(1.) RATTA and three others have filed this appeal against the judgment of the Additional Sessions Judge, Sirohi dated 31st August, 1965, convicting all the four appellants for an offence under sec. 448 Indian Penal Code and sentencing each one of them to three months' rigorous imprisonment. By this judgment, RATTA has been further convicted for an offence under sec. 430 Indian Penal Code and sentenced to six months' rigorous imprisonment, but the learned Judge ordered both the sentences in his case to run concurrently.
(2.) THE facts out of which this case arises are as follows: Baggaram had taken on lease the Arath along with a well belonging to the temple known as Khet Laji's temple. This lease was given to complainant Baggaram for two years. Along with this lease a duty was cast on the complainant to perform the seva puja of the temple and to manage the Dharamshala which was attached to the temple for the use of the pilgrims. It appears that Baggaram installed a water pump in the well for irrigation purposes as well as for the supply of water to the villagers. Before the term of the lease expired the villagers, including the four trustees of the temple, leased out by auction this land for the next two years to Lalla appellant. After the expiry of the lease period Baggaram did not hand over the possession of the property to the trustees of the temple and kept in his possession the land, the well, the temple and Dharamshala on the plea that the period of his lease was not for two years but five years. THE villagers thereupon lodged a complaint against complainant Baggaram in the Nyaya Panchayat, Goyali for his high handendness. THE Sarpanch of the Nyaya Panchayat, who is also an appellant before this Court, served Baggaram with a notice that he should hand over the possession of the temple and the Dharamshala as well as the well within two hours of the receipt of the notice, otherwise the trustees will be permitted to take possession thereof. On receipt of the said notice, Baggaram started for Sirohi for legal advice. In his absence it is alleged that the Sarpanch Javerchand along with 10 other persons went on the spot and he asked the trustees to break open the lock of the Dharamshala which is only a room attached to the temple and made Ratta Lohar to disconnect the pipe of the water pump installed by Baggaram in the well from the engine. This was done on the 10th of June, 1963, after two days of the alleged expiry of the term of the lease granted in favour of Baggaram. For two days Bagga Ram did not take any action against the Sarpanch of the Nyaya Panchayat and the persons who assisted him in taking the possession of the temple, the Dharamshala and for disconnecting the pipe from the engine. On the third day a report was lodged by Baggaram at Police Station for taking such action against these persons as is warranted by law. THE Sub Inspector registered a case under sections 143, 448, 149 and 430 Indian Penal Code and started investigation. As a result of this investigation, the Station House Officer submitted a charge sheet against 11 persons including the four appellants in the Court of the Munsiff Magistrate, Sirohi. THEreafter, a transfer application was moved in the court of the Sessions Judge, Pali and the case was transferred to the Munsiff Magistrate, Abu Road but after some time it was re-transferred to the court of the Munsiff Magistrate, Sirohi by the learned Sessions Judge on an application made on behalf of certain co-accused, but a direction was issued by the learned Judge that the case be committed to the court of session for trial. It is in this manner that the case went to the court of the learned Additional Sessions Judge and it was tried by him.
The prosecution produced as many as eight witnesses in this case, out of them two, namely, Vannaram (P. W. 7) and Bheeka (P. W. 5) are the eye witnesses.
The accused denied the charge and pleaded that the Sarpanch of the Nyaya Panchayat himself went to the spot to see that the doors of the temple and of Dharamshala are opened to enable the new lessee to perform the Seva Puja of the deity in the temple. They also pleaded that they did not go to the spot to dispossess the complainant from the possession of the land. Their main object was to see that the doors of the temple were opened so that regular worship may be done to the deity.
The learned trial Judge acquitted seven persons of the charges levelled against them but convicted the accused appellants for the offences set out above and awarded the sentences as mentioned heretofore.
Learned counsel for the appellants urged that from the perusal of the statements of the eye witnesses, no case under sec. 448 I. P. C. is made out against his clients and so also the ingredients of sec. 430 Indian Penal Code are totally missing to warrant the conviction of the accused appellants. The main argument of the learned counsel is that Baggaram was not in exclusive possession in his own right of the Dharamshala for the dispossession of which accused appellants have been convicted, nor was there any intention on the part of the accused appellants to annoy or intimidate Baggaram for taking possession of the temple. It was also urged that it was in the exercise of the bona fide right that the lock of the Dharamshala was opened. Regarding the conviction of Ratta under sec. 430 Indian Penal Code, it was urged that there is nothing on the record to warrant an inference that the damage was caused by the accused appellants to the engine. There is absolutely no evidence on the record that it was on account of the disconnection of the pipe from the engine that the crack on the head of the engine appeared.
The statements of the two eye witnesses Vannaram (P. W. 7) and Bheeka (P. W. 5) were read out to me. Vannaram was in the employment of Baggaram at the relevant time. He is also a relation of Baggaram and therefore he, according to learned counsel for the appellants, was highly interested. For Bheeka, it is submitted that he is a chance witness and even if his deposition is accepted by the Court he does not implicate any of the accused appellants for having entered into the room which is known as Dharamshala. Vannaram (P. W. 7) has stated that at the instance of Sarpanch of Nyaya Panchayat, Jevarchand, the lock of the Dharamshala was got opened by means of a wire and thereafter Lalla was permitted to place his lock. According to learned counsel this transaction of substitution of one lock by another does not constitute a trespass, much less criminal trespass. According to learned counsel, it is necessary in order to complete an offence under sec. 441 Indian Penal Code that the entry must be made in the property. Here the prosecution itself says that nobody entered the Dharamshala after the lock of Baggaram was got opened by Ratta. Bheeka (P. W. 5) no doubt says that after the lock of Baggaram was opened some villagers entered the Dharamshala but he does not name those villagers who effected their entry in the Dharamshala. In view of this evidence led by the prosecution itself, it is difficult for me to accept the contention of the learned Deputy Government Advocate that as soon as the lock was opened the act of opening the lock constitutes the trespass.
Even if we place the case of the prosecution higher than what has been established by the prosecution evidence that somebody entered the Dharamshala after the lock was got opened by Ratta, I find that the other ingredients of an offence under sec. 448 Indian Penal Code are missing. It is evident from the prosecution evidence itself that the term of the lease granted by the trustees in favour of Baggaram had expired when the villagers including the trustees went to take possession of the temple. It is not contended by the prosecution that any attempt was made on behalf of the villagers to take possession of the land which was really lease-ed out to Baggaram. From the entire circumstances brought on the record, I do not find an escape from an inference that the object of the villagers was to take possession of the temple in order to secure the regular worship of the deity, and it was in the exercise of this bona fide claim of right that the villagers went with the Sarpanch of the Nyaya Panchayat and they did nothing more than to take possession of the temple and along with it of the Dharamshala which was meant for the use of the pilgrims. Where an entry is made under a bona fide claim of right then it is the duty of the Court to find out whether the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the person in possession or simply it was done with an honest belief to exercise the bona fide claim of right. It is not sufficient in order to constitute an offence under sec. 448 Indian Penal Code that the accused had the knowledge that by his action annoyance is likely to be caused. If the accused sets up a bona fide claim, goes under the instructions of the Sarpanch of the Nyaya Panchayat without any preparation for meeting any challenge from the opposite side, it will be inferred that the dominant intention of the accused person was not to commit any offence or to insult, intimidate or annoy a person in possession but the circumstances do warrant an inference that he had gone there without any such intention. I am fortified in this view of mine by the authority of this Court in Jawanmal vs. Mst. Bhanwari (l) and also of the Bombay High Court in Emperor vs. Mrs. S. D. Cunha (2 ).
In this view of the matter, I find it difficult to uphold the conviction of the present appellants under sec. 448 Indian Penal Code.
Coming to the case of Ratta, I find that the prosecution has been able to establish only this much that he disconnected the pipe from the engine on the relevant date. While doing so, it is possible that he might have used chisel and hammer but it is not established from any evidence on the record that the crack had occurred in the head of the engine on account of the process employed by Ratta for disconnecting the pipe from the engine. There was no wilful intention of Ratta to cause wrongful loss or damage to the property of Baggararn. In these circumstances, the conviction of Ratta under sec. 430 Indian Penal Code cannot be sustained.
The appeal of the appellants is allowed, the judgment of the trial court convicting them is set aside and they are acquitted of the charge under sec. 448 Indian Penal Code. Ratta is also acquitted of an offence under sec. 430 Indian Penal Code. Accused appellants are on bail and they need not surrender to it. .