IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Prasenjit Biswas C.R.A. 386 of 2001 Bireswar Bera -Versus- Atal Chandra Bera For the Appellant : Mr. Asif Dewan, Ld. Amicus Curiae For the O.P. No. 3 & 5. : Mr. Amal Krishna Samanta, Mr. Subhas Jana, Ms. Mohua Palit. Hearing concluded on : 19.08.2026 Judgment On : 19.08.2026 (In Court:-) Prasenjit Biswas, J:- 1. The instant appeal has been preferred challenging the impugned judgment and order of acquittal dated 31.05.2001 passed by the learned Trial Court in connection with Complaint Case No. 87C/88, whereby the learned Trial Court acquitted the accused from the 2 charge punishable under Section 379 of the Indian Penal Code. 2. Being aggrieved by and dissatisfied with the aforesaid judgment and order of acquittal, the present appeal has been preferred at the instance of the appellant/complainant, assailing the legality, correctness and propriety of the findings recorded by the learned Trial Court. 3. The appellant/complainant contends that the learned Trial Court failed to appreciate the evidence and materials on record in their proper perspective and, consequently, arrived at an erroneous conclusion resulting in the acquittal of the accused. The appellant, therefore, seeks interference with the impugned judgment and order of acquittal in accordance with law. 4. The facts giving rise to the present appeal are briefly delineated hereunder for proper appreciation of the issues involved: “The case land involved in the present proceeding pertains to Plot No. 857, situated at Mouza Mahammadpur under Police Station Nandigram. The said plot comprises a tank and embankment. It is the specific case of the complainant that his father, his uncle, namely, 3 Satish Chandra Bera, and his mother were the owners and possessors of the said case land and they have been enjoying peaceful possession thereof. According to the complainant, the accused persons had no right, title, interest or possession whatsoever in respect of the said plot at any point of time. It has further been alleged in the written complaint that on 19.12.1987, at about 3:00 P.M., all the accused persons, being armed with various weapons, forcibly entered into the case land belonging to the complainant. It is alleged that, after entering the said land, they cut and removed valuable trees standing thereon and also took away betel nuts and coconuts from the property. The value of the articles so allegedly removed was stated by the complainant to be approximately Rs.5,000/- to Rs.6,000/- as on the date of the occurrence. The complainant has further alleged that he and the other persons interested in the property protested against such acts of the accused persons and requested them not to cut or remove the trees and other articles from the land. However, according to the complainant, the accused persons paid no heed to such protest and, 4 despite objection, proceeded to remove the said articles from the case land and thereby committed theft thereof.” 5. In order to prove the case, the complainant cited five witnesses in his favour. Neither any oral nor any documentary evidence was adduced on behalf of the accused persons. 6. During pendency of this case, Respondent no.1, Atal Bera, Respondent no.2, Krishna Bera, Respondent no. 3, Pranab Bera expired and as such, the present appeal stood abated against them. 7. Mr. Asif Dewan, learned Amicus Curiae appearing on behalf of the appellant, has submitted that the complainant has been able to establish the prosecution case against the respondents/accused persons beyond reasonable doubt. According to the learned Amicus Curiae, the evidence adduced by the complainant, particularly the testimony of PW1, who is the complainant himself, substantially supports and corroborates the allegations made in the written complaint. PW1, in the course of his deposition, narrated the circumstances in which the alleged occurrence took place and stated about the acts committed by the 5 respondents/accused persons in relation to the case property. 8. It has been contended by the learned Amicus Curiae that the evidence on record clearly establishes that the case plot was in the exclusive possession and enjoyment of the complainant and his family members and that the respondents/accused persons were complete strangers to the said property. They had no right, title, interest or lawful possession in respect of the case land, nor did they have any authority to enter upon the same or to deal with the trees and other articles standing thereon. According to him, the fact that the respondents had no manner of right over the property assumes significance in the context of the alleged occurrence. 9. The learned Amicus Curiae has further submitted that, according to the consistent case of the complainant, the respondents/accused persons unlawfully entered into the case land and thereafter cut and removed valuable trees standing thereon. It is also alleged that they took away coconuts and betel nuts from the said land. Such acts, according to the learned Amicus Curiae, were committed without the consent or authority of the complainant and in spite of protest being raised by him. Thus, the evidence of PW1, if considered in its proper perspective, 6 establishes the material ingredients of the offences alleged against the respondents/accused persons. 10. It has further been argued that the deposition of PW1 cannot be treated as an isolated piece of evidence, as the material particulars stated by him have received substantial corroboration from the evidence of other prosecution witnesses. The learned Amicus Curiae submits that, on a careful consideration of the testimony of PW1, it would appear that his evidence is broadly consistent with the allegations contained in the written complaint. The material particulars relating to the entry of the respondents into the case land, cutting of the trees and removal of coconuts and betel nuts have been stated by PW1 in his deposition. 11. Mr. Dewan has further drawn the attention of the Court to the evidence of PWs 2, 3 and 4, who, according to him, are witnesses to the occurrence. It is submitted that these witnesses have substantially supported the version of PW1 and have stated, in substance, that on the relevant date and at the relevant time, the respondents/accused persons were present at the case land and were involved in the acts alleged against them. According to the learned Amicus Curiae, the testimony of these witnesses lends assurance to the evidence of the 7 complainant and demonstrates that the prosecution version is not founded merely upon the uncorroborated testimony of PW1. 12. It is also contended that there are no material contradictions or inconsistencies between the evidence of PW1 and that of PWs 2, 3 and 4 so as to render their testimony inherently unreliable. Minor discrepancies, if any, appearing in the depositions of the witnesses are natural and are liable to occur on account of the passage of time and the individual manner in which different witnesses perceive and recollect an occurrence. Such minor variations, according to the learned Amicus Curiae, do not affect the core of the prosecution case and cannot be made the sole basis for discarding otherwise consistent and corroborative evidence. 13. The learned Amicus Curiae has also referred to the evidence of PW5, who was the Prodhan of the concerned Gram Panchayat and who had submitted a report in connection with the dispute relating to the case land. It is fairly submitted that there may be certain discrepancies or deficiencies in the report submitted by PW5. However, according to the learned Amicus Curiae, such discrepancies, by themselves, cannot result in rejection of the entire prosecution case. The evidentiary 8 value of the depositions of PW1 and the other witnesses has to be independently assessed on its own merits, and the evidence which otherwise inspires confidence cannot be discarded merely because the report of the Panchayat Prodhan contains some discrepancies. 14. It is thus submitted that the learned Trial Court failed to appreciate the evidence on record in its proper perspective and did not consider the cumulative effect of the testimonies of PW1 and PWs 2 to 4. According to the learned Amicus Curiae, the learned Trial Court placed undue emphasis upon certain discrepancies and failed to appreciate that the material aspects of the prosecution case remained consistent throughout. The evidence, according to him, sufficiently establishes the involvement of the respondents/accused persons in the alleged occurrence. 15. Finally, Mr. Dewan submits that the impugned judgment of acquittal suffers from improper appreciation of evidence and an erroneous approach to the materials available on record. According to him, had the learned Trial Court properly considered the evidence in its entirety and appreciated the corroborative effect of the depositions of the prosecution witnesses, it would have arrived at a different conclusion. He, therefore, submits 9 that the order of acquittal is not sustainable in law and warrants interference by this Court in accordance with law. 16. Mr. Amal Krishna Samanta, learned Advocate appearing on behalf of the respondents/accused persons, has opposed the appeal and submitted that there is no material available on record which would justify interference with the impugned judgment and order of acquittal passed by the learned Trial Court. According to the learned Advocate, the learned Trial Court, upon appreciation of the evidence adduced by the parties, has rightly extended the benefit of doubt to the respondents/accused persons, and no perversity, illegality or material irregularity has been demonstrated in the impugned judgment so as to warrant interference in appeal. 17. The learned Advocate has contended that the evidence of PW1, who is the complainant, suffers from material discrepancies when compared with the depositions of PWs 2, 3 and 4, who have been cited as witnesses in support of the complainant's case. According to him, the statements of these witnesses are not consistent with one another on material aspects relating to the alleged occurrence, and such inconsistencies go to the root of 10 the prosecution case. It is, therefore, submitted that the evidence of the said witnesses cannot safely be relied upon for recording a finding of guilt against the respondents/accused persons. 18. Mr. Samanta has further submitted that there was considerable and unexplained delay in approaching the learned Court with the complaint. According to him, although the alleged incident is stated to have taken place on 19.12.1987, the complainant did not promptly take appropriate steps before the competent Court and no satisfactory explanation has been offered for such delay. The learned Advocate submits that the unexplained delay assumes significance in the facts of the present case, particularly when the parties were admittedly involved in disputes relating to the property in question. Such delay, according to him, creates a serious doubt regarding the genuineness of the allegations and gives rise to a reasonable possibility of subsequent embellishment or false implication of the respondents. 19. The learned Advocate has also questioned the presence of the complainant at the alleged place of occurrence at the relevant date and time. According to him, the evidence on record does not satisfactorily establish that 11 PW1 was actually present at the case land when the alleged occurrence took place. On the contrary, it appears from the evidence that the alleged incident was first brought to the notice of the complainant by his wife. The learned Advocate submits that, if that be so, the complainant cannot be treated as a direct and natural eyewitness to the occurrence and his testimony regarding the actual acts allegedly committed by the respondents/accused persons requires careful scrutiny. 20. It has further been pointed out that PW2 is the uncle of the complainant and, therefore, is admittedly a close relation of the complainant. According to the learned Advocate, the relationship of PW2 with the complainant, coupled with the admitted existence of several disputes and litigations between the parties, furnishes a reason to examine his evidence with caution. It is submitted that the testimony of a related witness is not liable to be rejected merely because of such relationship, but where the evidence is otherwise found to contain inconsistencies and the parties are admittedly engaged in continuing disputes, the possibility of exaggeration or false implication cannot be completely ruled out. 21. Mr. Samanta has further submitted that several cases and disputes are pending between the parties in respect 12 of the property in question. According to him, the alleged place of occurrence was not the exclusive property of the complainant or his family members, as sought to be projected in the complaint. Rather, the property was joint property and had never been partitioned by metes and bounds amongst the co-sharers. In such circumstances, according to the learned Advocate, the respondents/accused persons, being co-sharers in the joint property, had a lawful interest in the property and could not be treated as trespassers or complete strangers thereto. 22. It is further argued that, being co-sharers, the respondents had an interest in the trees standing upon the joint property as well as in the usufructs arising there from. Therefore, the allegation that the respondents had unlawfully entered into the property and had committed theft by removing coconuts, betel nuts or other produce from the land, according to the learned Advocate, is inherently doubtful and cannot be accepted without clear and reliable evidence establishing the exclusive right and possession of the complainant over the property and the articles allegedly removed there from. 13 23. The learned Advocate has also sought to draw attention to the circumstances in which the respondents have been implicated in the present case. According to him, in view of the pre-existing disputes and litigations between the parties concerning the property, there was sufficient motive for falsely implicating the respondents in the alleged occurrence. It is submitted that the respondents had no connection whatsoever with the alleged incident and that their names have been introduced in the complaint only because of the existing property dispute between the parties. 24. According to Mr. Samanta, the complainant has failed to establish, by reliable and cogent evidence, the essential circumstances necessary to connect the respondents with the alleged offences. The inconsistencies between the depositions of the principal witnesses, the doubtful presence of the complainant at the place of occurrence, the fact that the alleged incident was initially reported to him by his wife, the relationship of PW2 with the complainant, the unexplained delay in approaching the Court and, most importantly, the existence of a subsisting dispute regarding joint ownership and possession of the property, collectively create substantial doubt regarding the prosecution case. 14 25. It is thus submitted that the learned Trial Court, after considering the entire evidence and surrounding circumstances, rightly found that the prosecution had failed to establish its case beyond reasonable doubt and accordingly acquitted the respondents/accused persons. According to the learned Advocate, the findings recorded by the learned Trial Court are based upon proper appreciation of the evidence and are neither perverse nor contrary to the materials on record. There being no compelling or exceptional circumstance warranting interference with an order of acquittal, the appellate Court ought not to substitute its own view merely because another view may also be possible. 26. In the circumstances, Mr. Samanta has prayed that the appeal preferred by the appellants/complainant challenging the judgment and order of acquittal passed by the learned Trial Court be dismissed, and that the order of acquittal in favour of the respondents/accused persons be affirmed. 27. At the time of hearing of this case, reliance has been placed by the learned counsel appearing on behalf of the respondents in case of Ram Ekbal Rai & Ors.-vs- Jaldhari Pandey reported in AIR 1972 SC 949 (Paragraph 12). 15 28. I have considered the rival submissions advanced by the learned Advocates appearing for the respective parties and have carefully scrutinised the evidence adduced by the complainant in support of his case. 29. The complainant, examined as PW1, has deposed that he was present at the place of occurrence at the relevant time and thereby sought to project himself as an eyewitness to the alleged incident. However, such assertion does not find adequate corroboration from the evidence of PW3. In his cross-examination, PW3 stated that PW1/complainant remained present at the place of occurrence only so long as PW3 himself was present there. Such evidence does not materially corroborate the specific version of PW1 that he remained present at the place of occurrence throughout the alleged occurrence and witnessed the incident. On the contrary, the evidence of PW3 creates a degree of uncertainty regarding the actual presence of the complainant at the relevant point of time. The credibility of PW3 also requires careful consideration, particularly as he admitted in his evidence that he had earlier deposed as a witness in a money suit on behalf of the complainant. Thus, the possibility of his association with the complainant and the consequent effect thereof upon the 16 appreciation of his evidence cannot be completely overlooked. 30. There is, furthermore, an admitted delay in lodging the complaint. PW1 himself has admitted that he did not state any reason or explanation for such delay. Though mere delay in approaching the Court is not, by itself, sufficient to discard a prosecution case, an unexplained delay assumes significance when the evidence of the principal witnesses is otherwise found to suffer from material inconsistencies and discrepancies. In the present case, the absence of any satisfactory explanation for the delay, coupled with the other infirmities appearing in the evidence, makes it necessary to scrutinise the prosecution version with greater caution. 31. Material discrepancies are also found with regard to the alleged value of the articles said to have been stolen. PW1/complainant stated that the total loss suffered by him was approximately Rs.5,000/- to Rs.6,000/-. On the other hand, PW3, who was cited as a witness on behalf of the complainant, stated that the total value of the coconuts and betel nuts allegedly taken away by the accused persons was only about Rs.250/- to Rs.300/-. The wide variation between the two versions is not a 17 minor discrepancy, particularly when the alleged loss constitutes an important part of the prosecution case. No satisfactory explanation has been offered for such substantial difference in the valuation of the allegedly stolen articles. 32. The evidence also raises a serious question regarding the complainant's exclusive right, title and possession over the plot of land where the alleged occurrence is said to have taken place. There is nothing in the evidence of PW1 to establish that the disputed plot was under his exclusive possession or that he was the absolute owner thereof. On the contrary, PW3 stated that he could not say whether the ancestral properties, including the plot in question, had ever been partitioned by metes and bounds. This aspect assumes considerable significance in view of the admitted relationship and property disputes between the parties. 33. In Ram Ekbal Raj (supra), the Hon’ble Supreme Court considered the legal effect of a bona fide claim of right in the context of disputes relating to ownership and possession of land, particularly where allegations of theft and unlawful assembly were sought to be founded upon acts committed in relation to the disputed property. The Hon’ble Court emphasised that, where the ownership 18 and actual possession of the property are themselves the subject matter of a genuine and bona fide dispute, the criminal liability for theft cannot ordinarily be sustained merely on the basis that one party asserts exclusive ownership over the property. 34. The Hon’ble Supreme Court further recognised that, where the accused persons acted under a bona fide belief that they had a lawful right or entitlement in respect of the property, the essential ingredients of the offence of theft, particularly the requisite dishonest intention, would require careful and strict scrutiny. A genuine claim of right arising out of a subsisting dispute as to title or possession may, in an appropriate case, negate the necessary criminal intent and render a conviction for theft unsustainable. Thus, where the evidence indicates that the accused acted under a bona fide assertion of their own right in the disputed property, the matter may essentially bear the character of a civil or possessory dispute rather than a criminal act of theft. 35. The aforesaid principle assumes significance in the present case, where the evidence on record indicates the existence of a dispute between the parties concerning the ownership, possession and respective shares in the property in question. In such circumstances, the alleged 19 acts of the respondents/accused persons are required to be examined in the light of the surrounding civil dispute and the question as to whether the necessary dishonest intention constituting the offence of theft has been established beyond reasonable doubt. 36. The evidence of PW3 regarding the existence of undivided shares of the parties in the disputed plot also finds support from the evidence of PW4. PW4, in his cross-examination, admitted that the complainant and accused Atal Chandra Bera were shareholders in respect of their respective shares in the paternal/ancestral properties. Thus, the evidence of the complainant's own witnesses indicates that the property in question was not established to be the exclusive property or possession of the complainant. 37. The evidence of PW4, Nirmal Kumar Maity, further creates doubt regarding the presence of the complainant at the place of occurrence. PW4 stated in his cross- examination that although he had gone to the place of occurrence, he did not find the complainant there and that he accompanied the wife of the complainant to the said place. This evidence is inconsistent with the assertion of PW1 that he was present at the place of occurrence when the alleged incident took place. Such 20 inconsistency cannot be brushed aside as a mere discrepancy, since the presence of PW1 is relied upon to establish his direct knowledge of the occurrence. 38. PW5, Sk. Md. Mahiuddin, the Prodhan of the concerned Gram Panchayat, had submitted a report in connection with the present case. However, his evidence also suffers from material deficiencies. In his cross-examination, he admitted that his report did not specify the number of trees allegedly cut away or the particular variety of trees involved. He further stated that his report did not disclose the respective shares of the co-sharers in the disputed plot, nor did it indicate the quantum or extent of the case property. In the absence of such essential particulars, the report submitted by PW5 does not materially advance the case of the complainant and cannot safely be relied upon for establishing either the exclusive possession of the complainant or the alleged damage and loss. 39. Upon an overall assessment of the evidence of PW1 to PW5, it appears that there are material contradictions, inconsistencies and discrepancies touching the core of the prosecution case. The evidence regarding the presence of the complainant at the place of occurrence is itself inconsistent. The evidence regarding the value and 21 quantity of the allegedly stolen articles is also materially discrepant. More importantly, the complainant has failed to establish by cogent and reliable evidence that the disputed plot was under his exclusive ownership and possession or that the articles allegedly removed from the plot were exclusively owned by him. 40. It is also apparent from the evidence that disputes were already prevailing between the parties in respect of the property. The existence of civil litigation between them is admitted. In such circumstances, the possibility that the present criminal proceeding has arisen out of or has been influenced by the existing civil and property dispute cannot be ruled out. The Court is not required to determine the civil rights of the parties in the present proceeding; nevertheless, the nature of the property dispute becomes relevant while assessing the credibility of the prosecution version and the allegation of dishonest removal of articles belonging exclusively to the complainant. 41. The complainant has also failed to produce any convincing documentary evidence establishing his exclusive title or possession over the disputed plot. Equally, there is no cogent evidence to establish that the coconuts, betel nuts or other articles allegedly removed 22 by the accused were the exclusive property of the complainant. In view of the evidence indicating that the parties had undivided shares in the ancestral property and that the property had not been shown to have been partitioned by metes and bounds, the allegation of exclusive ownership and possession cannot be accepted merely on the basis of the oral assertion of PW1. 42. Another significant circumstance is that none of the articles allegedly stolen from the disputed property was recovered from the possession of the accused persons. While non-recovery, by itself, may not always be fatal to a prosecution, in the present case it assumes significance because the allegation of theft is not otherwise supported by consistent and reliable evidence regarding the identity, ownership, quantity or value of the articles allegedly removed. 43. Criminal liability has to be established on the basis of evidence which inspires confidence and satisfies the required standard of proof. Where the evidence of the material witnesses suffers from contradictions on vital aspects, where the complainant's presence at the place of occurrence is doubtful, where the ownership and exclusive possession of the property have not been established, where the valuation of the alleged loss is 23 materially inconsistent, where there is unexplained delay in lodging the complaint, and where the allegedly stolen articles have not been recovered, the Court would be justified in extending the benefit of doubt to the accused. 44. Considering the evidence in its entirety, I am of the considered view that the complainant has failed to establish his case by cogent, reliable and convincing evidence. The material contradictions and infirmities appearing in the evidence go to the root of the prosecution case and create a reasonable doubt regarding the occurrence as alleged and the involvement of the accused persons therein. The benefit of such doubt must necessarily go in favour of the accused. Accordingly, the prosecution case cannot be accepted merely on the basis of the interested or inconsistent oral testimony of the complainant and his witnesses. 45. Thus, even upon consideration of the evidence of the witnesses cited and examined on behalf of the complainant, the allegations levelled against the respondents/accused persons could not be established beyond reasonable doubt. The evidence on record does not conclusively prove that the alleged incident had occurred in the manner as narrated by the complainant, 24 nor does it establish, with the requisite degree of certainty, that the respondents/accused persons were responsible for the commission of the alleged offence. The material contradictions, inconsistencies and deficiencies appearing in the evidence of the complainant's witnesses, as discussed hereinbefore, create a reasonable doubt regarding the prosecution/complainant's case. Such doubt cannot be overlooked merely on the basis of the allegations made in the complaint. 46. In such view of the matter, I find no merit in the present appeal. The order and findings of the learned Trial Court acquitting the respondents/accused persons deserve to be sustained. There being no compelling ground or sufficient material warranting interference with the well- reasoned findings of acquittal, the same are hereby affirmed. Consequently, the appeal is liable to be dismissed. 47. Accordingly, the instant appeal is, hereby dismissed. 48. The impugned judgment and order of acquittal passed by the learned Trial Court dated 31.05.2001 passed in the Complaint Case No. 87C/88 is hereby affirmed. 49. Before parting with the matter, I deem it appropriate to place on record my sincere appreciation for the valuable 25 assistance rendered by the learned Amicus Curiae appearing on behalf of the appellant. The learned Amicus Curiae has assisted the Court with diligence and has placed the relevant facts and legal propositions for proper consideration. 50. Let a copy of this judgment along with the Trial Court record be sent down to the Trial Court immediately. 51. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees. (Prasenjit Biswas, J.)