Tulsi Mahto and Others vs Emperor

Macpherson, J.—This Rule has been issued to consider the propriety of the conviction and sentence on these eight petitioners who with nine others were convicted by the Sub-Deputy Magistrate of Hajipur of offences under Sections 379 and 143 of the Indian Penal Code. The petitioners were sentenced to fine u/s 379, no separate sentence was passed u/s 143. The other nine accused being boys were released after admonition u/s 562A of the Code of Criminal Procedure. The finding of the trial Court was that the prosecution witnesses had established that "the seventeen accused cut khatha (jhalasi) from within 1100 bighas of attached land in Raghopur Diara near pillars Nos. 16 and 17 on the pretence that it was their decreed land." The District Magistrate dismissed the appeal of the petitioners.

There can be no doubt that an area of 1100 bighas was attached and that the petitioners and the boys with them cut jhalasi within that area. But it has also been established in the evidence that prior to the date of occurrence the petitioners obtained delivery of possession of a portion of the attached area extending to about 345 bighas. The Courts below have assumed that unless the petitioners proved that they cut from within the area of 345 bighas they must be considered to have committed theft. But it is for the prosecution to establish all the ingredients of the offence punishable u/s 379. Neither party has shown where the 345 bighas lay. The Crown has not shown that the petitioners were not cutting within that area of which they had obtained delivery of possession. In the circumstances the prosecution has, prima facie, failed to establish that the petitioners were removing the moveable property of other persons dishonestly out of the possession of the latter--it is quite possible that they were taking their own property without any dishonesty. The learned Government Advocate contends that it was for the petitioners to prove that they had cut from within the area released to them. For the reasons I have already given I am unable to accede to the contention. As the assembly of which they were members is not shown to have been unlawful, the conviction u/s 143 also is unsound. Accordingly no offence has been established against these petitioners and the Rule must be made absolute. Their conviction and sentences are set aside and the fines, if paid, will be refunded. The nine boys who were convicted along with the petitioners are not before this Court but this Court has jurisdiction in the circumstances to set aside their convictions and as on the foregoing findings no offence has been established against them, their conviction and the order in respect of them u/s 562A are set aside.