CRIMINAL APPELLATE JURISDICTION v. Jitendra Nath Panja & Ors.

first by such person. The person claiming to be the bargadar must, therefore, first establish that the landlord gave consent to his cultivation and for such cultivation the landlord has derived the benefit, the Bargadar has to show that he has delivered the share of produce to such owner. iv. In view of the above reliance has been placed for convicting the accused-respondent under Section 448 of the Indian Penal Code due to possession has been established in favour of the appellant.

5. The Learned Advocate for the State submitted that the documents filed by the parties conclusively stated that the accused Namita Panja to be one of the bargadar in respect of the plot no. 988 of 33 decimal out of total area of 6 79 decimal as declared by the B.L.& L.R.O. which was affirmed by the D.L. & L.R.O. However, the both orders were set aside by the West Bengal Land Reforms and Tenancy Tribunal. Therefore, the point for determination was whether the person who declared a bargadar at one point of time can be construed to be guilty of an offence under Sections 379/448 of the Indian Penal Code or not when such an order is set aside by an Appellate Forum.

6. A circumspection of the witnesses revealed as follows:- a. PW-1 was the complainant of the case. She filed the case against Hitendra Panja, Ashok Panja, Gadadhar Panja, Haradhan Bag, and Sankar Roy. Haradhan Bag and Sankar Roy were absent from court. PW-1 knew all of the accused. She deposed that the incident occurred on 01.12.95 from 2.00pm to 3.00pm. The dispute was over the plot being dag no. 988 in Jigra Mouja. The plot was 79 satak. The dispute arose over 20 satak of land. The year the dispute occurred, PW-1 had cultivated the paddy Sarnamasuri and the yield was very good. She deposed that the accused arrived with rope, bank, sickle, and heso and began to cultivate the crops. PW- 1 and her son Mrinal Kanti Ghosh tried to restrain them, but the accused insulted them with filthy language and threatened to beat them up. They returned, and the accused harvested the crops and took the harvest with them. Before the incident, the accused person went to cultivate their land, and they tried to restrain them, but they paid no heed. Section 144 of the CrPC was imposed. The straw with paddy that was taken was about 22 pons, and the loss 7 of paddy crop was calculated to be about Rs 2200/-. They tried to settle, but the parties could not come to any settlement, resulting in a delay in filing the complaint. The complainant informed her lawyers about the incident. Her lawyers wrote the complaint and read it out to her, after which she signed it and is marked at Ext. 1 and 1/1. During cross-examination, PW-1 stated that her marital home was in Bhimpur under P.S. Jangipara. She was 15/17 years old when the property was purchased. She purchased it after selling her belongings. She does not recall the name of the person she sold her belongings to; however, she knows the name of the person who drafted the deed. The dispute over the land has been continuing between the accused persons and her since 1993. Her sisters have claimed that there was a suit pending regarding the actual titles of the plot of land. She denied that Namita Panja was the bargadar of 33 satak of the plot of land and that she was the recorded bargadar. They had filed a case in the office of BLRO of Chinsurah. Her sister was Panchubala Pal. The land was situated at a distance of seven miles from her marital home. She deposed that she has land in her marital home, and the disputed land was cultivated by her. On the southern side of the land, there was a land of Jhanda Gowala of Naranpur. She has no dispute with the landowners surrounding her plot of land. She could not recall the year she purchased the land. The land has been claimed from her by her sister, and a case is pending. However, later on, PW-1 8 denied that her sister had claimed more share in the suit land. A piece of one bigha land towards the southern side of the suit land was under dispute between the accused persons and her. She deposed that she has not filed any suit against barga records, and no barga records were in existence. The accused people were about to attack her, and they had to leave, but later they returned. Five days after the incident, she went to the P.S. and narrated the incident to the OC. The OC wrote down the incident which the later PW-1 signed upon. Kashi Pandit, Sambhu Das, and Sibu Mandi were all laborers and witnessed the incident. She, however, does not know if they have been witnesses in other cases. It was not a fact that her sister was a co-owner of the land. b. PW-2 is the son of the complainant. His house is situated in Dulla Mauja and is next to the house of Mrinal Babu. He has land in JugraMauja which is half an hour distance from his house. He identified the accused persons Hitendra, Namita, Gadadhar, and Ahok Panja in Court. He stated that Haradhan Bag and Sankar Roy were absent. On 1.12.95, the incident happened at 2/3 pm. His mother was the owner of the disputed land. The land was in Jigra Mouza. The dag no. of the plot is 968. The land measured 79 satak. The dispute arose over 20 sataks out of 79 sataks. In the year in which the incident occurred, they had cultivated the paddy sarnamasuri on the land, and the paddy had yielded good results. On the day of the incident, the accused had entered their land and 9 harvested the paddy with their sickles. His mother and he tried to restrain them, and the accused threatened to beat them. After harvesting the paddy, the accused took the paddy to their place. The paddy which the accused persons had stolen weighed 22 pons and costed Rs 2200/-. Kashinath Pandi, Sib majhi, and many others had witnessed the incident. In cross-examination, PW-1 deposed that his aunt Panchubala Pal also claimed to be the owner of such land. Nanda Rani was his mother. The marriage of his mother was solemnized in Jangipara. She lived in both places. At the northern side of the land, there was the land of Ranjit Hazra. He cannot say who were the owners of the land towards the Southern Side, the Eastern Side, and the Western Side. The total measurement of the land is 79 satak. He filed a suit 20 satak of the land. He has not made any mark of 20 satak. He stated that approximately 33 satak of the land has been claimed by the accused, and they have filed a case. After a hearing by the office of the BLRO, the accused persons were the settled bargadar of the land. The title of land has been appealed. He denied that the accused persons have demarcated the 33 statak of land by Ail and claimed the land to be theirs. He denied that the accused persons were doing Bhag-chas on that land. His aunt was a claimant of such land. A title suit was pending in the civil court regarding the land. In the month of Sravana, Sibu Mudi who was a laborer tilled the land. But he cannot recall the date. He tilled the land towards 10 the North and South Direction. Two Nanglas were there. Sibu Mudi and Upen Mudi had tilled the land. Then again after four or five days later, Sibu and another laborer whose name he could not recall tilled the land. After eight to ten days later, the land was tilled by the home tiller. At last, on the third time on 22nd Sravan, the cultivation was done. But he cannot recall the year or date. On 22nd and 23rd, the plantation of the paddy was done by 15 cultivated laborers. On 22nd, the paddy plantation was done by Suki Barks and Malati Risku. On the 23rd, the cultivation was done by other. He stated that he has filed a few more cases against the accused person. Kashi Pandit and Sibu Mudi are witnesses of such cases but Sambhu Das is not a witness of these cases. His mother preferred an appeal against the judgement passed by the Single Bench of the Hon’ble High at Calcutta to the Division Bench. The judgment was passed in favor of Namita Panja which is still pending. He could not say whether the owners of the surrounding plots of land witnessed the incident. He could not recall the names of the witnesses. With regards to the land he owned, he did not know who cultivated the land that year and who cultivated the year before that. The land consisted of two and a half Bigha of land and was not demarcated with Ail. c. The complainant, namely Smt. Nanda Rani Ghosh, was known to PW-3. The accused, Jitendra Nath Panja, was absent, and others were present, standing in the dock.The incident occurred on 14th 11 Agrahan at about 2 to 3 P.M., and it was four years ago.The disputed land, situated at Jigra Mouza, and the owner of said land, Nanda Rani Ghosh, were known to me. The measurement of said land wastwoand a half Bigha. At that time, Paddy was grown on the land. Mrinal Kanti Ghosh, son of the complainant, was present during the incident. At the time of the incident, the land was entered by the accused with sticks, and all the paddy and khar were taken away from the land. The son of the complainant protested when the accused stole the paddy, and the price of the stolen goods was about Rs. 2,000/-.The dates of Durga Puja and Kali Puja from four years ago could not be recalled by him. Personal land measuring about 41 Bigha, situated on the western side of the disputed land, is owned by him. The dag number and Khatian number of the disputed land cannot be recalled by him. The disputed land was on the eastern side. Other landed property was also owned by the complainant. The names of the farmers who work under the complainant could not be recalled by him. Bargadar is also held by the complainant, but the dag number of the Bargadar cannot be recalled by him. The boundary of the disputed land could not be recalled by him. The disputed land situated by the side of a river was known to him, and it was vacant. Namita Panja was known to him. When the P.O. was visited by him, about 10/15 village persons were found present. The names of those present could not be recalled by him. Whether 12 said land was cultivated by Namita as a bargadar or not is unknown to him. Kashi Mudi and Sibu Mudi were seen by him after walking one mile away from the P.O. The P.O. was left immediately after reaching there by him. Who took away all the paddy from the disputed land cannot be recalled by him but he knows that all the paddy was kept at Mrinal Kanti Babu's farm. Whether any part of the said land was cultivated by Namita in the past is unknown to him. The disputed land runs from north to south. There is no 'Ail' between said land. It was not a fact that Namita was the bargadar of said land.It was not a fact that all the paddy was not taken away from the land of the complainant by the accused. He was examined by the police. d. PW-4 knew the complainant. He had two brothers. He stated that the incident took place on the day of Agrahayan 1401 B.S. in between 2pm and 3pm. The suit land was Mouza of Jigra and belonged to the complainant. The land was cultivated by the son of the complainant. The year the incident took place, the son of the complainant was cultivating the paddy ‘Musuri’. He stated that the accused persons harvested the paddy and brought it in their courtyard. The complainant and his son opposed it, but the accused persons did not take any heed of them. About 29 pons of straw with paddy were cultivated and the value of the crop amounted to Rs 2200/- to Rs 2300/-. Sambhu Das, Sibu Mudi, PW-4 and others witnessed the incident. In his cross examination 13 he deposed that the house of Sambu Das was not at julla of Jigra. He had no cultivated land. The house of the complainant was opposite his house. His son lived in the house of Mrinal Kanti Ghosh. He did not cultivate any potatoes from the land of the complainant being dag no. 630. The accused persons had also filled a criminal case against him and he was one of the accused persons in that case. He had deposed in another case of the complainant in front of the BL&LRO. He further stated that he does not know how to read and write, however he knows how to somewhat sign his name. He could not recall the total land that was in the possession of Nanda Rani Ghosh. He had neither seen the papers of her land, nor could he recall the dag number, the Khaitan number and the measurements of the suit of land. The Anchal Pradhan had built a room in the land of Mrinal babu with the Government with the aid of the Indira Abas Yojana. He did not oppose the accused stealing the paddy at the time of harvesting as he was in the field. He stated that Namita was the bargadar of the land. The courtyard of Namita was five minutes away from her house, however he did not measure the distance with the help of ‘Ail’. The courtyard was under the joint ownership of the father of Namita, the elder brother of her father, her uncle, her sister and Namita herself.

7. Section 147 of the Indian Penal Code states as follows:- 14 “Punishment for rioting. – Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

8. Section 378 of the Indian Penal Code states as follows:- “Theft. - Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Explanation 1.—A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2.—A moving effected by the same act which effects the severance may be a theft. Explanation 3.—A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4.—A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5.—The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. Illustrations (a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft. (b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z's consent, A has committed theft as soon as Z's dog has begun to follow A. 15 (c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction, in order that he may dishonestly take the treasure. As soon as the bullock begins to move, A has committed theft of the treasure. (d) A being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runs away with the plate, without Z's consent. A has committed theft. (e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here the plate was not in Z's possession. It could not therefore be taken out of Z's possession, and A has not committed theft, though he may have committed criminal breach of trust. (f) A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z's possession, and if A dishonestly removes it, A commits theft. (g) A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation of property. (h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft. (i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of Z's hand, and carries it away. Here A, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly. (j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security for the debt, and A takes the watch out of Z's 16 possession, with the intention of depriving Z of the property as a security for his debt, he commits theft, inasmuch as he takes it dishonestly. (k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without Z's consent, not having paid what he borrowed on the watch, he commits theft, though the watch is his own property inasmuch as he takes it dishonestly. (l) A takes an article belonging to Z out of Z's possession without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefor committed theft. (m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent for the purpose merely of reading it, and with the intention of returning it. Here, it is probable that A may have conceived that he had Z's implied consent to use Z's book. If this was A's impression, A has not committed theft. (n) A asks charity from Z's wife. She gives A money, food and clothes, which A knows to belong to Z her husband. Here it is probable that A may conceive that Z's wife is authorised to give away alms. If this was A's impression, A has not committed theft. (o) A is the paramour of Z's wife. She gives a valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft. (p) A, in good faith, believing property belonging to Z to be A's own property, takes that property out of B's possession. Here, as A does not take dishonestly, he does not commit theft.”

9. Section 379 of the Indian Penal Code states as follows:- “Punishment for theft. - Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

10. Section 448 of the Indian Penal Code states as follows:- 17 “Punishment for house-trespass. - Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”

11. In the instant case, the focal point of the dispute between the parties concerned as to who was the legal bargadar of the disputed land to plough the same and reap the harvest. PW-2 during his cross-examination could not say the name of the person who had cultivated the land in question for that particular year or for the year before.

12. There have been several cases pending between the parties as aforementioned with regard to the status of the bargadar to the land in dispute.

13. Evidently, the crops were not harvested by the appellant as transpired from the deposition of the mother and son as aforesaid. The Civil Court is the appropriate forum to determine the right of bargadar against the disputed land entitled to plough the same and claim the usufruct.

14. None of the prosecution witnesses could prove their claim over the land as bargadar and under such circumstances cannot establish their right of sowing and reaping the crops over the said land. The question of theft under Section 379 of the Indian Penal Code did not arise since the prosecution could not prove that the land exclusively belonged to the appellant who had cultivated the same to bear the reaps thereof. 18

15. Since, the dispute concerns an open piece of land, the scope of an offence under Section 448 of the Indian Penal Code is obliterated. The Trial Court has rightly acquitted the appellant.

16. In view of the above discussions, the instant criminal appeal stands dismissed.

17. There is no order as to costs.

18. Lower court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action.

19. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)