Criminal Appeal (U/S) No.14 of 1998 **** Against the judgment, dated 28.02.1998, passed by Shri Shailendra Kumar Pandey, Judicial Magistrate, 1st Class, Siwan, in Complaint Case No. 989 of 1991/Tr. No. 570 of 1998 **** Pramhansh Tiwary, son of late Aslok Tiwary, resident of village Jaijor, P.S. Andar, district Siwan .. Appellant Versus 1. Bindhyachal Dubey, son of late Rucha Dubey 2. Pashupati Nath Dubey, son of late Paras Nath Dubey 3. Rajendra Teli 4. Nagendra Teli, 5. Yogendra Teli, all sons of Kishun Teli 6. Satan Kahar 7. Satyadeo Kahar, both sons of Rampat Kahar 8. Ram Barai Barai, son of Shivanand Barai 9. Rajkishore Barai, son of Ram Barai Barai 10. Ramdaur Barai, son of Sheo Gobind Barai All residents of village Jaijor, P.S. Andar, district Siwan 11. The State of Bihar .. Respondents **** For the Appellant .. Mr. Nawal Kishore Kashya, Adv. For the State .. Mr. Sujit Kr.Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. This appeal is directed against the judgment and order, dated 28.02.1998, passed by Mr. Shailendra Kumar Pandey, Judicial Magistrate, 1st Class, Siwan, for an offence under Sections 147, 148, 2 379, 323, 341 and 447 of the Penal Code by which the accused persons have been acquitted of the charge. The Special Leave to Appeal filed and allowed and the appeal was admitted. 3. The prosecution case, as alleged in the complaint petition that the accused persons 1 and 2 and the complainant is the uncle and nephew and others are their associates and the complainant and the accused persons are in litigating terms, obviously, various time and on the date of occurrence, i.e., 08.12.1991 the accused persons came armed with lathi, bhala, garasa and they took away the crop harvested and get in bojha (bundles) on the land bearing plots no. 4427, 1729, 1175, 4221 and 872 and it is alleged that the bundles of the paddy crops which were kept after harvesting the crop was taken away by the accused persons and when the complainant, Pramhans Tiwari, protested, they did not pay any heed to the protest and it is, further, alleged that accused no. 2, Pashupati Nath Dubey, assaulted the complainant by slap. 4. On the complaint petition the cognizance taken and four witnesses examined on behalf of the prosecution and one witness was examined on behalf of the defence. Out of the four witnesses examined are P.W. 1, Jaleshwar Bhagat, P.W. 2, Chandrama Pandey, P.W. 3, Pramhans Tiwari, and P.W. 4, Munni Choudhary, apart that several documents have been filed which are on record and have been marked as Exhibits 1, 2, 3, 4, 5, 6 and 7, which are documents of the decree of possession, order of the first appeal, L.P.A., preliminary decree, final decree, judgment in Title Suit no. 126 of 1968, appeal decree no. 769 of 1938, depositions in Title Suit No. 126 of 1968 and decree in appeal, 3 dated 24.03.1938. 5. The defence has also filed various documents, which have been marked as Exhibits “A”, “A/1”, “A/2, “B”, “C/1” and “C/2”, which are copy of the order sheet, judgment and depositions. 6. The trial Court, taking into consideration the evidence, held that both the parties are claiming the right, title and interest over the land. They are in litigating terms since long. The Miscellaneous Appeal with regard to the said land is still pending before the Hon’ble High Court. Hence, held that the appellant has bonafide claim over the land it is not a case of a claim in false pretext. The trial Court appreciated the evidence of the witnesses held that the deposition of witness no. 1 does not inspire confidence. The evidence of P.W. 2 is doubtful and P.W. 4 also can not be said to be the independent witness. P.W. 3 in paragraph 17 of his evidence has admitted that the disputed land was in possession of Vindhyachal Dubey since 1947 though he has stated about the decree of possession, but, admitted that no notice was issued under Order 26 Rule 18 of the Civil Procedure Code for delivery of possession. However, he is unable to give the boundary of the land in which the occurrence took place. The trial Court considering the evidence held that the prosecution has not been able to prove the charges beyond reasonable doubts and, hence, acquitted the appellant of the charges. 7. The learned counsel for the appellant, however, contends that there are various documents in support of the appellant and complainant to show that the appellant has got right, title and interest over the land. There is order in appeal and delivery of 4 possession effected in his favour. Hence, it can well be inferred that the appellant has right, title and interest over the land and, further, the accused persons having taken away the crops which were lying on the land after harvesting. 8. Learned counsel for the State, however, contended that the occurrence is of the year 1991 and the offence alleged is of petty nature and more than twenty years have elapsed and, further contends that the case is that between the parties claim the land and criminal Court has no jurisdiction to decide the right of the parties. 9. The prosecution case is regarding the theft of the crop from the agricultural lands. The appellant claims the land. The defence of the accused persons, as appears from the suggestion, that the appellant challenged the possession or prosecution over the land. It has, further, been challenged that prosecution party had not grown the crop. Since the title appeal awaited and so the case has falsely been filed. It is pertinent to mention that the criminal Court has no jurisdiction to decide the title nor has jurisdiction to decide neither who is entitled for possession nor who has got the right, title and interest over the land. The criminal Court can only take into consideration that who was in possession of who had grown crop. However, the oral evidence adduced by prosecution and four witnesses have been examined, but, except the documentary evidence, which is the order in appeal and delivery of possession, there is no evidence that who is in actual possession on the date of occurrence or who had grown the crop. What is relevant for consideration is that who is actually in possession and the accused persons have challenged by way of suggestion about 5 the possession of the appellant. The prosecution has neither led any evidence regarding the possession nor has led evidence that who had filled the land nor who has sown the paddy crop. Hence, the evidence regarding the fact that who had grown the crop is also missing. P.W. 2 is a witness, who is four mile away from the place of occurrence and he appears to be a chance witness that he has stated that he reached the place of occurrence at the time of occurrence by roaming in the village. P.W. 1 is a banihar of the complainant and P.W. 3 is the complainant himself is unable to give the boundary of the disputed land from which theft is alleged. He has stated that in the delivery of possession of the case of 1968 no notice was issued under Order 26 Rule 18 of the Civil Procedure Code. The occurrence is of the year 1991 and, hence, taking into consideration the entire evidence I do not fine that it is a case for interference, hence, this appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 29th day of September, 2011, N.A.F.R., S.A.