SITA RAM SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 25th March 1992, passed by Judicial Magistrate, 2nd Class, Samastipur in G.R. No. 403 of 1990 & 84 of 1992, whereby and whereunder the respondents of this appeal were acquitted.

(2.) THE appellant had filed the complaint before the lower court alleging therein that the complainant had taken a particular Lichi orchard on the basis of registered Kabuliat Patta executed by the father of respondent Kedar Prasad Pandey for a period of 29 years. When the complainant went to see his orchard on 8th July 1990, he found that respondent Kedar Prasad Pandey and his wife Rajani Devi were getting some Lichi trees cut by labourers. The labourers were also cutting earth from the Lichi crove (sic ''grove ?). Then the complainant protested, an altercation took place in which the respondents, assisted by some unknown labourers fisted and slapped the complainant. One 'Hero ' cycle was also taken away by Kedar Pd. Pandey. The branches of 25 Lichi trees were cut and taken away causing loss of Rs. 2000/ - (two thousand) to the complainant. The complainant suffered loss of Rs. 5,000/ - (five thousand) on account of loss of trees. He went to the Mukhiya who asked him to file complaint in court. The complainant gave plot numbers of the concerned plots as 2580 and 3451 (old). The new number was 2974 having an area of 51 decimals.

(3.) THE trial court analysed the evidence of each and every witness and dealt on their testimony in detail. The complainant had admitted that all of the witnesses produced by him were his own workers. So the trial court held that no independent witness was examined to support and corroborate the complainant, as far as the alleged occurrence of cutting of trees and taking away cycle of the complainant were concerned. The trial court also noted the alleged contradictions in the evidence of P.Ws. regarding the number of branches and the number of trees cut by the respondents and as to how many branches were carried away. The P.Ws. were also discrepant as regards model of cycle that was carried away by the respondents. The trial court further noted certain interpolations and over -writing in the alleged Patta (Ext -1) on the basis of which the complainant claimed to be the lease -holder of the Lichi grove. Ext -1 indicated that besides the complainant, there were four other lease -holders of the alleged Lichi Grove but none of them was examined to support the complainant 'scase as regards the alleged occurrence. The trial court held that the loss on account of cutting of trees occurred to all the lease holders and, therefore, non -production of other lessees by the complainant threw doubt about the alleged occurrence, especially when both the respondents were admittedly Government servant. The trial court also doubted the veracity of the occurrence on the ground that the complainant had stated in his complaint petition that he had informed the Mukhiya regarding the alleged occurrence but the Mukhiya was examined as D.W. 1 who denied any information to him regarding the alleged occurrence by the complainant and his own advice to the latter for filing complaint in court. D.W. 2 was examined to bring on the record a particular undertaking (Ext -A) executed by Satya Narayan Sah and Raj Kishore Sah as also by Ram Bilas Sahni, the three other lease -holders, as per Ext -1 who had given undertaking that they will utilise the fruits for nine years and thereafter wilt surrender it to the owner. However, this document was a private document executed and produced on behalf of accused -respondents and therefore, of course, not much reliance could be put on this document, but the trial court has noted that Ext -1 which was the basis of the complainant 'sclaim over the concerned orchard was unreliable, because of certain interpolation in the same. I think, the trial court has rightly come to this view that admittedly the concerned orchard belonged to the father of respondent Kedar Prasad Pandey. So unless the complainant proved by specific and positive evidence that he had taken the concerned orchard and some trees standing inside the same on lease, he has no right to complain against Kedar Prasad Pandey for his act of cutting trees. Ext -1 shows that total area of the concerned plot was 51 decimals, which was mentioned in the complaint petition. The lease deed (Ext -1) shows that plot Nos. 2580 and 3451 which were old plot numbers were combined in new plot no. 2974 and they had an area of 51 decimals. There was another plot in the lease deed which was plot no. 2516 having an area of 29 decimals. Admittedly, in the concerned Lichi orchard, besides the complainant, there were four other lease -holders. So the complainant had to prove that the Lichi trees which were cut by Kedar Prasad Pandey were cut from the leased portion of the grove in favour of himself (the complainant). The trial court had noted that P.Ws. were discrepant in describing the boundary of the exact place from where the Lichi trees were cut. In such a circumstance, unless the complainant proved by positive evidence that the Lichi trees were cut from his portion of lease, he has no case to succeed on the basis of his own testimony and supported by his own labourers, as it was held by the trial court. The non -support of the complainant 'scase by other lease -holders was also a circumstance which was noted by the trial court and which created genuine doubt in the mind of the lower court which recorded the order of acquittal against the respondents. Moreover, the lease -deed (Ext -1) does not show that he had joined his father in creating the lease nor there is any signature of Kedar Prasad Pandey although he had figured as a witness. The settled law is that a witness is not bound by the contents of the deed. The aforesaid circumstances and the evidence on the record were interpreted by the trial court as having no positive and unimpeachable support to the complainant 'scase and it was under these circumstances that the order of acquittal was passed.