BHARAT PADHAN Vs. STATE

JUDGEMENT

(1.) The three petitioners were convicted under Sections 379 and 352, I.P.C., and sentenced to pay a fine of Rs. 15/- each in default to undergo rigorous imprisonment for two weeks each by the Sub-Magistrate of Kudala. On appeal, the Additional District Magistrate of Ganjam set aside the conviction under Section 352, I.P.C., but maintained the conviction under Section 379, I.P.C., and reduced the sentence to a fine of Rs. 10/- each.

(2.) The prosecution case was that on the 26th of September, 1949 the three petitioners (who are brothers) cut and removed five branches of Babul trees standing on the southern ridge of the complainant's land in. village Pituapali, Police Station Kudala and in his possession. The petitioners admitted the cutting of the branches but pleaded that the trees belonged to them, haying been planted there by their father and that they acted, therefore, in exercise of their right.

(3.) In view of the admitted cutting of the branches of the Babul trees the main question for consideration by both the Courts was whether the trees were in the possession of the complainant or else whether they were in the possession of the petitioners. The complainant examined himself and five other witnesses to prove his possession over the trees. He stated that the trees were on the ridge for about twelve or thirteen years and that he used to cut branches from the trees now and then and thus exercise his right of possession over the trees. P.W. 5, Sola Padhan further states in his cross-examination that two years ago the complainant removed some branches of the said trees when they fell down due to strong breeze.