Patna High Court
Jaigi Uraon And Ors. vs Emperor on 7 December, 1927
Equivalent citations: 119IND. CAS.887, AIR 1929 PATNA 502
JUDGMENT Macpherson, J.
1. This rule has been issued to consider the convictions and sentences of six Uraon residents of Aine in thana Lohardaga who have been convicted under Section 379, Indian Penal Code of theft of a large number of sakhua trees from the rakhat jungle of the proprietor of the village being survey plot No. 379, and have each been sentenced to three months' rigorous imprisonment and a fine of Es. 50.
2. The plot is shown in the Record of Eights finally published in 1910 as rakhat, or preserved jungle, of the proprietor. It has also been found that the landlord seven or eight years ago cut from it a large number of trees to repair one of his bhandars, but the measures taken in recent years to preserve the jungle were not effective and through carelessness or otherwise the villagers had been able to cut in the jungle stealthily without the consent of the owner. About a year ago the complainant Paikhas Toppo was appointed forest-guard for this jungle and a proclamation was issued forbidding any more cutting from it. The raiyats announced their intention of cutting and set up a right to do so. In December on a concerted plan they started cutting operations on a large scale and the forest-guard was afraid to interfere. Among those who cut were the petitioners. As the local inspection of the Magistrate disclosed, rather more than a thousand trees had recently been cut all round the sides, so that only the middle portion of the forest was left standing. The defence was that the villagers have a customary right to cut the trees and it was contended that even if the entry in the Record of Eights is correct, the landlord has since 1910 waived whatever rights he possessed. The Courts below have, however, found that the petitioners have no customary or any right to cut and did not cut the trees in the exercise of a bona fide claim of right.
3. In support of the rule Mr. S.K. Mazamdar urges (1) that the petitioners cut the trees in exercise of a bona fide claim of right, (2) that the identification of the petitioners was not sufficient, and (3) that the sentences are excessive.
2. As regards the first contention, on a careful consideration of the submissions of learned Counsel and of the facts and circumstances of the case as disclosed in the record I am of opinion that the plea is unfounded. The presumption of cord rectness attaching to the entry "rakhat" a in the Record of Rights has not been rebutted; on the contrary there was a reserved r jungle in Aine in the hands of the tenure holder long prior to the resumption of the village by the proprietor and so far from the idea of rakhat in Aine being novel the petitioners have been familiar all their lives with the fact that the rakhat in plot No. 379 was the private property of the land lord from which they had no right to cut any trees and that to take without the landlord's consent would be theft. No doubt every aboriginal in the District has a traditional idea that he has a right to all jungle in his village, but an argument founded on this fact would prove too much since a similar idea exists that he is entitled to take the crops of any rice land which has been reclaimed by his ancestors, no matter how long it has been in the legal ownership of others, and indeed that he is entitled to the whole village or even to the "raj" of the District. The fact is that there co-exists now-a-days with these ideas in the mind of every aboriginal the knowledge that the ideas themselves are merely obsolete tribal sentiments and that the present law is otherwise, so that inter alia the rakhat jungle is the private property of the landlord and the ancestral but long-lost bhuinhari or korkor, is now the property of another. Then in the present instance the surreptitious cutting from the rakhat which may well have proceeded since 1910, does not constitute a waiver by the landlord of his right of property or establish an easement to cut. Unlike the tenure-holder the proprietor is an absentee and the raiyats who have destroyed the katawat jungle and were pressed for forest produce, took advantage of his absence though they knew the pilfering to be theft. The jungle would not lose its character of rakhat by reason of such cutting. Even in the katawat jungle the customary right of the raiyat does not extend (except when reclaiming) beyond cutting for domestic and agricultural purposes. The male fides of the cutting under discussion is evident from the fact that it was in wild excess of any reasonable requirements or of any customary right known. In fact it was in pursuance of a concerted movement to establish aright or rather to create evidence of a right to the only remaining jangle in the village in view of the approaching re-visional settlement proceedings that the petitioners and other villagers deliberately defied the law. Accordingly the defence of bona fide claim of right has been rightly negatived. Unquestionably the claim of right advanced by the petitioners was a mere pretence: they acted dishonestly, knowing perfectly well that they had No. right to the trees.
3. The second submission was feebly urged. In my judgment the evidence amply justifies the findings of the trial and Appellate Courts in this regard.
4. Learned Counsel has urged very strongly that the sentences are excessive. But it is manifest that the circumstances of the particular case, no less than the circumstances of the District, where in recent years, owing to wasteful deforestation and consequent high prices of fuel and timber, offences of this class have been comparatively frequent, warrant a deterrent sentence especially where a large body of men has deliberately set out to defy the law and the leaders have been proceeded against. The sentence of imprisonment, though severe, is accordingly not excessive. The fines imposed appear, however, to be out of proportion to the circumstances of the petitioners who moreover are all cousins of the first or second degree. Even if there is a substantial reduction of the fines, the sentences will still be deterrent while the compensation to the owner of the trees will still be adequate. The sentence of fine is accordingly reduced to Rs. 10 in each case. With this modification of sentence the rule is discharged.