Shrimati Agomoni Choudhury and Others vs Shrimati Sailobala Barmani

B.L. Hansaria, J.—The Petitioners 11 (eleven) in number have been found guilty u/s 427, Indian Penal Code and each of them was sentenced to pay a fine of Rs. 20/-. An appeal against this order passed by the learned Judicial Magistrate was preferred before the learned Sessions Judge, Goalpara, Dhubri, who has dismissed the appeal mainly by relying on the appreciation of the evidence nude by the learned Magistrate, Though a plea of ''claim of right'' was advanced before the learned Sessions Judge, the same has been turned down.

Shri Das for the Petitioners has mainly addressed me on the aforesaid claim of right. According to him, the Petitioners have succeeded in establishing the same inasmuch as the land in question had been purchased by one Ratneswar who is a brother of positioned Khangendra from the husband of the complainant. This purchase was sometime in 1974 and the occurrence had taken place on 6.8.81 which relates to causing damage to the paddy transplanted on 5.8.81. According to the Petitioners they were possessing the land since 1974 when it was purchased and it was the complainant who was trying to disturb their possession. From the records it appears that before the institution of the present prosecution, the complainant had prayed for drawing a proceeding u/s 144/107, Code of Criminal Procedure. Shri Das has referred me to the report submitted by the police in that ease which states that the Petitioners were positing the land after the purchase. This Is also the evidence of P.W. 2, D.W. 1 was examined to prove the sale deed In question marked Ext. Ka.

The learned Sessions Judge, In fact, the learned Magistrate did not place reliance on Ext. Ka because it did not contain full description of the four (sic)ries and there was no evidence as to who had obtained thumb impressions of the vendor in the sale deed. As to D.W. 2 who deposed about possession of the land, it was stated that he had no direct knowledge as he used to be informed about the cultivation by Khagendra through letters which were not produced. As against this, the evidence of P.Ws. 2, 3, 4 and 5 was accepted as they were boundary persons and were even related to the accused, as to the complainant .

As the occurrence as such has not been disputed before this Court by Shri Das, the point which need determination is whether it could be said beyond reasonable doubt that the accused persons had necessary means read to cause wrong(sic) loss to the complainant where they uprooted the transplanted paddy. It is in this context that the question of claim of right assumes importance. Shri Das has first referred in this connection to Pappy v. Damodaran AIR 1968 Ker 126 which has said that the expression "claim of right" does not refer to actual legal right, but it means belief in legal right It has been further observed in this judgment that the only thing necessary in this context is that the mistake must be one which needs the accused to claim that he has a right to act at he does. By referring to Manikchand Birdhichand Sharma Vs. The State of Maharashtra and Another, it is contended by the leaned Counsel that what Is to be looked into in this connection ii that whether the assertion of the accused is bonafide or not. Finally, reliance is placed on Ram Ekbal Rai and Others Vs. Jaldhari Pandey, which has also emphasised the requirement of bonafide belief.

Shri Chouduri for the opposite party submits that to claim the right as advanced by Shri Das, there must be some satisfactory evidence on record regarding possession of the land by the Petitioner after the purchase or for that matter at any point of time. He submits that the same is locking in the present case. Before examining is, let it first be seen whether the prosecution has itself established about the possession of the land with the complainant. Inference to the evidence led by P.Ws. shows that apart from P.W. 1, the complainant, nobody had specifically stated about the possession of the land being with her especially after the land had been purportedly sold by her husband to Ratreswar. No doubt, P.Ws. 2, 3, and 4 have stated about the transplantation of paddy by the complainant on 5.8.81, that fact by itself cannot establish that the complainant was possessing the land from before. As it was the burden of the prosecution to establish this it cannot be held that it had succeeded in the same conclusively. Coming to the case of the Petitioner now, though no person in the boundary supported their claim regarding possession (sic) the land the evidence of D.W. 2. cannot be thrown out all together when ii has received some support from Ext. Ka and Ext. Kha, the latter being a certificate from the Sub-Deputy Collector stating that the name of Ratneswar had been recorded in the Jamhbandi as a joint Khatiandar in respect of IB-191- of land which is the subject matter of Ext. Ka.

The test laid down in Pappu has been called from various English decisions. Reference may be made to two of these opinions. In Regina v. Boden (1844 ) 174 ER 863, the accused said to the complainant "Pay me the eleven sovereigns you one me". The complainant refused wherefrom the accused knocked him down. In fact the money was not owed by the complainant but by his father and it was owed not to the accused but to a friend of the accused. Even so the conviction for assaulting with intent to rob was not awarded, as the Court was satisfied about belief in legal right, which negative means read similarly, in Rex. v. Bernhard 1938 2 KB 264, the accused who was demanding money with menaces with intent to steal and to expose, complainant''s immoral relationship with her unless he fulfilled the promise made during the subsistence of relationship to pay certain sums of money, was acquitted as she honestly believed that the money she claimed was owning to her, no matter whether there was any basis for the claim or not. Let me hi(sic)o add that a mere pretence would not do this regard, is the claim has to be a bona-fide one, us stated in Ram E(sic)

So far as the case at fund is concerned I am satisfied that the Petitioners must how caused damage to the paddy, the next day of its transplantation, in assertion of their bona-fide claim of right over the land on the strength of purchase of the same by Ratneswar. For giving tills benefit, it is not material whether the story of purchase. Is legally tenable or not, a bonafide belief in the same would do, And as to this, I have no reasonable doubt. Accordingly, while giving benefit of the same, the conviction is set aside and the petition is allowed.