HIGH COURT OF MADHYA PRADESH AT JABALPUR
SINGLE BENCH: HON’BLE SHRI JUSTICE SUBHASH KAKADE
Misc. Criminal Case No.18938 of 2014
APPLICANT : Gurudayal
RESPONDENTS : Indal & two others
Shri Devendra Kumar Shukla, Advocate for the applicant.
( O R D E R )
Passed on: 15.05.2015
This application under Section 378 (4) of Code of Criminal Procedure, 1973 in short ‘the Code’ has been filed by the complainant for grant of leave to file appeal against the judgment of acquittal dated 14.10.2014, passed by the learned Second Additional Sessions Judge, Betul, in Criminal Appeal No.82/2014, acquitting the respondents from the offence punishable under Section 379/34 of IPC, by setting aside the judgment dated 28.02.2014, passed in Criminal Complaint Case No.989/2011, by Judicial Magistrate First Class, Betul.
02. The case of the prosecution in brief is that the applicant is the owner of the agriculture land bearing Khasra No.110, Area 8.195 Hectare, Patwari Halka No.17, situate at Mouja Mandai Bujurg, Tahsil & District Betul having possession also and Soyabean crop was standing in the field. On 04.10.2010 the respondents brought tractor- trolley along with eight laborers and illegally started cutting the said crop. The complainant party restrained them, on account of this, the respondents abused and threatening for injury to person. They also committed theft of Soyabean crop worth Rs.20,000/- and also caused loss to the crop of the applicant by means of the tractor driven rashly on his field.
03. The applicant lodged a complaint at Police Out-Post Padhar of Police Station Betul. Since the Police did not took any action, the applicant field a complaint case under Section 200 of the Code for the offence punishable under Section 379, 294 and 506/34 of IPC before the Judicial Magistrate First Class, Betul. After adopting due procedure learned trial Court registered Criminal Complaint Case No. 989/2011 against the respondents for the offence punishable under Section 379/34 of IPC.
04. To prove his case, the complainant examined himself as PW-1, his wife Jhelai (PW-2), and other witnesses Chandrakalabai (PW-3), Banwari (PW-4) and Pooja (PW-5) and also got exhibited documents (Ex. P-1 to P-3). During accused statement, respondents completely denied the evidence put-forth against them and to support their version respondent No.1 Rampal examined himself as DW-1.
05. On the basis of this evidence learned trial Court found that the respondents-accused guilty of the offence punishable under Section 379 of IPC and convicted the respondents-accused and sentenced to undergo rigorous imprisonment for one year and fine of Rs.1,000/- each. An appeal was preferred against their conviction. Learned Appellate Court after hearing the parties and marshalling the material available allowed this appeal and acquitted the respondents from the aforementioned charge. Hence, this application for leave to appeal.
06. Shri Devendra Kumar Shukla, learned counsel for the applicant submitted that learned Appellate Court erroneously exercised the jurisdiction vested in him, hence the impugned judgment is illegal, contrary and is erroneous both of facts and in law. It is further submitted by learned counsel that on the basis of documentary as well as oral evidence this fact has been proved that the owner of the disputed land is the appellant and the respondents has cutting and removing stealthily standing Soyabean crop. Learned Appellate Court failed to see that the judgment and findings of the learned trial Court were just and proper, but learned Appellate Court given benefit of minor contradictions, omissions to the respondents, therefore, permission be granted to appeal against the impugned judgment.
07. Having heard learned counsel for the applicant and after perusal of the record and judgment under challenge, the Court is of the opinion that in this case leave to appeal cannot be granted.
Legal Position – Crop Theft
08. To prove the charge of theft against the accused punishable under Section 379 of IPC the prosecution must prove:-
(1) that he removed movable property.
(2) that the removed from out of the possession of another without his consent and,
(3) that he did so with a dishonest intention.
09. Cutting and removing stealthily standing crop from another’s land would constitute offence under sec. 379 IPC- Malhu Yadav v State of Bihar (2002) 5 SCC 724.
10. If the complainant satisfactorily proved that he has sown and raised the crop on his land recorded in his name and on the other hand the accused failed to show that he has any genuine counter- claim or physical possession of the land or that he grew the crop and cutting and removal of the crop by the accused is proved, then he can be convicted.
11. The Apex Court in case of Ram Ekbal v Jaldhari Pandey reported in AIR 1972 SC 949: 1972 Cr.L.J. 584 held where the question of possession of land and crop on the date of occurrence, is open to doubt, the accused cannot be convicted for theft of crop.
12. animus furandi; the dishonest intention to cause wrongful gain to oneself or wrongful loss to another. Where there is absence of animus furandi and the circumstances indicate that the taking of movable property is in the assertion of a bona fide claim of right, the act, though may amount to a vicil injury, does not fall within the mischief of the offence of theft.
13. Mens rea is necessary for an offence of theft. The ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. For example, where the taking of movable property is in the assertion of a bona fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft – Chandi Kumar v Abanidhar AIR 1965 SC 585 : (1956) 1 Cr.L.J. 496.
14. Where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. In view of the bona fide dispute over land, harvesting the standing crop has been held not an offence of theft.
15. Now the position of law is clear that where there is bona fide counter-claim of the accused or where he succeeds in showing his possession or growing the crop, the dispute would have been a genuine civil dispute.
16. In a case of theft of crops where the dispute centers round the question of possession, it is a civil dispute; hence, no case of theft under Section 379 of IPC is made out.
17. Please see case of Ram Ekbal (supra), State v Vishwanath AIR 1979 SC 1825 CrLJ 1193, Chandi Kumar v Abanidhar AIR 1965 SC 585 : (1965) 1 CrLJ 496 ; Abbarao v Lakshminarayan AIR 1962 SC 586 : (1962) 1 CrLJ 518, K.N. Mehra v State AIR 1957 SC 369: 1957 Cr.L.J. 552, Suvvari Sanyasi v Bodde Palli AIR 1962 SC 586 : (1962) 1 CrLJ 518.
Legal Position – Granting of Leave to Appeal
18. Section 378(4) of the Code says that no appeal shall be entertained except with the leave of the High Court in cases of acquittal. The complainant must obtain the leave of the High Court before appeals are preferred against acquittals. Appeal cannot be entertained except with the leave of the High Court. The High Court has an absolute discretion to grant or withdraw such leave but this discretion to be exercised judiciously.
19. The High Court shall consider any special feature in a particular case and cannot ignore the effect which the granting of leave to appeal without due discrimination may have on the principles of normal presumption of innocence of the accused in our criminal law. It will be better to keep in the mind settled position of law as well as principle laid down by the Apex Court in various cases that by the order of acquittal, the presumption of innocence of an accused is further strengthened and the golden thread which runs through the web of administration of justice in criminal cases that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
20. The High Court while considering to grant leave to appeal against the judgment of acquittal is to be interfered only when there are compelling substantial reason for doing so. Accordingly, unless the High Court is satisfied, considered in the light above, about some indications or error in a judgment of acquittal the High Court may not grant leave.
21. While learned Appellate Court examined this question whether complainant succeed to prove that the Soyabean crop which were cutting and removing stealthily from the field was of possession of the complainant only? found that complainant failed to prove it and given the benefit of doubt to the respondents and acquitted them after marshalling the evidence filed by both the parties.
22. As per documentary evidence Ex.P-1 and P-2 this fact is proved that survey No.110 area 8.195 hectare belongs to Kiran Kumar, son of Gurudayal. But, this fact alone is not sufficient to convict the respondents for the offence punishable under Section 379 of the IPC. As per above discussed legal position this burden is also upon the complainant to prove this fact beyond doubt that the respondents cutting and removing stealthily Soyabean crop which was standing on the field of the possession of Kiran Kumar and Gurudayal.
23. As per Demarcation Report Ex.P-2 this fact is clear that complainant party encroached land area of 0.03 acre of survey No.14/1 which belongs to ownership of respondents and situated along with the land of the complainant and the respondents also encroached land area 0.35 acre of survey No.14/4 which belongs to ownership of Kiran Kumar son of complainant Gurudayal. On perusal of this Demarcation Report Ex. P-3, it is crystal clear that there is existence of dispute between the parties with regard to the demarcation and actual possession of the land. This dispute would have been a genuine civil dispute.
24. During cross-examination Gurudayal (PW-1) frankly admitted this fact that at the time of cutting and removing stealthily the crop of Soyabean he was not present on the spot, but his wife was present, who informed, apprised him regarding this thief, therefore, learned Appellate Court rightly pointed out that Gurudayal (PW/1) is a hearsay witness.
25. Jhelai (PW-2) and other witnesses Chandrakalabai (PW-3) and Pooja (PW-5) were not able to specify the number of tractor, which is not of much importance, but these witnesses also admitted these facts in some or other way that there is no specific demarcation between these adjoining situated lands and both the parties claiming their ownership on the piece of land of each other.
26. In such premises learned Appellate Court did not commit any error and the acquittal of the respondents by the learned Appellate Court is not based on unwarranted assumption or erroneous appreciation of evidence by ignoring valuable incredible evidence, resulting in serious and substantial miscarriage of justice. The failure of the prosecution is also rightly pointed out by the learned Appellate Court which is completely creating doubtful situation. Hence, leave to appeal against the judgment of acquittal dated 14.10.2014 cannot be granted in light of above discussed legal positions.
27. Accordingly, the application for grant of leave to appeal is hereby dismissed at this preliminary stage of motion hearing.