Sitaram Rangappa Kaushik & Ors. vs Ukunda Battika Jadhao & Ors.

Since both Criminal Appeal 222/2000 and Criminal Revision Application 31/2000 arise from the judgment and order dated 13-10-1999 passed by the 2nd Additional Sessions Judge, Yavatmal in Criminal Appeal 32/1995, they are heard and decided together.

In Criminal Revision Application 31/2000 challenge is to the acquittal of the respondent Ukanda Jadhao of offence punishable under Section 379 read with Section 427 of the Indian Penal Code (" IPC " for short) recorded by the learned 2nd Additional Sessions Judge, Yavatmal in Criminal Appeal 32/1995 decided on 13-10-1999.

Criminal Appeal 31/2000 challenges the direction 6 of the judgment and order which gives the custody of the seized property (teak wood

logs) to Ukanda Battika Jadhao. By the appellate judgment, the conviction of Ukanda Battika Jadhao for offence punishable under Sections 379 and 427 read with Section 34 of the IPC recorded by the learned Joint Judicial Magistrate First Class, Darwah in Criminal Case 129/1989 is set aside.

Relevant facts shorn of unnecessary details are thus :

Sitaram and his two brothers Ramakant and Ramdas are the joint owners of agricultural land bearing survey 9 admeasuring 9.95 hectares situated in village Lasina. Sitaram separately owns and possesses 2 hectares of land out of the said survey 9 having 150 teak

trees. The accused Ukanda Jadhao and one Madhukar Nagtode cut the teak trees without the consent of Sitaram Kaushik or his brothers and removed the trees causing loss of Rs.50,000/-. This came to light when

Naib-Tahsildar, Yavatmal issued notice to Sitaram for having cut trees illegally. Sitaram lodged police report (Exhibit 47) on 14-3-1989, offence under Section 379 of the IPC was registered against both the accused and charge-sheet filed in the Court of Judicial Magistrate First Class, Darwah. Charge was framed under Sections 379 and 427 read with Section 34 of the IPC, the accused abjured guilt and claimed to be

tried. The defence is that the grandmother of accused Ukanda Jadhao purchased survey 9 in the year 1958 and since then he is in possession of the said land. The defence further is that accused Ukanda himself planted the trees and after cutting then sold them to accused 2 Madhukar.

The learned Magistrate after recording conviction was pleased to order that the seized teak trees or their sale proceeds be given to the complainant Sitaram Kaushik. This judgment and order of the learned Magistrate was challenged in Criminal Appeal 32/1995, which is allowed.

Shri V.G. Bhamburkar, learned Counsel for the revisionist strenuously urged that the learned appellate Judge committed a serious error of law in setting aside the judgment and order of conviction. I

have given anxious consideration to the evidence on record and the judgment and order of the Courts below, and having done so, I am not persuaded to hold that a compelling case is made out to warrant interference in revisional jurisdiction. The constraints on exercise of revisional power are judicially recognized. This Court would be slow to exercise revisional powers unless the judgment and order suffers from a demonstrable perversity, serious error of law or any admissible or relevant evidence is shut out from consideration or inadmissible evidence is considered or there is a serious miscarriage of justice. No infirmity of such nature is brought to my notice.

P.W.1 Sitaram admits that the teak trees were lying on the

spot. P.W.2 Madhao states that he is acquainted with accused Ukanda since 1958 and an admission is extracted from P.W.2 Madhao that the field in which the teak logs were lying is in possession of accused Ukanda since twenty to twenty-five years. P.W.3 Sadashio states that he was engaged in cutting the trees for five to six days and other than Ukanda nobody had been to the field. The learned Sessions Judge, after appreciating the evidence on record, has recorded a finding that it was accused Ukanda who was in possession of the field. The judgment and order of acquittal is predicated on this finding. The reasoning of the learned appellate Judge and the conclusion arrived at that the agricultural field from which the trees were cut was in possession of accused Ukanda is unexceptionable.

I do not see any infirmity in the judgment and order impugned to the extent the accused Ukanda is acquitted by setting aside the judgment and order of conviction recorded by the learned Magistrate.

Criminal Revision Application 31/2000 deserves rejection and is accordingly rejected.

However, having heard the learned Counsel Shri V.G. Bhamburkar for the appellant and Shri Abdul Subhan, learned Counsel for the respondent 1, the direction of the learned appellate Judge that the seized logs or equivalent value be given to accused Ukanda, is unsustainable and Criminal Appeal 222/2000 deserves to be allowed.

The fact that the agricultural field on which the trees were standing was in possession of accused Ukanda does not ipso facto justify the direction to give the custody of the seized logs to accused Ukanda. Accused Ukanda neither established title nor tenancy rights to the field on which the trees were standing. Au contraire, the evidence on record would suggest that accused Ukanda is neither owner nor tenant and that the field is owned by Sitaram. He may not have committed offence punishable under Sections 379 or 427 of the IPC, but then, there is nothing on record to suggest that accused Ukanda planted the trees or he otherwise is entitled to cut the trees and enjoy the fruits of the sale proceeds.

In this view of the matter, Criminal Appeal 222/2000

deserves to be allowed and is accordingly allowed.