K.N. Saikia, J.
1. The petitioners impugn their conviction Under Section 447/379 IPC and sentence of 10 (ten) days' simple imprisonment and a fine of Rs. 50/- each, in default simple imprisonment for 15 more days. They were prosecuted for their alleged trespassing upon and reaping paddy away from the field of complainant-opposite party No. 2 on 23rd Aug. 1976. Tried in warrant procedure, they were charged Under Sections 447 and 379 IPC to which they pleaded not guilty stating that they had bona fide claim of right. The prosecution examined six witnesses and submitted some documents while the defence did not examine any witness but submitted some documents in support of bona fide claim of right. On the basis of the evidence on record the trial court convicted the petitioners, as above and their appeal was rejected by the learned Sessions Judge holding that the learned Magistrate elaborately discussed the facts and law and was fully justified in holding the petitioners guilty for the offence charged with and that the punishment imposed has been very liberal leaving no scope for interference.
2. Mr. T.S. Deka, the learned Counsel for the petitioner submits that the complainant himself, as P. W. I, having admitted as to the pendency of a civil suit for the same land instituted by his wife against the 1st and 2nd petitioners, Siraj Ali and Rustom Ali, and P. W. 3 having deposed that the petitioners were in possession and P.W. 6 having deposed that the petitioners were seen plouging the land before the Ahu paddy was broadcast, the learned courts below ought to- have accepted the petitioners' plea of bona fide claim of right ; and that there was discrepancy about the type of paddy alleged to have been grown by the complainant opposite party and that which was seized from the possession of the petitioners. While the complainant claims to have grown Ekra variety of Ahu, the 80 'dangaries' seized contained both Ekara and Dubrichinga varieties. Mr. K. Sarma, the learned Counsel for the complainant-opposite party, submits that there was no semblance of any right on the part of the petitioners to the land wherefrom paddy was reaped away and that the discrepancy in the varieties of paddy would not be material for the purpose of Section 379 IPC.
3. P. W. 1 in his examination-in-Chief deposed that the land in dispute was in the name of his wife as pattadar, being patta No. 22, Dag No. 561 and that he had been in possession since 16 years back. He produced Ext. I, certified copy of the Jamabandi, which substantiated his statement. He further deposed that the occurrence took place on 6th and 7th Baihag. During cross-examination before charge he also stated that he filed another civil suit regarding the same land against the accused petitioners. During cross-examination after charge he stated that he instituted another proceeding Under Section 107 Cr.P.C. against the petitioners and that the order was not in his favour. He admitted that the land wherefrom paddy was reaped away was purchased from one Waned in 1962 and that the accused petitioner, Siraj cultivated the land on the western border thereof. From the Judgment of Title Suit No. 13 of 1976 ; Giribala Patowary v. Siraj Ali and Anr., which is at page 79 of the records, it is seen that the suit was for declaration of title and permanent injunction in respect of Dag. No. 561 covered by N.K. Patta No. 22 of village Chatribari. It was alleged there that on 29-3-76 the defendants (the present petitioners) illegally entered into that land and attempted to plough over the same and that the defendants threatened the plaintiff's possession and so she prayed for declaration of permanent injunction. The defendants pleaded, inter alia, that the suit land, along with some other lands, originally belonged to one Khedla Mahajan and that defendant No. I and his brother Late Ahiruddin purchased the same in 1947. That land was sold to one Ajan Ali in 1947 but it was repurchased by them in 1952 and after bringing partition case No. 54 of 51-52 they were possessing the same. It was further alleged that the plaintiff's husband (present complainant-opposite party No. 2) who was a Lot Mandal of that village collusively and surreptitiously got her name mutated in the revenue record and wanted to take forcible possession of the suit land. They did not admit that the plaintiff had any right, title and interest over the land in suit. That suit was decreed on 2-7-77 holding that '(1) plaintiff has got right, title and interest and she be put in khas possession in the land in suit, described in the schedule of the plaint by evicting the defendants. (2) Defendants be restrained from interfering with the possession of the plaintiff by issuing perpetual injunction.' It appears in the same Title Suit No. 13/76 a temporary injunction was issued on 7-4-76 restraining the defendants from entering into the suit land and to show cause why ad interim injunction should not be made absolute. In fact the decree dt. 2-7-77, that the plaintiff (complainant-opposite party No. 2's wife) be put in khas possession of the suit land by evicting the defendants, would indicate that the defendants (Present petitioners) were in possession and whether that was in violation of the injunction order dt. 7-4-76 would, of course, be a different matter. P.W. 1's case was that he grew the paddy on 6th and 7th Baihag which would be in the month of April. Thus it cannot be claimed that the present petitioners were prevented from claiming right to the suit land which is the same as the land wherefrom they allegedly reaped away paddy. The fact that they ultimately lost in the suit would not be material for the purpose of deciding whether they had any bona fide claim of right.
4. Under Section 378 IPC whoever intending to take dishonestly any moveable property out of the possession of any person without that persons' consent moves that property in order to such taking, is said to commit theft. Under Explanation I thereof, a thing so long as it is attached to the earth not being moveable property, is not subject of theft, but it becomes capable of being the subject of theft as soon as it is severed from the earth. Under Explanation 2 a moving effected by the same act which effects the severance may be a theft. Under Illustration (p) to that Section A, in good faith, believing property belonging to Z to be A's own property takes that property out of Z's possession. Here, as A does not take dishonestly, he does not commit theft. Thus beliveing in good faith that the property belongs to him prevents the taking from being dishonest. In Chandi Kumar Das v. Abanidhar Roy : 1965CriLJ496 it has been held that the offence of theft consists in the dishonest taking of any movable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi and without it, the offence of theft is not complete. The court further observed that the ordinary rule that mens rea may exist even with an honest ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. In Apparao v. Lakshminarayana : AIR1962SC586 it was similarly observed at p. 520 of Cri LJ : 'It is settled law that where a bona fide claim of right exists, it can be a good defence to a prosecution for theft. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right'. By the expression 'colour of a legal right' is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. The court further observed that 'If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the court will direct an acquittal' and that 'the best evidence is that the goods were taken quite openly'. The court also approved the following observations in Hamid Ali Bepari v. Emperor ILR 52 Cal 1015 : AIR 1926 Cal 149 : 27 Cri LJ 80 'It is not theft if a person, acting under a mistaken notion of law and believing that certain property is,his and that he has the right to take the same.................... removes such property from the possession of another'. In Ram Ekbal Rai, v. Jaldhari Pandey : 1972CriLJ584 which was a case of crop theft and the question of possession of land and crop on the date of incident was not beyond controversy and due attention was not paid to the evidence on record resulting in mis-judgment of the respective positions of the parties, the conviction and sentence Under Section 379 IPC were set aside.
5. In the instant case there was enough material to show that the petitioners asserted their right to possess the land and they were sued for possession and the decree against them was that Khas possession be delivered to the plaintiff-opposite party's wife. The interim injunction was issued on 7-4-76 precisely at the time when the paddy in dispute could have been grown on the land. The plaintiff opposite party claimed to have grown the paddy on 6th and 7th Baihag which correspond to April. When this evidence was not paid due attention the finding that the petitioners could not have bona fide claim of right, is not sustainable. However weak or slender the right might have been the fact that they were litigating for it showed that they had believed bona fide that they had the right.
6. The fact that the 80 dangaris seized contained both Ekra variety of Ahu and Dub rich ingu variety of Ahu has not been denied by Mr. Sarma. If only Ekra variety of Ahu was grown by the complainant- opposite party, how could Dubrichinga variety Dangaris be there on the same land. This naturally creates doubt about the claim of the com plainant-opposite party. The benefit of doubt, therefore, is given to the accused-petitioners.
7. In the result the conviction and sentence against the petitioners must be set aside which thereby do. As there has been no order as to the disposal of the seized paddy it is not necessary to pass any order. This revision petition is accordingly allowed and the Rule is made absolute. The petitioners are stated to be on P.R. Bonds. They need not surrender to the P.R. Bonds which are hereby cancelled.