Patna High Court
Prayag Dusadh And Ors. vs Ramjatan Pandey on 24 April, 1950
Equivalent citations: AIR1950PAT508, AIR 1950 PATNA 508
ORDER Jamuar, J.
1. The petitioners have been convicted under Sections 379 and 426, Penal Code, and sentenced to pay a fine of Rs. 50 each under the former section with one month's rigorous imprisonment each in default and to pay a fine of Rs. 20 each under the latter section with two weeks' rigorous imprisonment each in default.
2. The charges framed against the petitioners were in respect of an occurrence which took place on the morning of 11th December 1948, when they, along with others, are alleged to have cut away and removed some paddy crops from the land of Sheo Singh, the landlord. The complaint in the case was filed on the next day by Ramjatan Pandey, an employee of the landlord. The landlord's case was that the petitioners who were the original tenants had abandoned the land and had left off the cultivation several years ago with the result that he (the landlord) had amalgamated this land with his own bakasht land and came into cultivating possession of the same.
3. The defence of the petitioners was that there was no such occurrence as alleged by the complainant on 11th December 1948. They, however, claimed to have been in cultivating possession of the land in question and also to have cut away and removed the paddy cops some days earlier than 11th December 1948. This was in answer to the charge under Section 379, Penal Code. The charge under Section 426, Penal Code was in respect of an allegation that the petitioners had removed some earth from the dhanihar (dhanhzr ?) and the rabi fields and had put up an ari as a ridge indicating a diviling line between these fields. The prosecution allegation was that this ari had been put up by the petitioners in order to shew division as against the prosecution case that the land had been amalgamated.
4. The trial Magistrate came to a finding on the evidence that the landlord was in cultivating possession of the land in question and had grown the paddy which had been cat away and removed by the petitioners as alleged. In also found that the petitioners had dug the earth and bad put up a demarcating ridge on the amalgamated land in order to anew their own possession. On these findings the learned Magistrate convicted the petitioners of the charges framed against them. On appeal, the learned Additional District Magistrate who heard the appeal upheld the findings of the trial Court and dismissed the appeal.
5. In revision in this Court it was argued, is the first place, that the petitioners, in the circumstances of this case, were protected by a bona fide, claim of right, and, as their claim was an honest one, they cannot be found to have committed any criminal offence. In the first place, the defence does not appear to have taken up such a position either in the trial Court or in the appellate Court; nor was any such ground taken is the petition filed in this Court in its revisional jurisdiction. The question, however, has been argued at length, and in these circumstances it has to be considered. The defence of the petitioners is mainly founded upon certain entries in the record-of-rights which were prepared in the year 1916. The paddy crops are alleged to have been removed from plot No. 111 which forma part of khata No. 45, and khata No. 45 finds recorded in the name of Swayambar Dusadh who was the father of Prayag Dusadh, petitioner 1. The lands are bhaoli lands. Petitioner 2 is the son of petitioner 1. It is also said that petitioner 14 is a purchaser of half of khata No. 45 from petitioner 1. Petitioner 13 is the son of petitioner 14. These petitioners, therefore, claimed to be in cultivating possession of plot No. III from where the paddy crops are alleged to have been removed. It appears that the prosecution led evidence in support of its claim that the landlord his been in cultivating possession of these lands, as the petitioners who are recorded in the record-of-rights had left the cultivation. The question of possession was, therefore, of importance on the date of the occurrence. Both the Courts below have come to a definise finding that possession of these lands was with the complainant's malik, namely, the landlord. This is a question of fact which cannot be interfered with by this Court in its revisional jurisdiction. It was, however, contended that this finding was arrived at by the lower appellate Court on an improper consideration of the evidence in the case. So far as the defence is concerned, no evidence was given on behalf of the petitioners regarding their being in possession. As I have already stated, the prosecution led evidence in support of its claim, and the Court of appeal below, on a consideration of that evidence, came to the finding that possession was with the landlord. Mere mis-appreciation of evidence, even if that be so, would not be sufficient to disturb this finding. (After discussing further evidence his Lordship held that the conviction of the petitioners either under Section 379 or Section 426, Penal Code, could not be interfered with and proceeded;) 6-8. Another point argued in support of this petition was that the examination of the petitioners in the trial Court under Section 342, Criminal P. C., was not in accordance with law. That section provides for the examination of an accused person at the close of the prosecution case, and it was suggested that in this particular instance the accused persons were examined after the close of the defence evidence which, of course, is long after the close of the prosecution evidence. This argument was sought to be supported from the order-sheet dated 28th November 1949. The order-sheet of that date shows what took place in the trial Court on that date. It begins with a statement that the defence witnesses were examined, cross examined and discharged; that certain documents were marked on behalf of the accused; that a date wag fixed for argument and then it states that the statement of the accused was recorded. The mention that the statement of the accused was recorded is at the end of the order sheet of that date and, hence the argument was that this would show that these statements were recorded after all the other things had been done. I do not think that I can come to this conclusion. The order-sheet does not indicate that the events entered therein had taken place chronologically. It merely states what had taken place on that date. This conclusion finds support from the question which was put to the accused at the time of their examination under Section 342, Criminal P. C. The question was to the effect that they had heard the evidence of the complainant and his witnesses, and they were asked what they had to say. This would rather shew that the examination was made after the close of the prosecution evidence, as is provided for under Section 343, Criminal P. C. I do not think, therefore, that it can possibly be said that the provisions of this section have not been complled with. In this connection it was also contended that the accused were prejudiced by the omission made by the trial Magistrate in not putting farther questions to them regarding the sowing of the crops, or possession of the lands, and so forth. I have just stated what question was put to each of the accused and each answered that he would file a written statement. After this no further question was asked. Since the accused did not desire to answer even one question which was put to them and since they undertook to file written statements in support of their defence. I do not think any prejudice has been caused in this case by the omission of the Magistrate to put further questions.
9. Lastly, it was argued that the prosecution sought to prove a confession made by one of the accused, namely, Prayag Dusadh, and as that confession had not been recorded under Section 164, Criminal P. C., the confession was inadmissible in evidence. In my opinion no confession has been made by any of the petitioners at all in this case. At the trial stage one Babu Ambika Prasad Singh, an Honorary Magistrate, had been deputed to make some enquiry, and he stated in his evidence that Prayag Dusadh had admitted before him regarding the cutting away of the crore from plot No. 1 in and that he had also further admitted the digging of the land in order to separate it from the landlord's land. The argument was that this amounted to a confession of guilt which should have been recorded under Section 164, Criminal P. C. Now, the charge was regarding the removal of the paddy crops and putting up of an ari on 11th December 1948. In my opinion, neither Prayag Dusadh nor any of the petitioners admitted this charge or confessed to have committed any offence on this date, The defence was that Prayag Dusadh had put up an ari some days prior to nth December 1948 in pursuance of their claim of being in cultivating possession of the lands. In my opinion, therefore, the evidence of the Honorary Magistrate who went to hold the enquiry does not shew that Prayad (Prayag ?) Dusadh had made any confession to him in respect of the offence with which be had been charged. In these circumstances Section 164, Criminal P. C., can have no application at all.
10. The result of my consideration is that there is no ground for interference in this application. The application must, therefore, be dismissed.