Bhan Prasad Chaudhury and Another vs Barahamdeo Chaudhury

Sen, J.—The petitioners in this case have been convicted and sentenced under Sections 323 and 379, I.P.C. The prosecution was that they carried away bundles of paddy from the plot of land No. 1049 which belonged to and was in the possession of the complainants. The complainants are lessees of one Ramautar Ghaudhary, who, according to the case of the prosecution, purchased six plots of land including the plot in question and obtained dakhal dahani in respect thereof. Subsequently, the petitioners purchased two out of the six plots at an execution sale. There were certain proceedings under Sections 144 and 145, Criminal P.C., between the petitioners on the one hand and the complainants and Ramautar Chaudhury on the other. On the 7th September 1926, the order passed by the Magistrate in Section 145 proceedings came up in revision before this Court; and this Court, reversing the order of the Magistrate, found the petitioners in possession of two out of the six piots.

The defence of the petitioners is that they took away be has of paddy from plot No. 1049, under a bona fide claim of right and, apparently, they relied upon the right which this Court had declared in their favour on the 7th September 1926. Whether the right which that allege would stand the test in a Court of civil law is a matter which does not arise at all in this case; but what is essential to consider is whether they had established their plea as to their bona fide claim of right.

Now it appears on reference to the judgment of the learned Magistrate that it was established in the course of the trial that the High Court had given two plots out of the six to the petitioners. The question was whether those two plots included plot No. 1049, the plot in dispute. The learned Magistrate observes:

There is no legal evidence in the record as to which these plots ate.

That being so, for aught one knows plot No. 1049 might be one of those plots. The learned Magistrate, however, proceeds and says:

The onus lay on the accused to prove that the paddy alleged to have been taken away was from the plots of which accused has got book possession.

There being no evidence on the record to prove this, the learned Magistrate holds that the probabilities are that plot No. 1049 was not one of the plots which was found to be in the possession of the accused.

Learned Counsel appearing for the petitioners contends that there is no such onus as that pointed out in the judgment on the accused. What took place was that the accused did not put in a written statement; but throughout the cross-examination they indicated their defence, namely, that they had acted under bona fide claim of right, as they had in their possession the disputed plot. That being the clear line of defence taken by the accused throughout, it was incumbent upon the prosecution to show that plot No. 1049 was not one of the two plots which was found to be in the possession of the accused by the Sigh Court and that thus the guilt had bean brought home to the accused. No such thing appears to have been done arid in the uncertainty resulting from the absence of any evidence a to which two plots were in possession o� the accused, I do not think the conviction can be sustained.

The application is allowed and the order of conviction and sentence set aside.