no one appeared on behalf of the accused respondents.

(2.) Heard Mr. B.K. Deka, learned counsel for the appellant complainant. On behalf of the appellant complainant it is submitted that the impugned judgment by which the accused respondents have been acquitted is prepared carelessly without discussing the prosecution evidence so available on record and that being the position the said judgment dated 28.11.86 passed by the learned Judicial Magistrate, 1st Class, Rangia can well be said to be perfunctory and not in conformity with the facts and circumstance of the case. It is pointed out that there is error of law and facts in the impugned judgment and there is also non-reading of some important piece of evidence available therein particularly in the deposition of two of the independent witnesses Lankeswar Baishya and Yogesh Ch. Baishya who have fully supported the complainants case relating to his growing the paddy crop over the land in question and therefore the story so propounded by the complainant is fully supported by the rest of the witnesses examined which is quite in consonance with the complainant's case so put initially at the time of lodging of the complainant's case and also at the time of the complainant as PW-3 deposing before the learned Trial Court. It is further averred on behalf of the appellant that as per the prosecution case on the 20th November 1981 the accused persons named in the complaint petition alongwith unknown persons forcibly harvested paddy crop so grown by the complainant of about 10 Bighas covered under Dag No. 695 of K.P. Patta No. 198 situated in village Tuhera and the paddy of about 4 Bighas of land is again claimed to have been harvested by the accused respondents out of Dag No. 413. K.P. Patta No. 106 situated in village Bar Maroi The further case of the complainant is that as a matter of fact in Tuhera Village, the complainant's that Dag comprised of 13 Bighas 3 Kathas of land whereas in Village Barmaroi it comprised of 5 Bighas 2 Kathas 11 Leches of land, when protested as claimed by the complainant and his sons, the accused respondents did not heed to their request rather threatened the complainant and his sons and took away the paddy bundles which is said to have been so stored at the place of Ratneswar Nath, respondent No. 1. This is also the case of the appellant complainant that prior to this occurrence also, there was litigation so going on between the complainant and Ratneswar Nath, son of Late Nandeswar This will not be out of place to mention that it has come in the evidence of PWs so examined with regard to Ratneswar Nath's father Nandeswar and the complainant Padmeswar Nath being full brothers. In the complaint petition, it further transpires that five witnesses were cited as witnesses out of which only two are examined. The learned counsel for the appellant Mr. B.K. Deka in all fairness has also pointed out that the appellant of this case namely Padmeswar Nath died on 2.11.92 and therefore the Misc. petition was so filed for substitution of his heirs and also for condonation of delay for making a prayer for the said substitution not within prescribed time. After hearing on this issue, this Court has passed orders in this Criminal Appeal directing; that this Criminal Appeal does not abate under the provisions of Section 394 of the Cr.P.C. and so the matter was directed to be heard. One explanation also comes from the appellant complainant's side with regard to his not filing the Police case which according to Mm was not so received by the Police when the Police was so approached because of the fact that 20.11.81 was the Assam Bandh day and the Police was. engaged in law and order duly. By once again referring to the impugned judgment, Mr. Deka has also drawn my attention that in a case relating to the theft of the crop the foremost duty of the learned Court below is to find out as to who grew the crop and on this point all the three witnesses examined in course of trial have in one voice supported the prosecution story. That being the position, instead acquitting the accused respondents it was incumbent on the part of the Judicial Magistrate as to hold them guilty of committing theft of the paddy crop and also of committing offence coming under the purview of Section 506 of the I.P.C. relating to criminal intimidation and threatening to cause injury to the complainant and his two sons. On these grounds, hence, prayer is that the relief so sought for by preferring this Criminal Appeal be given to the appellant complainant.

(3.) In support of the contention that the impugned judgment of acquittal is fit to be set aside. Mr. Deka, learned counsel for the appellant complainant has also relied upon a reported case - A.I.R. 1963 Assam Pg. 151 - (State Vs. Md. Misir AH & Ors). In toe background of the said reported case, it is pointed out that if there is no discussion of prosecution evidence in judgment and the points for determination is not followed by intelligent discussion of pros and cons of the case, judgment cannot be said to be in conformity which cam well be set aside.