Theft conviction can be upheld based on the sufficiency of evidence presented by the prosecution to establish ownership of the stolen property.

P. N. Harkanli, J.

1. APPLICANTS Kishan Lal, Khusi Lal, Mohan, Brindavan and Atar Singh were convicted u/Sec. 379 IPC and sentenced to pay a fine (sic) of defaulting applicant was ordered to undergo two months rigorous imprisonment. The sentences not being appealable the applicants preferred a revision which was dismissed by the learned Additional Sessions Judge. Thereupon this second revision was filed.

2. THE prosecution case was that Ajudhi had raised the potato crop in question and that the applicants forcibly cut and removed that crop on 6-2-72 at 7 a. m. and thus they committed an offence of theft.

The three applicants namely, Krishan Lal, Brindavan and Atar Singh admitted that they had cut and removed the crop but contended that the crop had been raised by them after purchasing the land from the brother in law of Ajudhi under a registered sale-deed and so there was no question of theft. The other two applicants denied having removed the crop.

3. THE complainant entered the witness box as PW 1 and examined two witnesses Ram Swarup (PW 2) and Chokhey Lal (PW 3) who stated that the crop belonged to the complainant and it was forcibly taken away by the applicants.

4. BOTH the courts below accepted this evidence.

The learned counsel for the applicants relied strongly upon the registered sale-deed executed by the complainant's brother in law Sultan Singh and contended that it showed that the crop must have been raised by the applicants after purchasing the land. Alternatively he contended that in view of this sale-deed there could be no doubt that at least the applicants were setting up a bona fide cLalm to the crop and in that view of the matter it could not be said that they had committed theft. This argument was considered by the learned Sessions Judge who rejected it with the following observations ;-

"It was not disputed on behalf of the revisionist that Ajudhi is atleast one of co-tenure holders of plot No. 64. The suggestion of the revisionists was that they had raised this crop but they have produced no evidence and in my opinion the mere suggestion cannot take the place of evidence. Even otherwise I find that it was not possible for the revisionists to cultivate any portion of plot No. 64 without the consent of Ajudhi as it is not shown that their transferor Sultan Singh was exclusively in possession of plot No. 64. He had transferred only 1/3 share in his plot and as such the revisionists Brindawan and Atar Singh could not sow the potato crop in this plot after obtaining the sale deed from Sultan Singh."

5. THIS observation of the learned Sessions Judge appears to be sound. After all if the complainant led evidence to show that the crop belonged to him and no attempt was made on behalf of the applicants to rebut that evidence by producing even a single witness to show that the applicants had raised the crop, there could hardly be any reason for not accepting the direct evidence of three witnesses produced by the prosecution on this point, Further, when the complainant was admittedly co-sharer in the plot it is inconceivable that the applicants could have raised the crop in the entire plot. In the circumstances, it seems to me to be clear that there was hardly any possibility of the applicants cLalming the crop bonafide. it is obvious that merely asserting that the crop belonged to them without any reasonable basis for such assertion, cannot be considered to be setting up a bona fide cLalm.

6. LEARNED counsel for the applicants then contended that neither the complainant nor any of his witnesses had expressly stated that the complainant had raised the potato crop in question. It is true that they have not stated this in so many words, but when they say that the crop belonged to the complainant it necessarily means that the crop was raised by the complainant and their evidence which was totally unrebutted cannot be rejected merely because the complainant and his witnesses did not say in so many words that the com