Sitaram Rangappa Kaushik vs Ukunda Battika Jadhao And Another
2018 Latest Caselaw 587 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO. 222 OF 2000


 Sitaram Rangappa Kaushik,
 Aged about 49 years, 
 R/o Lasina (Takli), Taluka - Darwah,
 District - Yavatmal.                               ....       APPELLANT


                     VERSUS


 1) Ukunda Battika Jadhao,
     Aged about 39 years, 
     R/o Lasina (Takli), Tq. Darwah,
     District - Yavatmal.

 2) The State of Maharashtra,
     through Station Officer, 
     Police Station Ladkhed, Taluka - 
     Darwah, District - Yavatmal.                   ....       RESPONDENTS

 ______________________________________________________________

           Shri V.G. Bhamburkar, Advocate for the appellant, 
     Shri Abdul Subhan, Advocate h/f. Shri F.T. Mirza, Advocate for
                          respondent No.1.
  ______________________________________________________________

                                    WITH

 CRIMINAL REVISION APPLICATION NO. 31 OF 2000


 Sitaram Rangappa Kaushik,
 Aged about 49 years, 
 R/o Lasina (Takli), Taluka - Darwah,



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 District - Yeotmal.                                      ....       APPELLANT


                   VERSUS


 1) Ukanda Battika Jadhao,
     Aged about 39 years, 
     R/o Lasina (Takli), Tq. Darwah,
     District - Yeotmal.

 2) The State of Maharashtra,
     through Station Officer, 
     Police Station Ladkhed, Taluka - 
     Darwah, District - Yeotmal.                          ....       RESPONDENTS

 ______________________________________________________________

           Shri V.G. Bhamburkar, Advocate for the applicant, 
     Shri Abdul Subhan, Advocate h/f. Shri F.T. Mirza, Advocate for
                          respondent No.1.
  ______________________________________________________________


                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 12-10-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 18-01-2018

 JUDGMENT : 

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.

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2. 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.

3. 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

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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.

4. 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.

5. 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

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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.

6. 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

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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.

7. 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.

8. Criminal Revision Application 31/2000 deserves rejection

and is accordingly rejected.

9. 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.

10. The fact that the agricultural field on which the trees were

standing was in possession of accused Ukanda does not ipso facto

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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.

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

deserves to be allowed and is accordingly allowed.

JUDGE adgokar