T.N.R. Tirumalpad, J.C.
1. This is an appeal Under Section 417 (3) Cr.PC against the acquittal by the learned 1st class Magistrate, Sadar, Agartala of the 10 accused persons in C. R. No. 312 of 1957. Special leave was obtained from this Court to file the appeal.
2. The case of the prosecution was that on 9-5-1957 at about 6 P.M. the accused persons along with others armed with various weapons entered the paddy land measuring 2 kanis 6 pandas 2 karas and 2 krauts belonging to the appellant and P, W. 2 and destroyed the paddy crop therein causing a damage of Rs. 200/-. The appellant and P.W. 2 had purchased the said land under the title deed Ext. P-l dated 19-10-1955 from one Jharu Meah and wag in possession of the said land ever since then and cultivating the same until the day of occurrence on 9-5-1957 when the accused persons along with many others entered the said land and caused the damage. The accused persons were charged Under Sections 143, 447 and 427 IPC before the Magistrate.
3. The defence of the accused persons Haridas Dev Nath and Gopal Chandra Bhowmik was that they had purchased the land from Ali Meah, the brother-in-law of Jharu Meah under the sale deed Ext. D-l dated 16-1-1957 and that they were in possession of the said land and that the story of destruction of the paddy plants was false. The defence of the remaining 8 accused was that the occurrence was false and that they were innocent.
4. Six witnesses were examined by the prosecution before the Magistrate. P.W. 1 was the complainant but he was not an eye-witness to the occurrence. P.W. 2 was the co-purchaser of the disputed land along with P.W. 1 and he gave evidence that the 10 accused persons armed with weapons entered the land on 9-5-1957 and destroyed the paddy crops by ploughing in spite of the protests of P.W. 2 and one Umesh, the younger brother of P.W. 1 and that they suffered a loss of about Rs. 200/-. P.Ws. 3-5 are also persons who witnessed the occurrence and supported the evidence of P.W. 2.
P.W. 6 proved the title deed Ext. P-l in the name of P.Ws. 1 and 2 and spoke about die possession of the land by P.Ws 1 and 2. He also stated that after the subsequent purchase of the disputed land by the accused Gopal and Haridas from Ali Meah, the complainant took the matter before the Village Panchayat of which he was the President and P.W. 6 advised the accused persons not to disturb the peace but to proceed according to law.
5. The defence examined 3 witnesses in support of the case of Haridas and Gopal that they had purchased the land from Ali Meah and were in possession of the same. D. W. 1 was Ali Meah. He stated that the land, jote No. 10 measuring 1 drone, 4 kanis, 3 gandas and 1 kara of which the disputed land formed a part belonged to his father Korban Ali who had 3 sons and 4 daughters, that Jharu Meah who sold the land to P.Ws 1 and 2 was the husband of one of the daughters Gadan-nessa who had pre-deceased Korban Ali and was thus not entitled to any share in the property, that the witness himself was in possession of the land which he sold to Haridas and Gopal and that after the sale they were in possession of the land.
D. W, 2 is an Advocate. He produced a paper Ext. D-3 which he had prepared on 11-4-1957 showing the devolution of property to the heirs of Korban Ali after his death. According to him he pro-pared it at the instance of D. W, 1. That paper was intended to show that D. W. 1 had told D. W. 2: that Gadannessa was not entitled to a share in the property left by Korban Ali. It is interesting to note that Ext. D-3 was got prepared only a few days before the date of occurrence. D, W. 3, the scribe of Ext. D only proved the document.
6. On the above evidence the learned Magistrate acquitted the accused. It will be seen that the accused were charged with the offences of unlawful assembly Under Section 143, of mischief causing damage to an amount of over Rs. 50/- Under Section 427, and of criminal trespass Under Section 447 IPC The offences in this case were said to have been committed on the property in the possession' of P.Ws. 1 and 2. The question which the Magistrate had to decide was whether the land in question was in the possession of P.Ws. 1 and 2 on the date of occurrence and whether the accused persons were guilty of forming themselves into an unlawful assembly and committing criminal trespass on the said land and mischief causing damage of over Rs. 50/- as alleged by the prosecution.
What the learned Magistrate actually did was first to enter on a discussion as to the title of the disputed land. He came to the conclusion that Jharu Meah who had sold the land to P.Ws 1 and 2. did not have any title to the land in the face of the evidence of D. W. 1 Ah Meah that his sister Gadannessa had pre-deceased his father Korban Ali and that Haridas and Gopal who purchased the land from Ali Meah got a valid title to the said land and that that claim to the disputed property cannot therefore be called mala fide.
7. On this background of title which he vested in the two accused persons Haridas and Gopal, he proceeded to discuss the oral evidence. After that it was not very difficult for him to disbelieve the oral evidence of P.Ws. 1-5 altogether because in his-opinion P.Ws, 1 and 2 were setting up title to their land in which they had no manner of right on the strength of the purchase under Ext. P-l, So he disbelieved the evidence of P, Ws 1 and 2. As P.W. 3 was the husband of the nice of P.W. 2 he disbelieved the evidence of P.W. 3.
As for P.W. 4 he found a contradiction between his evidence and that of P.W. 2 because P.W. 4 had stated that the paddy on the land was grown by P.Ws. 1 and 2 and by Umesh the brother of P.W. 1, while P.W. 2 had not said that the crops were grown by him. As for P.W. 5 his evidence was disbelieved because he was only a daily labourer possessing no property and because he had omitted to say that Umesh the brother of P.W. 1 had also protested when the accused persons were destroying the paddy plants while P.W. 2 had said that he and Umesh made the protest. From this the Magistrate came to the conclusion that the prosecution has not proved the occurrence by the examination of disinterested and' reliable witnesses. He therefore acquitted all the accused.
8. I cannot help remarking that the method of approach to the case adopted by this Magistrate is far from correct. It was no part of the duty of the Magistrate to take upon himself the task of deciding the title to the property as between P.Ws. 1 and 2 on the one hand and the accused Haridas and Gopal on the other. It is for the Civil Courts to adjudicate on the question of title and not for Criminal Courts.
The Magistrate has remarked about the non-examination of Jharu Meah to support the fact that Gadannessa died only after Korban Ali. It is clear that the Magistrate seemed to be under the impression that he was called upon to decide the question of title as between the two parties. He allowed the defence to examine Ali Meah in support of the case of title to the land set up by Gopal and Haridas. Nay, he even allowed an Advocate who seems to have given legal advice to D. W. 1 to be examined in support of the said title. Such procedure is unknown in criminal cases.
9. The Magistrate was concerned only with the question of possession of the land on the date of occurrence and not at all with the question of title. His entire judgment has become vitiated by this wrong approach to the case.
10. The accused were charged Under Section 143 with being members of an unlawful assembly with the common object of committing mischief, causing damage to the complainant and criminal trespass in the land in the possession of the complainant. With regard to the mischief causing damage as well as the criminal trespass said to have been committed by the accused in furtherance of the common object separate charges Under Sections 427 and 447 IPC were also framed against them. Thus one of the main questions to be decided by the Criminal Court was the. actual physical possession of the land in dispute on the date of the occurrence.
The learned Magistrate never attempted even to discuss the evidence of such possession. Having held that the title to tile property vested in Haridas and Gopal by that purchase from Ali Meah (D. W. 1) he did not bestow any further attention on the question of possession. He disbelieved the entire evidence let in by the prosecution. A reading of his judgment shows clearly that he was influenced in so disbelieving the prosecution evidence by the conclusion he came to on the question of title to the land.
Thus without discussing the evidence relating to the possession of the land and to the occurrence spoken to by the prosecution witnesses he simply said that all the prosecution witnesses were interested or unreliable witnesses, that the prosecution has failed to examine any disinterested witness and so he disbelieved the fact that such an occurrence took place.
11. That is a most unsatisfactory way of dealing with the case. The judgment of the Magistrate is vitiated by his failure to consider the evidence regarding possession and also by his dealing with the question of title which he had no jurisdiction to decide. Any documents of title which the parties produced before him can be used only in so far as they helped him to decide the plea of possession. Thus the judgment of the Magistrate cannot be allowed to stand and hag got to be vacated.
12. this Court will have now to decide afresh on the evidence as to whether the prosecution has proved its case that the appellant was in possession of the land and secondly whether the alleged offences with which the respondents were charged have been brought home against them.
13. It is clear that the land jote No. 10 measuring 1 drone 4 kanis 3 gandas and 1 kara originally belonged to Korban Ali, the father of D. W. 1 and the father-in-law of Jharu Meah who executed the sale deed in the names of the complainant and P.W. ,2. After the death of Korban Ali and also of his daughter Gadannessa the latter's husband Jharii Meah sold the land in dispute measuring 2 kanis 6 gandas 2 karas and 2 krants cut of jote No. 10 within four stated boundaries to the complainant and P.W. 2 for Rs. 1000/- under Ext. P-l dated 19-10-1955.
It is the case of the complainant and P.W. 2 that they were in possession of the disputed land on the strength of Ext. P-l. This was no doubt denied by the defence according to whom Jharu Meah had no right at all in the land and had no possession and Ali Meah D. W. 1, the son of Korban Ali was entitled to the land and was in possession. The further defence case is that Ali Meah sold the disputed land to Haridas and Gopal among the accused under Ext. D-l on 16-1-1957 i.e. about three and half months before the date of the occurrence and that ever since that purchase they have been in possession of the said land.
14. We are not concerned in the criminal case with the dispute as regards title, if any, between Jharu1 Meah and Ali Meah. We are only concerned with the case as to whether the complainant and P.W. 2 got possession of this land on the strength of the sale deed Ext. P l, The evidence on the side of the prosecution on this point is that of P.W. 1 and P.W. 2, both of whom say that after the purchase they have been cultivating the land. With regard to the crop standing on the land on the date of the occurrence, P.Ws, 1-5 have all spoken.
P.W. 6 who has attested the sale deed Ext, P-l has also spoken about the possession of P.W. 1 since the purchase. The prosecution has produced the decree in T.S. No. 10 of 1957 on the file of the Munsiff, Sadar which was a suit filed by P.Ws. 1 and 2 for a permanent injunction against Ali Meah, his brother Siru Meah and one Sultan Meah to restrain them from disturbing the possession of P.Ws, 1 and 2 over the said land. None of the defendants appeared in the suit and it was decreed on 21-3-1957 granting the permanent injunction prayed for.
The learned Magistrate has not even referred to this decree in his judgment though it was a vital document showing the possession of the complainant and P, W. 2 as against Ali Meah from whom Haridas and Gopal got the sale deed Ext. D-l. The effect of this decree is that Ali Meah's case of pos-session of the disputed land cannot even be entertained by any Court until he gets the decree set aside.
15. What Ali Meah did was to execute a sale deed in the name of Haridas and Gopal of 2 acres out of jote No. 10 on 16-1-1957 the very date on which the T. S. No. 10 of 1957 was filed against him by P.Ws. 1 and 2. The sale deed Ext. D'l is said to be in respect of the very land which P.Ws. 1 and 2 have purchased from Jharu Meah under Ext. P-l. But it will be seen from Ext. P-l that definite boundaries have been stated in the said sale deed, northern land belonging to Debendra and others, southern land to Cham Bhuiya, eastern land being Tilla and western land belonging to P, W. 1.
It may be mentioned here that Ali Meah had executed many other sale deeds in respect of various portions of jote No. 10 to very many persons including Charu Bhuiya one of the accused persons in the case and the persons seen in Ext. P-l as owning the boundary properties are the persons in whose names Ali Meah had executed sale deeds. D. W. 1 himself admitted such sales in the name of Debendra and Cham Bhuiya, But when we come to Ext, D-l, we see that none of these persons are mentioned in Ext. P-l as owning the boundary lands.
On the other hand, Ext. D-l shows that the lands to the north, wesr and south are lands belonging to Ali Meah himself while to the east it was said to be merely Tilla land. When we remember that Ali Meah's father Korban Ali and after his death Ali Meah himself owned the major portion of jote No. 10, it will be clear that the boundaries given in Ext. D-l did not specify definitely the actual land sold to Gopal and Haridas. We are asked to believe that Gopal and Haridas got possession of the disputed land on the strength of such a deed.
16. It has also to be mentioned here that Ali Meah had instituted two criminal cases against P.W. 1 in both of which the latter was acquitted 4 and that in respect of another land sold by AU Meah's wife to P.W. 1 the latter had to file a declaratory suit to get a decree against Ali Meah. It was in this situation that Ali Meah executed the sale deed Ext. D-l in the name of Haridas and Gopal without giving any clear-cut boundaries. On the strength of the boundaries mentioned in Ext. D-l, Haridas and Gopal could lay claim to any portion of jote No. 10.
One cannot but feel prima facie that the purpose of executing such a sale deed On the very day when P.Ws. 1 and 2 had filed the suit for permanent injunction against Ali Meah and his brother was rather speculative. In any case until Ali Meah is able to vacate the decree passed in T. S. No. 10 of 1957 he cannot deny the possession of P.Ws. 1 and 2 of the disputed land.
17. We are now asked to believe that Haridas and Gopal got possession of the disputed land on the execution of Ext, D-l. But D. W. 1 Ali Meah in his evidence did not say that he handed over possession when he executed the sale deed. It is also impossible to believe in the face of the decree in T, S. No. 10 of 1957 that he would have been in a position to hand over possession. According to D. W. 1 Haridas and Gopal entered into the disputed land after the purchase in the month of Baisakh (15th April to 15th May) for the first time. It is in the month of Baisakh that the very occurrence took place. This evidence of D. W. 1 which was not adverted to at all by the Magistrate was an indication that the accused persons entered on the land only at the time of occurrence. It is f unfortunate that the learned Magistrate did not consider the matter in this light at all and totally failed to discuss the evidence relating to possession,
18. When we know from the evidence of D. W. 1 himself that the accused persons entered into possession only in the month of Baisakh, it is a clear indication that the alleged criminal trespass set up by tile prosecution is true. If the learned Magistrate had read the evidence of P, Ws. 1-5 in the light of this fact he would have had no reason to disbelieve the evidence of P.Ws. 2-5 at all.
19. Now coming to the actual occurrence we have the evidence of P.W. 2 that the 10 accused persons along with others armed with lathi etc. surrounded the land on the evening of 9-5-1957 when he and P.W. l's brother Umesh were in the land and in spite of the protests of himself and Umesh they destroyed the paddy land by ploughing the land as a result of which they suffered a loss of about Rs. 175 to Rs. 200/-. P.W. 1 stated that he returned home that evening when P.W. 2 and others reported the incident to him.
P.W. 3 also witnessed the occurrence and supported the evidence of P.W. 2. So also P.Ws. 4 and 5 both of whom have spoken about the trespass as well as the destruction of the paddy crops. The learned Magistrate disbelieved the evidence of P.W. 2 because he is a relation of P.W. 1. He forgot that P.W. 2 is a co-owner of the land. Though yhe did not figure as a complainant he was interested in protecting his property and he was present in the land at the time. The fact that he is a relation of P.W. 1 by itself is no reason to reject his testimony if it is found reliable in other respects.
The prosecution can only produce the evidence of persons present in the land at the time and if they happened to be relations, it cannot be helped. But the Magistrate cannot dismiss the evidence of the witness for that reason alone. The learned Magistrate disbelieved the evidence of P.W. 3. P.W. 3 only stated that P.W. 2 has married his niece (by courtesy) which meant P.W. 3 is a distant relation. The evidence of P.W. 4 was disbelieved by the Magistrate for the reason that he mentioned that the crops in the land were grown by P.Ws 1 and 2 and Umesh, the brother of P.W. 1 while P.W. 2 had not stated in his evidence that the crops were grown by him.
The Magistrate took this to be a contradiction, but he failed to see that P.W. 2 was a co-owner of the land and he was entitled to the crops. There was nothing wrong in P.W. 4's evidence that all the three of them had raised the crops. As for P.W. 5, his evidence was rejected because he had failed to state as P, W. 2 had done that Umesh also protested when the accused persons were destroying die crops. Such a reasoning is utterly meaningless. It may be that P.W. 5 heard the protest raised only by P.W. 2 and not by Umesh.
Another reason for rejecting the evidence of P.W. 5 was that he was only a labourer and did not own any landed property. Truth is certainly not the monopoly of persons owning landed property. Thus the reasons given by the Magistrate for rejecting the evidence of P.Ws. 2-5 are no reasons at all. Particularly when there is a clear admission by D. W. 1 himself that the accused persons entered the land for the first time in Baisakh and when we know that the incident itself took place in the month of Baisakh, there can be no doubt left in the minds of any reasonable man on the evidence adduced by the prosecution that the accused persons had formed themselves into an unlawful assembly and had committed criminal trespass on the property in the possession of P.Ws. 1 and 2 and that they had committed mischief by destroying paddy crops worth more then Rs. 50/-. The acquittal of the accused by the Magistrate Under Sections 143, 447 and 427 IPC is therefore, set aside and they are convicted under all the 3 charges,
20. The next question is as to the punishment which should be imposed upon them. In view of Section 71 I.P.G. I do not propose to punish them for more then one of such offences. Under Section 143 the maximum punishment is 6 months' imprisonment or fine and Under Section 427 it is 2 years' imprisonment or fine and Under Section 447 it is 3 months' imprisonment or fine. Under the circumstances of this case, it will be sufficient punishment if each of the accused is sentenced to pay a fine of Rs. 50/- or in default to undergo simple imprisonment for a period of one month. Sentences are passed on each of the accused accordingly. The sentences are passed for the conviction Under Section 427 I P. C.