The need for convincing evidence of ownership and theft to establish charges under Section 379 IPC.

JUDGMENT :

Satrughana Pujahari, J. - The appellant, who is the complainant in I.C.C. Case No.61 of 1988/Trial No.51 of 1989 on the file of the learned J.M.S.C., Cuttack, has preferred this appeal challenging the judgment of acquittal of the respondents in the aforesaid case.

2. It appears that the aforesaid complaint was lodged by the present appellant alleging offence under Sections 143/379/34 of I.P.C. against the respondents alleging therein that the respondents in furtherance of their common intention committed theft of fishes from his pond and also the coconuts, bananas etc. which were there in the embankment of his pond. It further appears that before the trial court, the appellant had adduced evidence documentary as well as oral to substantiate his charge. On the other hand, the respondents who have taken a plea of denial of false implication with regard to the possession of the land, have adduced no evidence to prove their case.

3. The trial court taking into consideration of the materials available on record held that the appellant could not prove his possession over the lands and there is discrepancy in the version of the witnesses and there is also material contradiction in the version of the aforesaid witnesses and, as such, acquitted the respondents of the charge framed against them.

4. Learned counsel for the appellant submits that the aforesaid judgment of acquittal is unsustainable in the eye of law inasmuch as the same is perverse. According to him, when the eyewitnesses to the occurrence in no uncertain terms deposed that they found the respondents to be catching fishes in the pond and also removing the coconut, bananas etc., the trial court should not have brushed aside the same on the ground of animosity between the parties and recorded the judgment of acquittal.

5. Learned counsel for the respondents on the other hand defends the impugned judgment of acquittal advancing the submission that there is material contradiction in the version of these witnesses and also the appellant could not prove any convincing evidence that he was the owner of the pond and the fishes and other articles said to be stolen belong to him as well as he had planted the banana trees and coconut trees there and the respondents removed the same. In the aforesaid premises, when the witnesses had animosity with the respondents, their evidence as such has been rightly scrutinized by the trial court and on such scrutiny, found the respondents to be not guilty of the charge, the impugned judgment of acquittal cannot be said to be perverse and as such heeds no interference of this Court.

6. On perusal of the evidence on record, it would go to show that the appellant has not shown any convincing material that he is the owner of the pond as well as the land where from the articles, such as, 50 Kgs. of fishes, some coconuts and banana trees are removed by the respondents by forming an unlawful assembly. The evidence with regard to the removal of the aforesaid articles adduced by the witnesses is also not consistent. The witnesses examined in this case had given different version which contradictory to each other. The evidence of such witnesses as such being not consistent and contradictory, the trial court has rightly refused to accept the same as trustworthy, particularly in the circumstances when it has been proved that the appellant as well as the respondents were in litigating terms. Considering the nature of evidence adduced as stated earlier, such finding of the trial court in refusing to accept the version of the witnesses with regard to the prosecution case to prove the charge against the respondents cannot be said to be a perverse appreciation, more particularly when in this case, there is no convincing material showing that the appellant is the owner of the aforesaid articles and those were taken away from his possession. Even if it is accepted for a moment that the respondents had taken away the fishes from the pond and also the coconuts