CRIMINAL APPEAL No.20 OF 1993 (U/S) Appeal against the judgment and order dated 04.02.1993 passed in Criminal Appeal No. 128/05 of 1993 by Shri Shiveshwar Narain, 3rd Additional Sessions Judge, Bhabhua. AGANU SINGH YADAV, Son of Late Balrup Yadav, Resident of Village-Sikathi, Police Station-Bhabhua, District-Bhabhua at present residing at village Dadar, Police Station-Mohania, District-Bhabhua. ……….(Appellant). Versus 1. TRIVENI DUSADH, S/o Bhola Dusadh. 2. Batisa Pasi, S/o Bigan Pasi. 3. Babban Pasi, s/o Bigan Pasi. 4. Bodhu Pasi, S/o Kripal Pasi. 5. Radha Pasi, S/o Ram Brichh Pasi. 6. Sheo Kumar Koiri, S/o Mishri Koiri. 7. Balram Koiri, S/o Algu Koiri. 8. Sukhari Ram, S/o Bhukhanu Ram. 9. Badaru Mian, S/o Alamgir Mian. 10. Tahir Mian, S/o Chalu Mian. 11. Sabir Mian, S/o Chekhuri Mian. 12. Mustakim Mian, S/o Chedhuri Mian. 13. Shyam Lal Teli, S/o Name not known. 14. Langur Chamar, S/o Name not known. 15. Murali Bind, S/o Sheo Nath Bind. All residents of Village-Dadar, Police Station Mohania, District-Rohtas. 16. Ganesh Naw, S/o Sakaldip Naw, Resident of Village Pashupipra, Police Station-Mohania, District-Rohtas. ……….. (Respondents) ----------- For the Appellant : Mr. Ravi Ranjan, Adv. : Mr. Ashok Kumar Ray, Adv. For the Respondent Nos. 1, 5 and 9 : Mr. Jai Prakash Singh, Adv. : Mrs. Arti Singh, Adv. : Mrs. Sheela Rani, Adv. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *********** Anjana Prakash, J. The appellant is aggrieved by the judgment of acquittal of the Respondent Nos. 1 to 16 passed by the 3rd Additional Sessions Judge, Bhabhua in - 2 - Crimimal Appeal No. 128/05 of 1993 by judgment dated 04.02.1993 thereby allowing the appeal and setting aside the conviction passed by Judicial Magistrate, 1st Class, Bhabhua in Complaint Case No. 226 of 1989, Trial No. 177 of 1989 by judgment dated 11.08.1992 for the offences under Sections 144 and 379 of the Indian Penal Code. The case of the prosecution is that on 12.06.1989 at about 10 A.M. the respondents along with 14 other persons committed fishing from the pond belonging to Abhimanyu Giri. The learned trial court acquitted the respondents on the submission that there was no evidence on record to show that the pond belongs to Abhimanyu Giri nor had the said Abhimanyu Giri been examined in the court below. In view of the fact that owner of the said articles had not been examined the charge of Section 379 of the Indian Penal Code was totally baseless. Moreover, the accused persons also lay a bona fide claim on the pond in question and it is a well settled principle that in a bona fide dispute on the question of possession of a certain thing no charge under Section 379 of the Indian Penal Code is sustainable. The appellate court also considered that in the background of the dispute between two fractions - 3 - of the village it was important for the prosecution to have examined independent witnesses and in absence of the same the credibility of the prosecution case was reasonably doubtful. For these reasons the appellate court allowed the appeal of the respondents. Having gone through the judgment of the lower court records, I also find that the owner of the pond, Abhimanyu Giri has not been examined and it was important that the person whose articles had been removed and therefore aggrieved should have been approached the court and in absence of the same a case of Section 379 of the Indian Penal Code became untrustworthy. The non-examination of independent witnesses was also a vital issue and in absence of examination of such witnesses the prosecution case must necessarily fail in the facts of the case. In the result, the appeal is dismissed. Patna High Court Dated 3rd December, 2009 NAFR/Vikash. (Anjana Prakash, J.)