Shib Lal Das vs Emperor

Dhavle, J.—Of these six petitioners, Shib Lal Das and Kak Chand Das are related to each other as uncle and nephew, and hold the daristimrari of mouza Saura, and the other four are their servants. These latter have been convicted u/s 379, and fined Rs. 10 each and the first two have been convicted under that section read with Section 114 and sentenced to fines of Rs. 15 each. This was in respect of the cutting down of a mango tree in a bamboo clump in the mouza. The prosecution case was that it was the istimrardar and not the daristimrardar that was entitled to the timber of the trees standing on the plot. This was supported, among other things, by an entry in the Record of Rights. The only defence that it is now material to state was that the petitioners had acted in the exercise of a bona fide claim of right, having cut down trees on two previous occasions without permission from istimrardars and having on the present occasion cut the tree down openly on two days.

It has been urged on behalf of the petitioners that there should have been no conviction of theft in the present case because of their bona fide claim to the timber. I asked learned Counsel on what materials this claim was grounded, for he does not dispute the fact that the Record of Rights is entirely in favour of the istimrardar and against the daristimrardars. The answer that was given was that the trees had been openly cut down by the daristimrardars sometime ago and that on the present occasion the petitioners did not act like thieves at night, but took the timber openly. As to the former of these circumstances, the lower Courts were not satisfied that timber had been previously appropriated by daristimrardars as of right.

The learned District Magistrate who heard the appeal says that he was not convinced from the evidence of the two defence witnesses who were called on this point that the landlord knew anything about the cutting of the trees even if it were a fact or, as he had put it earlier, that it did not follow from the action of the petitioners that they had out the tree within his knowledge. The second consideration referred to by learned Counsel is obviously insufficient to found a bona fide claim of right upon. Thefts are not always committed secretly, and the instances of the pick-pocket, the shop-lifter, the house-breaker, etc., given by Woodroffe, J., in the well-known case of Hari Bhuimali v. Emperor (1905) 9 CWN 974, were, as pointed out by Fazl Ali, J., in Abdul v. Emperor 1929 Pat 86, but extreme cases in which no claim of title could be possibly involved.

It was argued in the Court of appeal that the petitioners were not guilty because they believed they had a right to cut down trees and appropriate the timber, and that Court says that there is nothing in the record to show that the belief existed in their mind when they out down the tree. No claim seems to have been asserted on the previous occasions, and the claim is, on the submissions before me, entirely unfounded.

It is impossible to accept the contention that a bona fide claim may be inferred from the fact that the petitioners acted openly on the present occasion; six men could afford to act openly against but one servant of the istimrardar who was on the spot. This is not the kind of case in which a wholly unfounded claim could be said to be honestly advanced in good faith. I therefore see no reason to differ from the appellate Court on this point.

It has also been urged that as four of the petitioners were only servants, it was for the prosecution to offer evidence from which the Court could infer that they had the knowledge which would be necessary to convert their act of removing the timber into theft. It is not said that these four servants are new servants, and as was observed by Woodroffe, J., in Hari Bhuimali v. Emperor 9 CWN 974 which was referred to in the case of Radha Madhab v. Emperor (1911) 9 IC 46, relied on by learned Counsel, "in most instances no doubt servants have full knowledge of the facts."

In the present case the petitioners were all sailing in the same boat and put in one written statement which however they have failed to include in learned Counsel''s brief. The trial Court also referred to the question of guilty knowledge of these particular men, and relied on the fact that the complainant had pointed out to them that they could not cut the tree without the permission of the istimrardar and that notwithstanding this they went on cutting the tree. It has been urged that was not sufficient to establish their guilty knowledge because they were acting on their employer''s orders.

To follow an employer''s order in such circumstances however is to take the risk of being visited with the consequences. It does not appear to have been stated by these men that after the protest of the complainant they had any reason to treat their employers'' orders as lawful; and their continuing to do the work could only be animated by the intent of causing gain to their employers however wrongly. Enough, I think has been said in the judgment of the trial Court to show that it cannot be rightly held that in cutting the tree these men had no guilty knowledge. The application fails and is dismissed.