Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura, under Section 438 Cr. P. C. recommending that the order of conviction and sentence of the petitioners passed by the 1st Class Magistrate, Sadar, under Section 379 I. P. C. in Criminal Case No. 200 of 1961 should be set aside.
2. The facts according to the prosecution are that, on 2.4.61 corresponding to 19th Chaitra, 1367 B. S., the accused petitioners cut down and removed some jack-fruits, kurcha and sonal plants standing on an ail in possession of the complainant P. W. 1 Nil Kanta Chakraborty in spite of protest by his mother P. W. 2 Bishakha Sundari Chakraborty. The prosecution examined 4 witnesses. On the charge under Section 379 I. P. C, having been framed by the learned Magistrate both the accused pleaded not guilty.
3. The defence of the accused petitioners was that the ail in question was owned and possessed by the accused, Jagadish Chandra Dey and that they have been falsely implicated by the complainant acting in collusion with P. W. 3 Kshltish Chandra Paul. In convicting and sentencing the accused petitioners the learned Magistrate observed as follows:
The prosecution with the evidence adduced proves the case. The prosecution proves that the accused persons cut down the plants, which were under the possession of the prosecution and these were removed by the accused persons in spite of the protest from the P. W. 2. The accused persons cannot be said to have had any right to remove the same from the possession of the prosecution. The prosecution had every right for these plants. The accused persons by removing the same caused a wrongful loss to the prosecution. The accused persons can be reasonably said as to have had the dishonest intention in removing the same. Intention is the gist of an offence punishable under Section 379 I. P. C. and this is also proved by the prosecution. The accused are, therefore, liable for the removal of the plants standing on the ail of the complainant. The charge under Section 379 I. P. C. against the accused persons stands proved. The accused persons are therefore found guilty under Section 379 I. P. C. without the least reasonable doubt and convicted under the same.
4. Being aggrieved by this judgment the petitioners preferred a revision petition to the Court of learned Sessions Judge and he has made this reference to this Court for setting aside the order of learned Magistrate.
5. The learned Counsel appearing on behalf of the petitioners while supporting the reference averred that in order to convict the accused petitioners under Section 379 I. P. C. the most essential thing for consideration of the learned Magistrate was whether the prosecution had been able to prove that the complainant was in possession of the land, from which the trees alleged to have been cut away by the accused petitioners.
6. In this case the prosecution examined 4 witnesses and out of them P. W. 4 Nagendra Chandra Dey was not available for cross-examination after charge and hence his evidence was inadmissible in evidence. Out of the other 3 witnesses, P. W. 2 Bishakha Sundari Chakraborty was the only eyewitness to the occurrence but she failed to give the boundary of the disputed land. The evidence of the other witnesses was not at all worthy of reliance but even then the learned Magistrate convicted the petitioners and hence the learned Sessions Judge was justified in recommending the case for acquitting them.
7. The learned Counsel for the petitioners further urged that from the defence evidence it is clear that they removed jack-fruits, kurcha and sonal plants from their own land and not from the land of the complainant. The complainant alleged to have taken 2 K. of land but she has admitted in her statement that her 2 K. of land has increased to 13 K. By this the Court should infer that she is trying to claim the land in possession of the opposite party. It was also pointed out that the prosecution failed to prove that the accused persons removed the jack-fruits etc. with dishonest intention,
8. The learned Counsel for the opposite party in order to refute the arguments raised by the learned Counsel for the petitioners contended that by the evidence of P. W. 2 it is clear that the accused persons took away jack-fruits etc. from her ail, therefore, the learned Magistrate was justified in convicting the petitioners.
9. Having given the matter my most careful and earnest consideration I find no force in the arguments raised by the opposite party. To prove an offence of theft it is not enough if the possession of the complainant of the movable property in question is established. Dishonest intention of the accused in removing the property has to be established in addition. In order to prove dishonest intention the question of title to the property certainly will enter into the picture. A bona fide claim of right would be a good defence in a charge of theft. When the accused sets up the defence that he had a claim to the property which he took away from the complainant, it is for the prosecution to establish the dishonest intention to show that this so-called claim was not made in good faith, but was only a cloak to conceal his dishonest intention and that there was no substance in the claim to the knowledge of the accused himself. It may be that the accused acted illegally even on the basis of his claim to the property in dispossessing the complainant, but in a case of theft, the accused cannot be found guilty by holding that he acted illegally in dispossessing the complainant. Theft can be established only by proof of the dishonest intention and not by proof of illegality. The accused may be liable for such illegality in tort or under civil law or may be guilty under some other section of the Penal Code.
The case against the accused persons was that they removed jack-fruits etc. from the ail of the complainant. But the complainant failed to prove that the disputed ail was in his possession. Besides that the complainant also failed to prove that they removed the jack-fruits etc, with dishonest intention. In these circumstances, I am fully satisfied that the conclusion to which the Sessions Judge came on this aspect of the case is perfectly sound. From what I have stated above, it follows that the conviction and sentence in this case cannot be allowed to stand.
10. I, therefore, accept the reference and set aside the conviction and sentence passed by the learned Magistrate against the accused persons, and all the accused are acquitted.