( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 112 OF 1998 1. Gokul s/o Bandu Bhogil, R/o Deulgaon, Taluka Paranda, Dist. Osmanabad 2. Vilas s/o Gokul Bhogil, R/o Deulgaon, Taluka Paranda, Dist. Osmanabad. APPELLANTS VERSUS 1. The State of Maharashtra 2. Vikram s/o Tukaram Bhogil, R/o Deulgaon, Taluka Paranda, Dist. Osmanabad. RESPONDENTS .... Mr. Y.S. Choudhari, advocate holding for Mr. S.S. Choudhari, advocate for the appellants. Mr. B.J. Sonawane, APP for the respondent No.1/State. Mr. S.S. Renge, advocate for the respondent No. 2. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 16th November, 2010] JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Additional Sessions Judge, Osmanabad, in Sessions Case No. 35/1993. By the impugned judgement, both the appellants have been convicted for the offence punishable under section 393 read with section 34 of the I.P. Code, and sentenced to ( 2 ) suffer simple imprisonment till rising of the Court and to pay fine of Rs. 10,000/-, each, in default to under simple imprisonment for six (6) months. Out of the fine amount, an amount of Rs. 15,000/- is directed to be paid to the original complainant - PW2 Vikram Bhogil by way of compensation under section 357 (3) of the Criminal Procedure Code. 2. The prosecution commenced on basis of the private complaint case instituted by PW2 Vikram against the present appellants and other 26 accused persons. Stated briefly, the case of complainant PW2 Vikram is that he is owner of five (5) agricultural lands situated at village Dandegaon under Paranda Tahsil. The appellants were clamped with injunction order by the Civil Court in a suit filed by him. He had sown jwar, wheat and sunflower crops in the said agricultural lands. A decree was granted in his favour in the civil litigation. His name was mutated in the concerned revenue record as per the order issued by the Tahsildar. 3. Complainant PW2 Vikram alleged that the present appellants, without any concern with the lands in question, joined hands with other co-accused persons and managed to arrest him and his brother at the Police Station by giving a ( 3 ) false complaint application. The Police officer also had joined hands with the appellants. According to him, on 7th February, 1988, the P.S.O. arrested his servants and relatives and thereafter, the appellants alongwith a large number of other accused persons entered his agricultural lands. The appellants and other co-accused persons thereafter illegally harvested crops and removed the jwar, gram, whear, sunflower, tamarind, etc. He gave report to the Police Station, but it was unheeded and, therefore, he lodged the private complaint. 4. The private complaint case was inquired into before the committal. By following due procedure, the case was committed to the Court of Sessions as required under section 210 of the Criminal Procedure Code. 5. At the sessions trial, four (4) witnesses were examined in support of the charge levelled against the appellants and other co-accused persons. The learned Sessions Judge acquitted the remaining 26 accused persons whereas convicted present appellants for the offence punishable under section 393 read with section 34 of the I.P. Code. 6. Heard learned advocate Mr. Y.S. Choudhari, holding ( 4 ) for Mr. S.S. Choudhary, for the appellants, learned advocate Mr. Renge for the original complainant and learned APP for the State. 7. The significant questions involved in the appeal are thus : (i) Whether the appellants illegally removed the crops from the agricultural lands of the complainant PW2 Vikram on the relevant day, without his consent and with dishonest intention ? (ii) Whether the alleged offence comes within ambit of Section 393 of the I.P. Code ? 8. Perusal of the testimony of PW Vikram purports to show that the appellants got removed jwar, wheat and kardi crops from his agricultural lands on the relevant day. He deposed that the crops worth Rs. 15,000/- to Rs. 16,000/- were stolen away. He corroborates the complaint (Exh-197). He placed on record copy of the decree of the Civil Court rendered in his favour as well as the order of the Tahsildar in the context of the Mutation Entry. Copy of the decree ( 5 ) (Exh-194) supports his contention that the appellants were clamped with injunction. The appellants had no legal right to remove the crops from the lands in question. The testimony of PW3 Ramling purports to show that he noticed that the appellants alongwith several persons were found removing crops of jwar, wheat and gram from the agricultural lands of PW Vikram (complainant). Nothing of much importance could be gathered from his cross-examination. He admits that he was not knowing names of other co-accused persons and knew only the appellants. He further admits that complainant PW Vikram or any member of his family was not seen at the place of the incident. Similarly, PW4 Vithal lends corroboration to the case of the complainant. It is worthy to be noticed that there is no cross-examination directed against PW4 Vithal. Thus, his testimony remained unchallenged. The other two (2) witnesses are PW1 Uttreshwar and PW2 Vikram who are brothers. They claimed to be owners of lands in question from which the crop was harvested and removed by the appellants. 9. There appears no substantial reason to dislodge the versions of the eye witnesses regarding the removal of the crops from the agricultural lands. As stated before, in the teeth of the Civil Court's decree, it cannot be said that the ( 6 ) appellants were entitled to remove the crops being in possession of the lands in question. In other words, their such act amounts to the commission of theft of the crops. The acts of the appellants do not come within ambit of Section 393 of the I.P. Code because there was no attempt to cause any injury to the complainant nor he was put under restraint by illegal means. 10. Considering the foregoing reasons, I do not find any merit in the appeal though the nature of conviction will have to be altered from one under section 393 to Section 379 of the I.P. Code. With this small modification, the appeal is dismissed. [ V.R. KINGAONKAR ] JUDGE NPJ/criapl112-98