Shobhan Murmu v. The State of Jharkhand

CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Petitioner For the State : Mr. Rajeev Ranjan Tiwary, Advocate : Mr. V.S. Sahay, A.P.P. --------- ------- --------- Oral Order in Court 07Dated 24th August, 2022 The present Criminal Revision Application has been filed on behalf of the petitioners by challenging the judgment dated

27.02.2017 passed in Criminal Appeal No.45 of 2010 by the learned Additional Sessions Judge, Pakur, by which, the said Criminal Appeal has been dismissed and thereby, affirming the judgment of conviction and order of sentence dated 30.11.2010 passed by Sri. Shiv Pujan Tiwari, Judicial Magistrate, Pakur in connection with trial No.122/2010, arising out of G.R No.724 of 2006, by which, the petitioners have been convicted for the offences under Section 144 and 379 of the Indian Penal Code and have been sentenced to undergo Rigorous Imprisonment for a period of six months. 2. Heard Rajeev Ranjan Tiwary, learned counsel for the petitioners and Mr. V. S Sahay, learned counsel for the State. 3. The prosecution case, in brief is, that on 02.12.2006 at about 10:00 A.M., the accused persons along with 5-6 other persons, armed with bomb, pistol, bow and arrow cut the paddy crops of the Informant and carried the same and the value of the paddy crops was worth Rs.10,000/-. 2

4. Mr. Rajeev Ranjan Tiwary, learned counsel for the petitioners has submitted that the impugned judgments and order passed by the learned Court below are not sustainable in the eyes of law. It is further submitted that on the basis of the said F.I.R, a case was registered under Sections 144 & 379 of the Indian Penal Code against these petitioners along with other accused persons. It is further submitted that the learned Courts below have wrongly appreciated the evidences brought on record by the prosecution, despite the fact that the prosecution has miserably failed to prove the prosecution case beyond all reasonable doubts and the learned Court below have convicted the present petitioners on the basis of conjectures and surmises. It is submitted that the petitioners are the co-sharers of the informant. It is submitted that even the prosecution witnesses had admitted that there is a land dispute between both the sides. Hence, the judgments and order passed by the learned Courts below may be set-aside and this criminal revision application may be allowed. 5. Mr. V. S Sahay, learned counsel for the State has opposed the prayer of the petitioners and has submitted that the judgments and Perused the records of this case and considered the order passed by the learned Courts below are fit and proper and no interference is required. 6. submissions of both the sides. 7. 8. 9. It transpires that this is a case of theft of paddy. It further transpires that both the sides are co-sharers. It has been held by Hon’ble Supreme Court in the case of Suvvari Sanyasi Apparao and Anr. vs. Boddepalli Lakshminarayana and Anr. reported in AIR 1962 SC 586 at para 9 as follows: “Para-9:- We are not concerned in this case with the declaration under the Press and Registration of Books Act. A declared keeper of the Press is not necessarily the owner thereof so as to be able to confer title to the 3 Press upon another. The ownership of the Press is a matter of the general law and must follow that law. Whether Pappala Chinna Ramadasu was not only the declared keeper of the Press but also its owner can only be effectively decided by the Civil Court. For purposes of Criminal law, the evidence prima facie pointed to a transfer of the Press by Pappala Chinna Ramadasu and Govindachari to Kuna Appala Naidu. The evidence prima facie also established that the appellants had taken possession of the Press under a bona fide claim of right, and that, in our opinion, was sufficient to dispose of the present case. The Additional strict and Sessions judge, Srikakulam, had rightly held that the matter was for the decision of the Civil Court, and that this was not a case of theft under the Indian Penal Code, and had rightly directed the acquittal of the appellants. The learned Judge of the High Court considered the declaration by Pappala Chinna Ramadasu, which continued unchanged, as sufficient to prove an offence of theft. In our opinion, in the circumstances and in the light of the finding given by the District and Sessions Judge with regard to Ex. D-2, it was necessary to go further to see what right Pappala Chinna Ramadasu had to the Press at all. If this had been considered, the learned Judge would have seen that there was some doubt about the right of Pappala Chinna Ramadasu to transfer the Press in 1955 to Boddepalli Lakshminarayana, and further that the defence that the appellants took possession of the Press under a bona fide claim of right was a good defence entitling them to an acquittal.”

10. It has been held by Hon’ble Supreme Court in the case of Chandi Kumar Das Karmarkar and Anr. vs. Abanidhar Roy reported in AIR 1965 SC 585 at para 5, 6, 7 and 10 as follows: “Para-5:-Now the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. This court in Criminal Appeal No. 81 of 1961, D/- 5-10-1961, S. Sanyasi Apparao v. Boddepalli Laksminarayana, 1962 (Supp) 1 SCR 8 : (AIR 1962 SC 586) observed as follows: "It is settled law that where a bond fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance of colour of a legal right." By the expression "colour of a legal right is meant not a false pretence but a fair pretence, not a complete absence of claim but a bonafide claim, however weak. This Court observed in the same case that the law was stated in 2 East PC 659 to be : 4 "If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal." and referred to 1 Hale PC 509 that "the best evidence is that the goods were taken quite openly". The law stated by East and Hale has always been the law on the subject of theft in India and numerous cases decided by Indian Courts are to be found in which these principles have been applied. Para-6:- Niyogi J. in his judgment also referred to some of the decisions of the Calcutta High Court and we find ourselves in particular agreement with the following statement of the law in Hamid Ali Bepari v. Emperor, ILR 52 Cal 1015: (AIR 1926 Cal 149): "It is not theft if a person, acting under a mistaken notion of law and believing that certain property is his and that he has the right to take the same . . . . . . removes such property from the possession of another." Para-7:-The question that arises is whether the finding of the Additional Sessions Judge, Burdwan that there was no dishonest intention could be said to be wrong and required to be set aside? In this case the complaint filed the complaint against 21 persons charging them with numerous offences one of them being theft. The Magistrate summoned only three persons and framed a charge under S. 379, Indian Penal Code. One of the three persons was acquitted and the two appellants were convicted. It is clear that the case was much exaggerated by the complainant. Theft was said to have taken price on the 13th and 14th January, 1958. There was hardly any evidence about the occurrence on the first date and even the evidence in respect of the second day was slender and interested. But as it has been believed we do not say more and accept the finding that fish were caught by the appellants that least on one day. The accused no doubt denied catching fish and this might have shown that they had a dishonest intention but they also brought evidence to prove alternatively that after clearing the tank of for some religious ceremony not on the two dates alleged but four days earlier. This was said to have been done under a bona fide claim of right and their plea was accepted by the Additional Sessions Judge, Burdwan. Para-10:- In our opinion there was an absence of the animus furandi and the circumstances bring this case within the rule that where the taking of moveable property is in the assertion of a bond fide claim of right, the act, though it may amount to a civil injury, does not fall within the offence of theft. In this view of the matter we are of opinion that the acquittal of the appellants ought not to have been set aside. We accordingly allow the appeal and setting aside the conviction of the appellants order their acquittal. The fines if recovered shall be referred to them.” they had caught 5

11. In view of the law laid down by Hon’ble Supreme Court, it is well settled that in a case of bona fide land dispute, no offence of theft of paddy crops is made out as both the sides i.e. the complainant and the accused persons (i.e. the petitioners) are the co-sharers of the land in question. 12. Under the circumstances, the judgment dated 27.02.2017 passed in Criminal Appeal No.45 of 2010 by the learned Additional Sessions Judge, Pakur, and the judgment of conviction and order of sentence dated 30.11.2010 passed by Sri. Shiv Pujan Tiwari, learned Judicial Magistrate, Pakur in connection with Trial No.122/2010, arising out of G.R No.724 of 2006 are set-aside in the interest of justice and the petitioners namely Shobhan Murmu, Arjun Murmu, Barka Murmu and Justin Murmu are acquitted for the charges under Sections 144 & 379 of the Indian Penal Code and they are discharged from their liability of their respective bail bonds. 13. Accordingly, this Criminal Revision Application No.583 of 2017 is allowed and stands disposed of. 14. Let the L.C.R be sent back to the learned court below at once by the office. (Sanjay Prasad, J.) Raja/Saket/- N.A.F.R.