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Conversion of Union Parishad to Pourasava

A change in character of the administrative unit only

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High Court Division :
(Criminal Revisional Jurisdiction)
Abu Bakar Siddiquee J
Judgment
February 17th, 2013
Abdul Hashem & another……Convict-Petitioners
vs
State…….Opposite-Party
Penal Code (XLV of 1860)
Section 379
In absence of specification of land, the case of snatching paddy, suffers from inherent infirmity. It is the complainant who is to say from what specific land, the charge for commission of offence has been formulated. The evidence of theft against each of individual accused is lacking and the Courts below does not came to a clear finding of individual liability of each of the accused for the commission of the offence of theft. The evidence regarding, growing paddy by the complainant is very much scanty and insufficient. Both the Courts below have not considered the materials contradictions and omissions and inherent infirmity for which an error has crept in the judgments of the Courts below which is liable to be set aside.
...... (24,26 & 27)
Abdul Mannan vs State, 44 DLR (AD) 60 and Chand Miah vs State, 26 DLR 232 ref.
Shihab Uddin Mahmood, Advocate-For the Petitioners.
Md Harun-ar-Rashid, DAG with Md Nurul Haque, AAG with Delwara Begum (Bela), AAG-For the State.
Judgment
Abu Bakar Siddiquee J : On an application under Section 439 of the Code of Criminal Procedure this Rule was issued calling upon opposite party to show cause as to why the impugned Judgment and order of conviction and sentence dated 8-6-2002 passed by the learned Additional Sessions Judge, 1st Court, Noakhali in Criminal Appeal No. 38 of 2000 dismissing the appeal and upholding the Judgment and order of conviction and sentence dated 16-5-1985 passed by the learned Magistrate, 1st Class, Noakhali in CR Case No. 1444 of 1979 conviction the petitioners under Section 379 of the Penal Code . and sentencing them to suffer rigorous imprisonment for I (one) year each should not be set aside and or such other or further order or orders passed as to this court may seen fit and proper.
2. The facts, relevant for disposal of this Rule is as follows :-
One Mohammad Abu Bakar filed a petition of complaint as complainant before the Sub-Divisional Magistrate, Sadar, Noakhali against the convict-petitioners and others alleging inter-alia that the accused persons being armed with deadly weapons rushed to the scheduled land of the complainant and forcibly cut and took away his paddy worth of which Taka 5,500. Hence, the case.
3. On receipt of the petition of complaint, the learned Magistrate examined the complainant under Section 200 of the Code of Criminal Procedure and issued process for the commission of the offence punishable under Section 379 of the Penal Code.
4. The accused-petitioners were all along absent in this case and in their absence, the. learned Magistrate framed a formal charge against them under the aforesaid Section.
5. In order to prove the charge, the prosecution adduced as many as 4 witnesses. On the other hand, the defence examined none.
6. On closer of the evidence, the convict petitioners were examined under Section 342 of the Code of Criminal Procedure whereupon they abjured their guilt.
7. On conclusion of the trial, the learned Magistrate of the Court below found the convict-petitioners guilty of the charge and attributed the impugned order of conviction as stated above.
8. Thereafter, the convict-petitioners preferred a criminal appeal before the learned Sessions Judge, Noakhali and he subsequently transferred it to the court of learned Assistant Sessions Judge who dismissed the appeal and affirmed the judgment passed by the trial court.
9. Being aggrieved by and dissatisfied with the judgment and order of conviction, the convict-petitioners moved before this court and obtained this Rule.
10. Mr Shehab Uddin Mahmood, the learned Advocate appearing on behalf of the convict-petitioners strenuously argued that there is no specification of the land and, as such, the order of conviction suffers from inherent infirmity. He further argued that since the convict-petitioner entered into the disputed land in ascertain of their contesting claim of right and the removal of the paddy there from does not constitute any offence of theft. He further argued that in order to commit an offence of theft individual liability must be ascertained. In support of his contention he has referred the decision enunciated in a case of Abdul Mannan vs State, reported in 44 DLR (AD) 60. He goes to argue that there is no iota of evidence on the basis of which an order of conviction can be ordered and the evidence of the witnesses are full of contradictions and, as such, the Rule is liable to be made absolute.
11. On the other hand, Mr Md Harun-ar-Rashid the learned Deputy Attorney-General appearing on ·behalf of the Brate strenuously around that all the PWs supported the prosecution case in a harmonious voice mentioning the time, place and manner of the occurrence and, as such, the order of conviction and sentence is liable to be affirmed.
12. I have heard the learned Advocate for both the sides and perused the materials on record.
13. The prosecution has come with an allegation that the accused persons formed an unlawful assembly being armed with deadly weapons and cut and took away the paddy of the informant and thereby committed the offence as alleged by the prosecution.
14. Let me proceed the evidence on record as to how far the prosecution witnesses were able to prove its case beyond any shadow of doubt.
15. PW 1, Mohammad Abu Bakar is the complainant of this case. He deposed that on 25th Srabon, 1386 BS, the accused persons on forming an unlawful assembly entered into his land described in the schedule of the petition of complaint and cut and took away his yielding paddy. He also deposed that the accused persons were 35/40 in numbers and lie tried to resist them but the accused persons did not pay any heed to it and they cut and took away the paddy about 35/40 mounds worth of which 5,500. He also stated that he filed a Title Suit No. 24 against the accused persons and obtained decree. Thereafter, it is admitted by him that the accused persons filed a Misc. ease against such decree which was subsequently withdrawn by them. It is further stated that there was no dispute in respect of such land against the accused persons.
16. PW 2, Abu Bakar Siddique deposed that on 25th Srabon, 1386 BS, at about 7/8 am, the accused persons under the leadership of accused Sultan Ahmed formed an unlawful assembly being armed with deadly weapons and entered into the land of the complainant. He also deposed that they cut and took away the paddy worth of which 5,500 and kept the same on the Courtyard of the accused Sultan Ahmed and he was present at that time of occurrence. It is also admitted by him that his homestead is 60/70 yards away from the house of the complainant. He further deposed that the accused persons were being armed with deadly weapons and they were 50/60 in numbers who cut and took away the paddy. Thereafter he deposed that the land in question is totally the land of the complainant. He further deposed that he cannot say as to who much paddy was cut by whom among the convict-petitioners. It is also admitted by him that at the time of commission of the offence there was a title suit pending in between the parties and a salish was held at that time in presence of the local Chairman.
17. PW 3, Abul Hashem deposed that on 25th Srabon, 1386 BS, at about 7/8 am, the accused persons being armed with deadly weapons entered into the land of the complainant and they cut and took away the paddy and kept the same in the house of the accused Sultan Ahmed. He further deposed that at the time of cutting away the paddy, the complainant tried to resist them but they did not pay any heed to it. It is admitted by him that his homestead is situated 3 miles far from the house of the complainant. It is further admitted by him that there was no Waj Mahfil in their locality on the night following the date of occurrence and He is stated in the land of his brother Siddqullah on the night following the occurrence. He further deposed that he has heard the fact that the owner of the disputed land is complainant He also deposed that he cannot say as to whether there was any civil litigation pending in between the parties in respect of scheduled property.
18. PW 4 Nurunnabi deposed that at about 7/8 am the accused persons under the leadership of the accused Sultan Ahmed being formed an unlawful assemble; entered into the land of the complainant and cut and took away 40 mounds paddy worth of which 5,500. He also deposed that the entire paddy was kept in the Courtyard of the accused Sultan Ahmed and he has seen the occurrence. It is also admitted by him that his homestead is situated at Solukia but he was being stayed in Jahanmara village on that day and there was no Waj Mahfil on the night. It is further admitted by him that the complainant himself was staying in his house on the night following the occurrence. It is also admitted by him that there was litigation in between the parties during the period of occurrence and he cannot say who is the real owner of the disputed land.
19. I have perused evidence and also perused the materials on record. On perusal of the evidence, it appears that the occurrence was taken place on 11-7-1989. It is admitted by PW 1 that he has filed Title Suit against the convict petitioners and obtained decree. It is also admitted by him that the accused petitioner filed a Misc. Case against such decree in the year 1979 but the same has been withdrawn by them subsequently. It is further admitted by PW 2 that at the time of such occurrence a title suit was pending between the parties. PW 3 deposed that he cannot say as to whether any title suit was pending in between the parties or not. PW 4 stated in his deposition in the following manner:-
ÒRwgi `Lj wbqv ZLb ev`x weev`x‡`i g‡a¨ gvgjv wQj| Rwgi cÖK…Z gvwjK †K Zvnv Rvbv †bB|Ó
20. From those evidence of PWs. 2-4 it appears that a Title Suit was pending before the relevant Civil Court at the time occurrence. In this respect, the complainant obtained a decree from the Civil Court regarding the disputed land and a Misc. Case has been instituted by the accused persons. It may so happen that the complainant obtained an ex-parte decree behind the back and knowledge of the accused persons who had to file a Misc. Case against such ex-parte decree.
21. Considering the fact and circumstances and the evidence on record I feel inclined to hold that at least it can be said that a contesting claim of right was accrued in favour of the convict-petitioner over the disputed land. It is bonafide principle of criminal jurisprudence that when a property is removed in assertion of a contesting claim of right, however unjustified that claim may he, the removal thereof does not constitute any theft.
22. A reference may he made from the decision enunciated in the case of Chand Miah and others vs State, reported in 26 DLR 232 wherein it has been held that :-
"To sustain a conviction under Section 379 of the Penal Code it must be shown that 'there is no bonafide dispute of title and possession. In this particular case as has been found by the Trial Court that there is a bonafide dispute of title, I hold that the conviction and sentence under Section 379 of the Penal Code is bad in law."
23. Since, the convict-petitioners rushed to the paddy field in assertion of their contesting claim of right. I am of the view that there was no dishonest intention to steal the paddy.
24. From the schedule of the petition of complaint, it appears that the complainant carved out two acres of land out of five acres as disputed land from the Plot No. 507/508 appertaining to Khatian No. 1249 but he has not furnished land specification of his claimed land. From the charge form, it appears that there was no demarcation of complainant's two acres out of five acres land. It is also a bonafide proposition that a charge of snatching paddy from a certain land must be confined by its specification. In absence of such specification of land, the case of snatching paddy, suffers from inherent infirmity. It is the complainant who is to say from what specific land, the charge for commission of offence has been formulated.
25. The learned Advocate appearing on behalf of the petitioners relied upon a decision enunciated in the case of A Mannan vs State reported in 44 DLR (AD) 60 wherein it has been held that:-
Commission of theft is an individual act and there must be clear evidence in respect each individual accused. For the same reason the court is also required to consider the evidence against all the accused separately and record its findings."
26. On proper assessment of the evidence R/10.
on record, it appears to me that neither the trial Court nor the Court of Appeal below consider the evidence in that manner and record their findings as has been required under the aforementioned case law. The learned DAG for the State conceded that the evidence of theft against each of individual accused is lacking and the Courts below does not came to a clear finding of individual liability of each of the accused in this case for the commission of the offence of theft. In the instant case, the complainant has failed to show that there is no bonafide dispute of title or possession over the land rather it is admitted by PW 4 Nurunnabi that there is a land dispute in between the parties at the time of occurrence.
27. Let me proceed to scan the evidence on record and see therefrom as to how far the witnesses were able to corroborate each other. The PW 1, the informant in this case who stated that lie was present, in a Waj Mahfil in the night following the morning of the occurrence and he went to disputed land from that Mosque after offering Fazar prayer and saw the accused persons to encroach into his land. PW 4 Nurunnabi deposed that there held no Waj Mahfil in the night followirig the occurrence. PW 1 stated that he cannot say as to whether there held any Waj Mahfil in the night following the date of occurrence. Thus, all the PWs have contradicted each other regarding the existence of Waj Mahfil. PW 1, the complainant stated that there is no litigation in between him and the accused persons before such occurrence whereas PW 2 & 4 stated that at the time of occurrence a suit was being pending in between the parties. The PW 3 stated that he cannot say as to whether there was any Title Suit pending in between them at the time of occurrence. It is very much necessary to prove on the part of the complainant that he used to grow paddy in the disputed land before such occurrence. But the complainant alone with his witnesses stated that the accused persons cut and took away his paddy and kept it in the house of the accused Suitan Ahmed. But the evidence regarding, growing paddy by the complainant is very much scanty and insufficient. Both the Courts below have not considered the materials contradictions and omissions and inherent infirmity for which an error has crept in the judgments of the Courts below which is liable to be set aside.
28. In the result, the Rule is hereby made absolute. The impugned Judgment and order of conviction and sentence dated 8-6-2002 passed by the learned Additional Sessions Judge, 1st Court, Noakhali in Criminal Appeal No. 38 of 2000 dismissing the appeal and upholding the Judgment and order of conviction and sentence dated 16-5-1985 passed by the learned Magistrate, 1st Class. Noakhali in CR Case No. 1444 of 1979 is hereby set aside.
29. The petitioners and their sureties are discharged from their respective bail bonds.
Let a copy of this judgment along, with LCR be sent to the concerned court at once.

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