J.M.L.Sinha - (1.) THIS revision is directed against the judgment dated 21st January, 1981, passed by III Addl. Sessions Judge, Jaunpur affirming the conviction recorded against the applicants under Section 379 IPC, but reducing the sentence of three months' RI awarded by the trial court to a sentence of fine of Rs. 100/- each.
(2.) THE facts giving rise to this revision can briefly be stated as under : THEre is a plot no. 55, measuring 44 acres, situate in village Naghaiti, police station Sarai Khwaja, District Jaunpur. This plot was recorded as grove in revenue papers. It is alleged that on 20tHi of May, 1977, the applicants cut a mango tree from that grove. Radhey Mohan (PW 1) and Hari Lal (PW 2) asked the applicants to refrain from doing so but they turned a deaf ear. A report was, therefore, lodged in the police-station, after which the cut wood was taken into possession. On these allegations, the applicants were prosecuted under section 379 IPC. THE trial court found the applicants guilty thereunder and sentenced each of them to three months' RI. Aggrieved against it, they filed an appeal in the court of Sessions Judge. THE learned III Addl. Sessions Judge, who heard the appeal, found it devoid of substance and dismissed the same vide his judgment dated 11st January, 1981 with this modification only that the sentence of three months' RI awarded to the applicants was altered to a sentence of Rs. 100/- as fine. Dissatisfied with it, the applicants have filed the present revision. Learned counsel for the applicants pointed out that the fact that the applicants had cut the tree is not controverted. Learned counsel further added that the applicants claimed that the plot in which the tree in question stood belonged to them and, consequently, they had a right to get the tree cut. The learned counsel stressed that the least that could be said was that there was a bonafide dispute regarding the ownership of the tree and, consequently, it was not a fit case in which the applicants should have been found guilty, convicted ;and sentenced under Sec. 379 IPC. There appears some substance in this argument. It is apparent from the material on record that the dispute relates to a tree, which stood in plot no. 55. There is on record an extract of Khatauni of 1359 Fasli. In this extract it is Sukhu who is recorded as tenant. It may be mentioned here that Sukkhu is father of Yasin, who executed the sale-deed of the plot in question in favour of Jhagru and Jag Dutt applicants. There is then a copy of the arbitration award dated 6-2-1962. By this award Jag Dutt and Yasin were held to be the Bhumidhars of the plot in question. The applicants also filed a certified copy of the judgment dated 7th September, 1963 of the court of District Judge, Jaunpur. A perusal of this judgment shows that, after the award had been made the rule of the court, the opposite-party had filed an appeal. In the judgment it is explicitly mentioned that the dispute relates to plot no. 55, measuring 44 acres. Consequently there cannot be an iota of doubt that the judgment relates to the same plot from which the tree in question was cut. By this judgment, the order of the court making the award the rule of the Court was affirmed and the appeal was dismissed.
(3.) THE aforesaid three documents thus showed that the plot in question belonged to Jag Dutt and Yasin. THE fact that Yasin had sold his share, stands proved from the original sale- deed on the record. On the side of the informant there was first Form No. 48, issued on 12th of August, 1960. It should be conceded fiat this document does not carry the name of any of the applicants. Another document filed on behalf of the prosecution was certified copy of the statements of Ram A\adh Pradhan in a case under section 229 of the UP ZA and LR Act. According to this statement, the plot in question belonged to Hari Lal and others and Jag Dutt did not have any concern with it. There is then an order of the Consolidation Officer dated 31st March, 1957, which merely states that recommendation of AGO was approved and action be taken accordingly. The next document is dated 24th June, 1967. This purports to be an order by the ACO saying that in his; opinion Ram Dev, Parauta Upadhyay, Mithal, Khaderu, Rupari, Sadhu, Pheku, Mst. Dhanpatti, Saula and Heera deserved to be recorded as grove-holders. It may be mentioned at this very place that both these documents are anterior in point of time, than the award relied upon by the applicants as also the judgment in appeal arising out of that award. The only other document is Khatauni for the years 383 to 88 Fasli and it is true that this document does not carry the name of any of the applicants.;