KARAMSANI MATARI Vs. NATHA MATARAI

JUDGEMENT

(1.) THE accused were convicted under Sections 147 and 379 I. P. C. and each of them was sentenced to pay a fine of Rs. 15/- in default to 5 days R. I. Under section 147 and to Rs. 30/- in default to 10 days R. I. under Section 379, by the magistrate (Judicial) First Class, Padampur.

(2.) COMPLAINANT Natha Maitri and the accused are agnates. Mahangu is the brother of Lochan. Natha is the grandson of Mahangu. Accused 3 to 5 are the sons of lochan. Accused-1 is the son of accused-4. Accused-12 is the grandson of Lochan through another son Shyamsundar. Accused 6 and 7 are the field servants of the other accused. Prosecution case was that the disputed land fell to the share of the complainant in a family partition in 1947. Since then the complainant is in possession. He grew crops of the disputed land in 1962. The accused in a body unlawfully cut away the crop on 23-10-63. The defence as it appears from the statement under Section 342 Cr. P. C. , is one of denial. To take a sample statement, the question and answer may be noted; question--It appears from the prosecution evidence that yon with other accused persons illegally reaped away the crop on 23-10-62 from Pipalduli in Pipalmal lands which was in the possession of Natha Matari in which he had grown paddy. What have you to say? answer--It is false. I have not reaped away the crop. Accused 6 and 7 denied coming to the spot. No witnesses had been examined by the defence. It is thus manifest that the defence was not that the accused were in possession of the land, grew paddy and reaped away the same. The learned Magistrate, after full discussion of the evidence, came to the conclusion that the complainant was in possession of the land, had grown crop and that accused persons removed the said crop. Cr. Rev. No. 9 (8)/3 of 64/65 was filed by the accused challenging the order of conviction and sentences. The learned A. D. M. (J) was of opinion that the conviction should be set aside in view of an order under Section 145 Cr. P. C. passed in favour of the accused (Ex. A) in respect of the very land. He has accordingly made this reference for quashing the conviction and sentence.

(3.) THE main conviction is under Section 379 I. P. C. The requirement of law in a case of this nature has been fully discussed in (1965) 31 Cut LT 601, Binayak swain v. Ramesh Chandra Panigrahi. It was held therein that if the accused removed the property honestly believing it to be his, he could not be convicted of theft even though his claim might be ill-founded in law and in fact. The claim of the accused should not be mere colourable pretence. In each case the Court shall come to a finding on the materials of that case, whether the claim advanced by the accused is an honest one or a mere pretence. Where the alleged theft consisted in the removal of crop grown on the land, the most vital question to be investigated into is as to which of the parties had grown the crop. In majority of cases this test would furnish the answer as to whether the claim of the accused was bona fide or a mere pretence though it docs not lay down universal rule. On the finding of the learned Magistrate that the complainant grew paddy and that the accused reaped away the same, on the basis of the aforesaid authority the conviction is well founded.