S. Acharya, J.
1. This revision petition is directed against the appellate judgment dated 17-9-1966 passed by Sri T. Misra, Sessions Judge, Ganjam-Boudh in Criminal Appeal No. 19 of 1966 maintaining the conviction of the petitioners under Section 379 I. P. C. passed by the trial court, and reducing the sentence of fine passed thereunder from Rs. 200 to Rs. 100 each, and in default to undergo rigorous imprisonment for one month each.
2. The prosecution case, in short, is that the complainant (P. W. 1) had taken lease of the disputed land locally known as Khatadi Kiari, from the Revenue Inspector on 24-7-196.4, and grew paddy thereon. The petitioners on 14-12-1964 forcibly entered upon these lands and cut and removed the paddy crop grown thereon in spite of the remonstrance by P. W. 1, the complainant. The complainant after informing the Revenue Inspector, the Revenue Divisional Officer and the police, filed the complaint in the court against the petitioners.
It is to be noted here, that the disputed lands were the subject matter of a proceeding under Section 145 Cr. P. C. and having been attached in the said proceeding were kept in the management of the Revenue Inspector, who had leased out the said lands to the complainant for Rs. 195 under orders of the Sub-Divisional Officer.
3. The petitioners in defence denied all knowledge about the occurrence and stated that they did not cut and remove the paddy from the disputed lands.
4. Mr. Mohanty, the learned counsel for the petitioners raised the following points for consideration:
(i) The appellate court grievously erred in not considering the departure made by the complainant in his evidence before the trial court from the case presented by him in his complaint petition, specially with regard to the growing of crops by him on the disputed! land.
(ii) The identity of the disputed land has not been established in this case.
(iii) The complainant has not been able to prove by satisfactory evidence that he actually took delivery of the disputed land from the Revenue Inspector after taking the lease of the suit land.
5. With regard to the first point, Mr, Mohanty contends that in the complaint petition it was categorically alleged that there was standing crop on the lands when the complainant took lease of the disputed lands, but during trial P. W. 1 and some of the P. Ws. led evidence tothe effect that the complainant grew the crop after taking lease of the disputed land. So the prosecution is guilty of suppressing the true facts.
In reply, Mr. H. G. Panda, the learned counsel for the opposite party contends that the defence in this case cannot take advantage of the above-mentioned inconsistency, if any, as the above statement in the complaint petition being a previous statement of the complainant was not put to the complainant in his cross-examination as required under Section 145 of the Evidence Act.
It is admitted by Mr. Mohanty that the attention of the complainant was not drawn to the relevant portion of his previous inconsistent statement in the complaint petition which is sought to be utilised as an important contradiction to his deposition with regard to the above point under consideration. The complainant, when he was examined in court, should have been confronted with his previous inconsistent statement, if any, in the complaint petition, in accordance with the provisions of Section 145 of the Evidence Act, in order to give him an opportunity to explain the discrepancies or inconsistencies, and to clear up the particular point of ambiguity.
As that has not been done in this case, and this being a matter of substance and not of mere form, the defence is not entitled to take advantage of any such inconsistency. Moreover, the complainant's case that he grew the crop has been sufficiently corroborated by the evidence of P. Ws. 2 and 3, and has also been supported by even D. Ws. 1 and 2, and the concurrent finding of fact of both the courts below has been that it is the complainant who grew the crop on the disputed land. This being so, this Court in revision has to proceed on the basis that it is the complainant who grew the crop after taking the lands on lease from the Reve-nue Inspector (P. W. 4).
6. Now taking up both the other contentions of the learned counsel for the petitioners regarding the identity of the land and the actual delivery of the disputed land to the complainant, Mr. Panda relied that the complainant is a man of the same village where the lands are situated, and as such he was expected to know the lands. I find it from the evidence of P. W. 1 that he had seen the lands prior to his taking lease of the same, and he knew that they were attached in a proceeding under Section 145 Cr. P. C. between two parties known to him.
Moreover, P. W. 4, the Revenue Inspector deposed that on receiving payment of Rs. 100 as the first instalment of the lease amount, he delivered possession of the disputed land to P. W. 1 on 24-7-64 in the presence of the parties of the said proceeding. This being the evidence.which has been accepted by the courts below, it is not for this Court at this stage to examine the correctness of the said finding. Moreover, the question of identity and/or the delivery of possession is of no importance on the facts and circumstances of this case, as the plea of the accused persons was a complete denial of the occurrence, stating that they did not cut and remove the crops from the disputed lands.
Moreover, the case made out by the witnesses for the defence was to the effect that it was the complainant who reaped the paddy from the disputed land and that the accused persons did not have anything to do with the same. Thus the question, as raised, regarding the identity of the land and delivery of the same to the complainant, would be of no avail for the petitioner's defence.
7. In this view of the matter, I accept the concurrent finding of fact of both the courts below, and agreeing with the finding of the learned Sessions Judge, I maintain the conviction of all the petitioners under Section 379, I. P. C.
8. Mr. Mohanty, the learned counsel for the petitioner at last contended that petitioner No. 1, being the brother of one of the members of the second party in the proceeding under Section 145 Cr. P. C. misht be said to have gone upon the lands, if at all, with some animus. But the other seven petitioners, i.e. petitioners Nos. 2 to 8 did not have any interest in the land or the crop standing thereon, and as such, the sentence of fine of Rs. 100 passed against each of them is rather excessive.
9. In the lower appellate court it was contended that the petitioners Nos. 2 to 8 acted merely as labourers, but the said court could not take that fact into consideration as the same plea was not taken in the trial court. I, however, find that these seven petitioners were no doubt the associates of petitioner No. 1, but there is nothing to show that they were in any way interested in the land or with the crop grown thereon.
It cannot also be ascertained from theevidence on record as to with what degreeof deliberation they associated themselvesin the commission of the crime. In thisview of the matter, the sentence passedagainst these petitioners appears to me tobe somewhat excessive and I, in reducingthe same, hereby order that each of thesepetitioners Nos. 2 to 8 is to pay a fine ofRs. 50 and in default to undergo rigorousimprisonment of one month each. Thesentence passed against petitioner no. 1is, however, maintained as such. Withthis modification in the sentence, asstated above, the revision is dismissed.