Calcutta High Court (Appellete Side)
Rabindra Nath De Sarkar vs Netai Chandra Adak & Ors on 24 June, 2015
Author: Subrata Talukdar
Bench: Subrata Talukdar
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mr. Justice Subrata Talukdar
CRA 18 of 1990
Rabindra Nath De Sarkar
-vs.-
Netai Chandra Adak & Ors.
Amicus Curiae : Mr. Satadru Lahiri
For the State : Mr. Subir Banerjee, Addl. P.P.
Heard on : 13.03.2015
Judgement on : 24/06/2015
Subrata Talukdar, J.: In this appeal the judgment and order of
acquittal passed by the Ld. Sub-Divisional Judicial Magistrate (Ld.
SDJM), Ghatal dated 25th September, 1989 acquitting the five
opposite parties of the charge under Section 379 IPC is under
challenge.
According to the complaint filed by the present appellant on 21st
Baisakh, 1387 BS the five accused persons cut and took away paddy
from Plot Nos. 1058 and 1069 of Mouza Chandpur, P.S. Daspur, Dist.
(the then) Midnapur. The appellant-complainant has testified that
part of the plots in question belonged to one Maya and one Sima and,
the plots were claimed to have been purchased by the appellant.
Therefore the paddy was stolen from the plots of which he claimed to
be the owner. The value of the stolen paddy was placed at Rs. 1000/-.
It is the further case of the appellant-complainant that since
there was a chance of a compromise, there was delay in filing the
complaint.
In his cross-examination the appellant states that he resides at
a distance of three bighas from the disputed land. The disputed land
pertains to Plot Nos. 1058 and 1069 measuring .13 decimals out of
.26 decimals and .63 decimals out of 1.26 decimals respectively. The
appellant claims to have purchased the land from the said Maya and
Sima, the original owners, on 11th March, 1980. The rest of the
portion of the land belonged to Ajoy, Bejoy and other sons of Kamal.
There was paddy in the disputed land when the same was claimed to
have been purchased by the appellant.
Further, according to the evidence of the appellant, the accused-
respondent continued to cut the paddy from the disputed land
without heeding the objections raised by the appellant and then carried away the cut paddy. The appellant filed a case under Section 144 CrPC against the accused. He has also stated in his evidence that the original owners, i.e. Maya and Sima filed a case against him before the Bhagchas Officer. An appeal against the order of the Bhagchas Officer is said to be pending.
The appellant's version of events is supported by PW2, one Shyamapada Chowdhury who testifies to the fact that the accused cut and took away paddy from the plots in question. PW2 further states that he cultivated paddy on behalf of Maya and Sima after which the appellant and his brothers became the purchasers of the disputed land. The disputed land covers .13 decimals of Plot No. 1058 and .22 kathas of Plot No. 1069.
PW2 admits in his evidence that the disputed land belonged to Maya and Sima and, during their lifetime, PW2 cultivated the land under Maya and Sima as a day labourer for 14 to 15 years.
PW3, one Shyamapada Nag testifies to the occurrence on 21st Baisakh, 1387 BS and states that the accused cut and took away the paddy from the disputed land. PW3 further states in his cross- examination that Maya and Sima, the original owners are alive and a Bhagchas Case is pending between the accused Netai and Gour as well as the appellant-Rabindra and Maya and Sima.
PW4, one Bijoy Krishna Chowdhury testifies to the events of 21 Baisakh, 1387 BS and, in his cross-examination states that Maya and Sima are the owners of the disputed plots which has two sub- divisions. On behalf of Maya and Sima, Shyamapada Chowdhury, i.e. PW2 planted paddy for the last time on the disputed land on 6th Magh, 1386 BS. Thereafter, no cultivation was done on the said land by PW2. In his cross-examination PW4 further states that accused Netai and Gour filed the case before the Bhagchas Officer against Sima, Maya and others which is still pending. It is the categorical assertion of PW4 in his evidence that the complainant-present appellant and his brothers "never possessed the disputed land".
PW5, one Mohan Lal Bose is the deed writer and he claims to have written the registered kobala. PW5 states that Smt. Mayarani Sarkar and Smt. Sima Mitra made the deed in favour of some other persons. Those persons are Brajadulal De Sarkar, Dhananjoy De Sarkar, Rabindra Nath De Sarkar and Rampada De Sarkar. The deed has been marked as Exbt.1 and 1(i). In his cross-examination PW5 states that part of the consideration money was paid before the Sub- Registrar and, part earlier. The Ld. Trial Court was pleased to examine the accused persons under Section 364 CrPC and all the accused persons denied the charge under Section 379 IPC.
Sri Satadru Lahiri, Ld. Advocate and Amicus Curiae submits that there has been a non-appreciation of evidence by the Ld. Trial Court. Due to such non-appreciation the judgment is perverse. Sri Lahiri argues that the Ld. Trial Court ought not to have taken into consideration the evidence pertaining to the pendency of the Bhagchas Case which was not a material Exbt. before it.
Ld. Amicus Curiae makes the further point that out of five PWs three were eyewitnesses to the incident and, therefore the defence has utterly failed to make out a case that such an incident never happened.
According to Ld. Amicus Curiae the evidence of PW2 is specific with regard to the ownership of the land by the appellant-complainant as well as the occurrence of forcibly cutting away the paddy attracting the mischief of Section 379 IPC. Although in the evidence of PW4 there arises a dispute with regard to the possession of the land by the appellant-complainant, on the other hand, PW5 refers to a registered kobala in favour of the appellant and therefore contradicts the evidence of PW4.
Relying on two judgments of the Hon'ble Apex Court reported in AIR 1962 SC 1788 in the matter of K. Chinnaswamy Reddy vs. State of A.P. (at para 7) and 2014 (4) SCC 54 in the matter of Chhotan Sao & Anr. vs. State of Bihar (at para 16), Sri Lahiri argues that an order of acquittal can be set aside if it is noticed by the Ld. Appellate Court that material evidence has been overlooked by the Ld. Trial Court. In Chhotan Sao' Case (supra) Sri Lahiri points out that the inadequacy of an investigation having failed to produce a vital document or piece of evidence at the trial must be strongly dealt with so that there is little chance of avoidable acquittals.
Therefore, Ld. Amicus Curiae makes a strong pitch for remand of the case before the Ld. Trial Court so that the material evidence could be considered upon due application of mind.
Per contra, Sri Subir Banerjee, Ld. Additional Public Prosecutor submits that a bona fide issue arose before the Ld. Trial Court as to who was the owner of the paddy. Reiterating the evidence on record before this Court Sri Banerjee submits that from the evidence of PW5 (supra) it is clear that a registered Kobala or deed was executed on 11th March, 1980 and the offence was allegedly committed sometime in May, 1980. While PW2 has stated that he ploughed the land on behalf of the previous owners and, not on behalf of the present appellant-complainant, PW4 has stated that the disputed land was never possessed by the complainant and his brothers.
Ld. Additional Public Prosecutor also raises the point as to whether the land was sold along with the paddy. In addition to the dispute with regard to ownership of the land between the complainant and the original owners, Maya and Sima, it is also not clear as to who was entitled to enjoy the possession of the paddy grown on the disputed land.
According to Sri Banerjee, evidence connected to the disputed land and share of the proceeds of the land have emanated from the statements of several prosecution witnesses and therefore could not be simply brushed aside by the Ld. Trial Court. The claim to a remand at this stage made by Ld. Amicus Curiae after the lapse of several years is strongly resisted to by the Ld. Additional Public Prosecutor. It cannot be forgotten, argues Sri Banerjee, that the accused persons have a right to speedy trial under Article 21 of the Constitution.
Having heard the parties and considering the evidence on record as discussed above this Court is of the view that several prosecution witnesses have made use of the expression 'disputed lands'. Even the portions of the disputed lands in the plot nos. being .13 decimals in Plot No. 1058 and .26 decimals in Plot No. 1069 have emerged from the evidence of the complainant as well as the other prosecution witnesses.
That the possession of the disputed lands and the share of the produce is the subject matter of litigation in a Bhagchas Case against which an appeal is pending also finds mention in the evidence on record.
This Court therefore does not find that the Ld. Trial Court acted with perversity in taking judicial notice of the disputes with regard to status of the parties in the trial qua the disputed land along with the produce therefrom. In light of the above finding this Court also notices that the fundamental principle of criminal jurisprudence is that guilt must be proved beyond all reasonable doubt and such proof is not satisfied qua the accused in the present case.
Therefore, the order of acquittal passed by the Ld. Trial Court in case No. 136-C of 1980 by its judgment and order dated 25th December, 1989 is not interfered with.
CRA 18 of 1990 stands accordingly dismissed.
Ld. Public Prosecutor is directed to regularise the appointment of the Ld. Amicus Curiae.
Let a copy of this order be sent down along with the Lower Court Records to the Ld. Trial Court forthwith.
Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.
(Subrata Talukdar, J.)