MISRA, J. - (1.) THIS is a revision against an order of acquittal passed by the learned Sessions Judge of Rae Bareli in appeal.
(2.) THE case arose on a complaint filed by Smt. Ram Kali. The facts are not in dispute now. Ram Kali is sister's daughter of one Ram Asrey who died issueless on or about 19th October 1949. The complainant was living with him at the time and she remained in possession of his house and effects after his death. On 29th October 1949, which was the Daswan day, Ram Kali was engaged in the Shuddhi ceremonies when she heard an alarm raised by her mother, Mst. Phuljari. According to her, when she went in she found that Gaya Prasad accompanied by a number of persons had entered the house and was removing boxes and utensils etc., that he persisted in taking them away to his house and that the occurrence took place in broad day light between 12 noon and 2 p. m. on 29th October 1949. The prosecution story has been found to be true by the Courts below and its correctness is not denied now. On behalf of Gaya Prasad it was urged in the lower appellate Court that he was Ram Asrey's nephew, that as such he was the rightful successor of the deceased and that therefore, the house and the properties removed by him being his own, he had committed no offence.
(3.) FROM the fact that Ram Kali continued to occupy the house after the death of Ram Astey and the further fact that she exercised dominion over the articles inside the house alleging herself to be the nearest heir of Ram Asrey the learned Judicial Magistrate in whose Court the trial took place held that the action of Gaya Prasad and his companions in removing the articles amounted to theft notwithstanding the possible existence of a bona fide dispute regarding title. The following passage in his judgment would indicate the view which he took : "A bona fide dispute does not give him the right to take the law in his own hands. Once one of the rivals enters into possession, his opponent must seek the aid of law and establish his right. This principle of law applies to this case on all fours......Because Ram Kali was asserting her title to the movables in the house the accused felt the necessity of removing them by force. There is no evidence that Gaya Prasad ever exercised control over the househod of Kara Asrey. . . .... Gaya Prasad and his companions took the law in their own hands and forcibly dispossessed Ram Kali of of the articles over which she was exercising possession. The accused in doing so committed lurking house The learned Judicial Magistrate, therefore, con -vioted Gaya Prasad and and eleven others of the offence under Section 454, Penal Code and acquitted three persons, giving to them the benefit of doubt. Gaya Prasad, Sant Ram and Ram Lal being the principal culprits were sentenced to pay a fine of Rs. 250 each, in default to undergo three months rigorous imprisonement. Ghandrabhan, Kunj Behari, Sita Ram, Ishwar Din, Mahabir, Hanoman and sheo Bahadur were sentenced to pay a fine of Rs. 60 each or in default to undergo one month's rigorous imprisonment. Deota and Ram Lal being servants, were let off with a warning. The articles which were removed from the house of Ram Kali and which were recovered from the custody of the accused by the police and were duly identified were ordered to be made over to the complainant. The learned Sessions Judge took a somewhat curious view of the law. He held that since the complainant could not be an heir of Ram Asrey under the Hindu law and since Gaya Prasad had a bona fide belief that he was his heir, the act of entering the house and removing the goods could not be deemed to constitute an offence of house trespass, the following portion of the judgment of the Sessions Judge would indicate his line of thought. "Mst. Ram Kali could not have been a claimant of the house and the moveables of Ram Asrey when she was not his legal heir and there is no proof that she had either a will in her favour by Ram Asrey or any other deed of transfer for his property and so if Gaya Prasad claiming to be the nephew of Ram Asrey and as such a bona fide claimant to the said house and the moveables, either alone or with the help of other accused, entered the house of Ram Asrey and removed the moveables therefrom, the conduct of Gaya Prasad or of any other accused who might have helped him in doing so cannot be criminal and much less it can be an offence under Section 454, Penal Code. It has not been shown that any of the movables removed from the house of Ram Asrey really belonged to Mst. Ram Kali as her personal property, apart from its being an asset of Ram Agrey. The evidence on the record shows that the moveables which are said to have been removed from the house of Ram Agrey were kept in boxes and even if any of those articles would have belonged to Mt. Ram Kali personally, Gaya Pradad could not have known that it would be so and when he removed the boxes containing those articles naturally he did so with the bona fide belief that all the artiales contained in the boxes were Ram Asrey'a and as his nephew, which he alleged himself to be, he was Ram Asrey'a legal heir and entitled to have them and to protect them from being taken by anybody else entering the house of Ram Asrey ..... So in my opinion the conviction and sentence of the appellants are not justified and they should be quashed. The appellants deserve acquittal of the charge under Section 454, Penal Code." ;