A. Misra, J.
1. Each of the five petitioners has been convicted under as. 143 and 379 I.P.C. and sentenced to a fine of Rs. 100/-, and in default, to undergo R.I. for fifteen days under Section 379 I.P.C, while no separate sentence has been awarded under Section 143 I.P.C.
2. The prosecution case is that on 12-1-1964, petitioners came in a body and in prosecution of their common object committed theft of fish from complainant's tank on plot No. 320 in village Dharmakirti. The motive attributed to the petitioners is that they indulged in the aforesaid act at the instigation of the Mohant of Sidha Muth who was ill-disposed towards him. In defence, petitioners denied to have committed theft of fish from the complainant's tank and allege that plot No. 320 belonging to him along with plots Nos. 273 to 276 and the intervening plot No. 322 constitute a ghai covered by one sheet of water without any separate embankments for the tanks on any of these plots. Therefore according to them, they have not committed theft of fish from complainant's enclosed tank. The courts below, on a consideration of the evidence, found that on the date of occurrence, petitioners caught fish, as alleged by the complainant and that the complainant's tank on plot No. 320 is protected by separate bundhs, and as such, does not constitute one continuous sheet of water along with the adjoining plots. On these findings, petitioners were convicted and sentenced, as stated above.
3. Mr. Mohanty, learned Counsel for petitioners assails the convictions on various grounds. It is contended by him that the courts below should not have accepted the interested testimony of the P.Ws.; that the complainant's version is highly improbable; that there is absence of proof of specific acts attributable to individual petitioners and that a gross error has been committed in rejecting on untenable grounds the defence version of the entire area including plot No. 320 constituting one sheet of water. It is further urged that the motive attributed by the complainant to the petitioners having failed, the complainant's case should have been disbelieved. On the other hand, learned Counsel for opposite party contends that the courts below have given due weight to the evidence of the P.Ws. after considering the suggestion of interestedness or otherwise attributed to them and the catching of fish having been proved and it having been established that plot No. 320 has got separate bundhs, the conviction is fully justified.
4. The courts below, no doubt, have found that the testimony of P.Ws. 1, 3 and 5 is interested. At the same time, they have accepted their testimony as it finds corroboration from the testimony of P.Ws. 2 and 4. Of course, P.W. 4 is not a witness originally named in the complaint petition, but this has not been considered as sufficient to discard his testimony. So far as P.W. 2 is concerned, apart from a suggestion that he is related to the complainant, there is nothing else to show that his testimony is interested. When both the courts have preferred to rely on the evidence of the P.Ws. about catching of the fish on the date of occurrence by the petitioners, I do not find any valid reason to differ from them.
5. The next contention of Mr. Mohanty is that the complainant's version should have been rejected as highly improbable on the ground that such a large quantity of fish weighing about four maunds could not have been caught in such a small area, there is no evidence as to the manner in which such a large quantity of fish was disposed of and that the conduct of the complainant in not reporting at the P.S. is incompatible with the truth of the prosecution version. I do not find any merit in these contentions. Even a small area may contain a large quantity of fish which depends on various other factors. The manner in which the fish caught was disposed of is not very material to determine whether there was a catch or not and non-lodging of a report at the P.S. does not necessarily militate against the truth of the complainant's version.
6. Next it is urged by Mr. Mohanty that there is no evidence ascribing specific acts at the time of occurrence to individual petitioners. The prosecution case is that petitioners in a body indulged in catching fish. It cannot be reasonably expected nor is it possible to lead evidence in such circumstances as to the quantity of fish caught by each of the petitioners and the extent of success achieved by each. The evidence is that all of them were engaged in catching fish. Therefore, I do not find any merit in this contention also.
7. The only other point which deserves consideration urged by Mr. Mohanty is the manner in which the courts below have rejected the defence version about the entire area including plot No. 320 forming one sheet of water. There is no dispute that plot No. 320 is recorded as a tank and it belongs to the complainant. Equally there is no dispute that other plots in that neighbourhood such as, plots Nos. 273 to 276 belonging to the Mohant are also recorded as tanks. The only plot intervening between the plots constituting Mohant's tanks and plot No. 320 is plot No. 322, which according to the defence, is a low-lying land, and as such, the entire area constitutes one sheet of water. In support of this contention, defence examined D.W. 1 who is the Tahsildar of the Muth. He has deposed that all these plots constitute one ghai covered by one sheet of water, though it spreads over the area containing different plots belonging to different owners. The trial Court rejected his testimony on the ground that when his evidence differs from the entries in the record-of-rifihts and the plots had not been verified on the spot, his evidence cannot be relied upon. The lower appellate Court has rejected the defence version with the observation that the very fact that complainant's plot No. 320 has been recorded separately as a tank and similarly some of the plots belonging to the Muth have been separately recorded as tanks would go to show that they are identifiable as such at the spot and these plots including the complainant's plot cannot constitute one sheet of water.
8. During arguments, it is not seriously disputed by learned Counsel for opposite party that it is possible in any low-lying area for a number of plots belonging to different owners being covered by one sheet of water. The mere fact that they are recorded as separate plots of different owners cannot exclude the possibility of the entire area being covered by one sheet of water. The courts below, have erred in rejecting the defence version and the evidence of D.W. 1 simply on the ground that because the underlying area is recorded as different plots in the name of different owners, it will not be possible for the entire area form-ing one sheet of water. The positive evidence of D.W. 1 is that the water of the ghai spreads over all these plots including plot No. 320.
The evidence shows that the area in which these plots are situate is a low-lying area. Though different plots have been recorded as tanks in the settlement records, the defence version is that the water spreads over all these plots for want of protective embankments of sufficient height for each plot. The P. Ws. have deposed that plot No. 320 has got ridges. The expression 'ridge' is ordinarily used in relation to agricultural fields and usually of lesser height constituting demarcations between one plot and another. The existence of ridges of such small height cannot eliminate the possibility of the entire low-lying area constituting one sheet of water during certain months in the year. The grounds on which this version of the defence has been rejected by the courts below, as already stated, are not tenable. Therefore, there is no valid reason for rejecting the evidence of D.W. 1 that the said area constitutes one sheet of water during a part of the year. Having come to this conclusion, the question arises whether petitioners can be said to have committed theft of fish on the date of occurrence when it has been found that they actually caught fish there.
This aspect assumes importance, because fish can be the subject-matter of theft only where they are kept in an enclosed tank which restrains them from their natural liberty of moving in the water beyond the limits of the enclosure. If it is found that they are unable to escape from the enclosed tank, they no doubt, can become subject-matter of theft, but not. otherwise. In the present case, when various plots including plot No. 320 are covered by one sheet of water, it follows that the fish could not have been restrained from escaping from plot No. 320 belonging to the complainant to the water covering the neighbouring plots. As such, the possession of fish cannot be said to be exclusive possession of the complainant. Therefore, they cannot constitute subject-matter of theft. This being my finding, petitioners cannot be found guilty for the offence of theft of fish nor by their going there to catch fish in a body it can be said that they shared the common object of committing an offence. On these findings, the conviction of petitioners cannot be sustained.
9. Hence, I allow the revision, set aside the convictions and sentence of the petitioners and direct that they be acquitted of the charges.