S. Barman, J.
1. This revision is directed against the judgment dated April 16, 1957 passed by the Assistant Sessions Judge, Cuttack, in Criminal Appeal No. 80C of 1955, confirming the judgment dated June 11, 1956 of a 2nd class Magistrate of Jajpur, in case No. 237-C1/ST/54 of 1953 convicting the petitioners under Section 379 of the Indian Penal Code and sentencing them to a fine of Rs. 100/- each, in default to undergo rigorous imprisonment for one month each.
2. The relevant facts out of which this matter arises are, shortly stated, as follows : The complainant who was the Karji of the Raja of Madhupur had kept paddy sheaves, belonging to the Raja and reaped from 4.6 acres of land of Gahir Chaka in Bhubanpur village which was in the Khas cultivation of the Raja, -- in the Khala of one Sunkar Biswal of Bhubanpur, as the Raja's own Khala was at a distance. On March 27, 1953 the petitioners forcibly took away the above paddy sheaves worth about Rs. 100/- and thereupon a criminal case was instituted against the petitioners under Section 379 I.P.C. on a charge of theft of the paddy sheaves.
3. The main point for consideration in this case was as to who was in possession in respect of the land in question. The defence in the criminal case was that the disputed land of 4.6 acres, which was the Nijchas land of the Raja, was in the Bhag cultivation of the petitioners for twelve or thirteen years and further that they were paying Rajbhag of the land. The motive imputed to the complainant for instituting the criminal case was to deprive the petitioners of their possession of the land so that the Khamari could take Khas possession of the land.
4. It appears that five witnesses were called on behalf of the prosecution. P.W. 1 was the complainant who gave evidence of the alleged theft. The evidence of P.W. 2 had to be expunged as he could not be tendered for cross-examination. As regards P.W. 4, the prosecution did not rely on his evidence on the ground that he turned out to be hostile. P.W. 5 was a servant of the Raja and, therefore, not a disinterested witness. The only witness on which the prosecution case mainly rested was P.W. 3 being the only independent witness.
5. The learned Counsel for the petitioners argued the case from every point of view. His first contention was that the evidence of P.W. 4 who, according to the prosecution turned out to be hostile, could not be discarded, because merely giving unfavourable testimony was not enough to declare a witness hostile or adverse, for he might be telling the truth which might go against the party calling him. In this connection he cited before me a decision of the Patna High Court Emperor v. Haradhan AIR 1933 Pat 517 (A), (Dhavle and Rowland JJ.) where it was held that simply because a witness is declared hostile it cannot be said that that amounts to a declaration that, his evidence is worthless and unreliable.
The definition that a hostile witness is one who is riot desirous of telling the truth is dead and buried and must be forgotten. In his judgment, Rowland J., while explaining Section 154 of the Evidence Act, expressed the view that, to obtain leave to cross-examine such a witness, all that is necessary is that the witness 'testimony should have been adverse to the party calling him and that the value of the witness testimony in such cases is to be judged in the light of the results of such cross-examination.
His Lordship further observed that it is not correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from consideration altogether and that the correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth. He also cited before me a decision of the Calcutta High Court, Profulla Kumar v. Emperor, AIR 1931 Cal 401 (FB) (B), in support of the proposition that the evidence of such unwilling or adverse (for the word 'hostile' does not occur anywhere in the Evidence Act) witness, could not be discarded so far as it gave the truth, according to him.
In the Calcutta case, Rankin C. J., while delivering judgment, held that the evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness nor is it to be rejected so far as it is in favour of the opposite party.
While applying these principles to the present case, the learned counsel for the petitioners drew my attention to that portion of the judgment of the learned Magistrate where he dealt with P.W. 4, On this point it is worthwhile quoting certain passages from his evidence to decide how far it could be relied upon. In examination-in-chief the witness stated as follows:
'I saw the accused persons thrashing the paddy heaps belonging to Raja Saheb and also belonging to Babaji Naik (voluntarily said) both sowed the land.'
At this stage the prosecution filed a petition declaring the witness as hostile and cross-examined him. The witness in his evidence in course of cross-examination by the complainant said as follows:
'I cannot say when the sowing of these fields took place. I have no land nearby the lands of Raja. So I cannot say as to who had done the agricultural operations there of that year. I have no lands nearby. The accused persons belong to my village. It is not a fact that I am now stating as the accused persons are my co-villagers and as I am gained over by them. I had stated the truth before the Magistrate Sri A. C. S. Rao in this case.'
Then again, in cross-examination by defence the witness said as follows:
'Accused Babaji Naik, Dama Naik and some others of Raja Saheb carried paddy seeds and stacked them in my khala as they had jointly cultivated the land. Accused Babaji Naik was in possession of these lands for 5 to 6 years with Dama Naik, Bibaji Malik and Bai Malik on bhag system. The aforesaid persons and men of Raja both sowed the same lands on the same day. Bai Mallik and Rajib Malik have kept their paddy in my khala in my sima after thrashing.'
I have considered the evidence of this witness very carefully. As I have already discussed, I think his evidence was otherwise admissible in evidence and should be considered on a par with that of the other witnesses. On merits, however, the evidence of this witness was most unconvincing. He himself admitted that he could not say when the sowing of the fields took place and that he had no land near the lands of the Raja. With regard to his evidence in cross-examination, both by the complainant and defence, I cannot accept him as a truthful witness.
His evidence, on the face of it was full of contradictions. The very trend of his answers to the question put to him clearly showed that he was an unreliable person and no credence should be given to his evidence whatsoever. His evidence did not help either the prosecution or the defence. I, therefore, take the view that his evidence should be discarded not on the ground o alleged hostility but on the ground of its thorough unreliability.
6. The learned Counsel for the petitioners then contended that the evidence of P.W. 3 on which the prosecution mainly relied, did not prove as to who grew the crop on the land in question. In reply to that, it was argued on behalf of the opposite party that the evidence of this witness clearly proved the complainant's case. A certified copy of the evidence of P.W. 3 was placed before me for ready reference. The relevant portion, of the evidence of P.W. 3 can be usefully quoted here for consideration.
'About 15 months back ............... I saw the accused persons thrashed the paddy belonging to the Raja Saheb of Madhupur and removed that. ...... ...... ...... The case relates to produces of the land known as 'Gahira Chak' in Bhubanpur Mouza. The land is A. 4.26. I have seen all the operations of cultivation in that field. The first ploughing was done in the month of Baisakh.
The first ploughing continued for two days and the sowing also for two days. I have lands close to it. There were other persons present on that day but I cannot give their names. I have seen P.W. 2 sowing in his land on the day of broadcasting of the field. I cannot say for how many days the broadcasting carried on in my own field.'
The learned Assistant Sessions Judge-carefully considered the evidence of P.W. 3 and rightly took the view that this witness (P.W. 3) proved the fact that the land in question was in the Khas cultivation of the Raja and that this witness also proved the other facts of the complainant's case, Apart from the evidence of the witnesses, it appears from the written statement of the petitioners themselves that they had taken paddy of the land in question during the relevant year.
7. It was next argued on behalf of the petitioners that the defence evidence and documents' were not thoroughly examined by the lower Courts. It was contended that the Criminal Court should have, on consideration of the documents, left the matter to be decided by Civil Court. In this connection, my attention was drawn to the documents, being Exhibits A series, C. D. and E. I am afraid, I cannot accept this contention of the petitioners.
When the Courts below had before them clear evidence of the witnesses, examined in the case, who proved the fact that the Gahira Chak disputed land was cultivated by the Raja's men who also reaped the paddy sheaves and kept them in the Khala of P.W. 4 and furthermore, when it was clearly established that the plea of the petitioners regarding their previous bhag cultivation of the land for a long span of years, was not borne out by any acceptable material before the learned Magistrate and further when the petitioners themselves admitted the fact of removal of paddy sheaves by them, I do not see why the Criminal Court should shirk its duty and not decide the case on the materials before it,
8. I find that both the learned Magistrate and the lower appellate Court considered this matter from every aspect. Their findings were based on and substantiated by evidence. I am perfectly satisfied by the manner in which both the lower Courts assessed the evidence. In the light of the evidence that was adduced and accepted in courseof the trial, the lower Courts came to a findingthat the petitioners were guilty of the offence theywere charged with. I cannot see why this Courtshould, in revision, interfere with such findings. Theview, that the lower Courts took, was a possibleview that could be reasonably taken on the factsand circumstances of the case proved by evidence.
9. In this view of the matter, I do not seewhy I should interfere with the findings of thelower Courts. The result, therefore, is that thisrevision petition is dismissed.