KALIPADA DAS KARMARKAR Vs. SASHI BHUSAN MAJHI

JUDGEMENT

(1.) In the case out of which this Rule has arisen the petitioner has been convicted of theft and also of being a member of an unlawful assembly. The case for the prosecution was that the complainant was in possession of a certain piece of land and that the present petitioner with a large number of persons trespassed upon the complainant's land and dug up potatoes which he had grown on the land. The defence was that it was the petitioner who owned the land and who had grown the potatoes and removed them. Both Courts below have found that it was the complainant who was in possession and had grown the potatoes and hence the petitioner was convicted and fined.

(2.) The first ground on which the Rule has been granted is that the judgment of the Court of appeal below does not indicate the defence evidence in the case and contains no independent discussion of the same. It is perfectly clear from a perusal of the judgment what the defence evidence was, namely the testimony of certain persons who stated that they saw the petitioner cultivating the land and growing potatoes. The learned Court of appeal below has discussed this evidence and has come to the conclusion that he prefers on this question of possession the evidence of the complainant's witness. Anyone familiar with cases of this nature realizes that the evidence which was given in this ease was of persons who said that they saw the complainant or they saw the accused person cultivating the land and growing potatoes. There is no substance whatever in this ground. The next ground on which the Rule has been granted is that on the findings of the Court of appeal below the conviction of the petitioner under Section 379, I.P.C., is not sustainable. It is somewhat difficult to realize how the petitioner has obtained the Rule on this ground for is it perfectly clear from a perusal of the judgment of the lower appellate Court that that Court finds that it was the complainant who was in possession of the land and who grew the potatoes and the petitioner removed the potatoes from the land. Clearly therefore on the facts found the conviction of the petitioner under Section 379 was right.

(3.) The last ground on which the Rule has been obtained is that the Court of appeal below ought to have held that the complainant's vendor had no right to convey the property to him on the day he did in view of the only evidence in the case, viz. the death register which the said Court of appeal below was not justified in rejecting on mere suspicion. The question before the Court apparently was whether a certain person was or was not dead on a certain date when the sale deed was executed. The lower apppellate Court came to the conclusion that he could not place any reliance on the death register which would apparently show that on the date when this sale deed was executed the father of the person executing the deed was not dead. It was obviously open to the Court to reject or accept any piece of evidence. In the present case the Magistrate was not prepared to place any reliance on the death register in view of the somewhat casual way in which the death register was prepared and it is impossible to say that the lower appellate Court was wrong in so dealing with the death register. There is no substance in this ground either. The Rule is therefore discharged.