Gajadhar Singh and others vs The King-Emperor

Ross, J.—The petitioners have been sentenced to six months'' rigorous imprisonment and a fine of Rs. 30 each on conviction under S. 147 of the Indian Penal Code and they have also been bound down to keep the peace. The charge was that they were members of an unlawful assembly the common object of which was to enforce their right or supposed right to the standing crops of Gulam Kutubuddin. It is evident that the true question in the case is the question of possession of the crops. It was admitted by the accused Gajadhar Singh as soon as the Police appeared in the village that he had out the crops and he produced the bundles. He asserted that the land was in his possession. The case for the prosecution is that the land was formerly the holding of Gajadhar Singh but was sold by the malik Kutubuddin for arrears of his share of the rent and was purchased by him in execution and that it has been in his possession since then. The Magistrate observed in his judgment that he did not attach much importance to the fact of actual possession and actual sowing. I am at a loss to understand this observation as the question of possession is the essential question for decision in the case. The learned Sessions Judge has considered the documents and has come to the conclusion that they are in favour of the complainant''s case. He has also referred to the defence evidence in some detail and has briefly remarked that the documentary evidence of the prosecution is supported by the oral evidence. The principal contention of the learned Counsel for the petitioners, and the only point which I think it necessary to discuss, is that the true effect of the documents is in favour of the possession of the accused. The learned Sessions Judge has relied on the delivery of possession after the Civil Court sale and on an order under S. 144 of the Criminal Procedure and on the judgment in a case in connection with a claim made by a co-sharer malik Musst. Kaniz Khatun against Gajadhar Singh. Now the first two of these documents are of the year 1913 and the third is of the year 1916. Thereafter there come the two judgments of the Criminal Court which are relied upon by the defence. Ex. C is a judgment dated the 20th March 1917 in a case brought by Raghunandan, the Barahil of Kutubuddin, one of the witnesses in the present case, against Mukhram Singh and two others. The charge was under Ss. 147 and 379 and the Magistrate said that the question to be decided was whether the crop was grown by the complainant and whether the occurrence really took place as alleged by him. He examined the evidence of the witnesses in detail and relying on the boundary witnesses called by the accused held that the crop was grown by the accused. This is a strong piece of evidence in favour of the accused and in my opinion the considered judgment of the Criminal Court on the question of possession cannot simply be ignored. The other judgment is of the following year and was delivered in a case between Bhim Dusadh, the gorait of Kutubuddin, one of the witnesses in the present case and Gajadhar Singh. Although the case was a case under S. 323 and was treated as such, it is clear that it was about the taking of crops of this land and that the Magistrate disbelieved the prosecution. In my opinion therefore the effect of the documentary evidence, in view of the recent decision of the Criminal Court, is in favour of the possession of the accused. I have therefore thought it necessary to examine the oral evidence to see whether this establishes the prosecution case more effectually than the documents. The prosecution witness No. 1 speaks to possession but his evidence seems to be contradicted by the criminal judgment above referred to, as he speaks of possession in the year 1324 the year in which the Criminal Court decided against the complainant''s possession. The next witness is Raghunandan Barahil; P.W. 3 is the doctor; P.W. 4 is the constable who was deputed to the land and consequently knows nothing of possession. P.W. 5 is Bhim Dusadh, Gorait, already referred to, P.W. 6 is a chance witness who is not a witness on the point of possession. P.W. 7 speaks to possession and admits that he was one of the witnesses in the case of Baghunandan against Mukram Singh. The next witness is the Sub-Inspector who also was not a competent witness on the point of possession. P.W. 11 is the Civil Court peon who delivered possession and P.W. 12 was a patwari of the village up to 1320 and therefore not competent to speak to recent possession. On the side of the defence the first witness is a patwari who has land on the boundary of the disputed land. The second witness is also a boundary witness. The third witness has land in the neighbourhood and the 5th witness proves receipts granted to Gajadhar Singh by the other maliks. The oral evidence given for the defence seems to be more credible and substantial than that given by the prosecution. Both on the documents and on the oral evidence therefore, in my opinion, the prosecution has failed to prove possession of Kutubuddin. But, on the other band, the conclusion to be drawn is that the accused who evidently are countenanced by the other maliks have continued to hold possession of the land. The result is that the prosecution must fail and the convictions and sentences must be set aside. The petitioners will be acquitted. The fines if paid will be refunded. The bonds to keep the peace will also be discharged.