K. Lahiri, J.
1. The petitioners have projected this criminal revision against their conviction Under Section 427/34 I.P.C. passed by the Assistant Sessions Judge in Sessions Case No. 10 (S-J) 72 and upheld on appeal by the learned Sessions Judge, Jorhat in Criminal Appeal No. 18 (1) of 1976 sentencing them to suffer R. I. for one week only.
2. Grave and serious allegations were brought against the petitioners and four others to the effect that they had set fire to a shack, put up by the first informant Puma, forming an unlawful assembly with deadly weapons and entering into the paddy field of Purna. Upon investigation, police submitted charge-sheet against the accused Under Section 147/436 I. P. C. However, the petitioners along with four others were committed by the Magistrate to stand the trial Under Section 148/149/436 I. P. C read with Section 34. The accused stood their trial and were charged by the learned Sessions Judge Under Section 148/34, 149/ 436/34 I. P. C.
3. The case of the prosecution is that Purna is the owner of the land and has title to it. There were as many as three proceedings Under Section 145 Cr. P. C. since 1966 and in all these proceedings the possession of the land was declared in favour of the accused. Purna was also a party in one of the proceedings against the accused. It is indubitable that in the proceedings the Magistrate determined possession in favour of the accused and declared that the accused were entitled to possession of the present land until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. Purna claims that notwithstanding such declaration of possession and prohibitory order passed by the Magistrate he merrily continued to possess the land in violation of lawful order passed by the Courts, ploughed the land (subject matter of the proceeding) and constructed the shanty valued hardly at Rs. 100/-. He alleged that on 11-9-1972 at 6 p.m. in presence of all and sundry the accused, forming an unlawful assembly set his shanty on fire.
4. The Assistant Sessions Judge completely disbelieved the prosecution case as to rioting, arson and unlawful assembly but convicted the petitioners in respect of a charge Under Section 323 read with Section 34 I. P. C. for driving out Purna by force from the land. The Assistant Sessions Judge also convicted the accused Under Section 427/34 I. P. C. for destroying the hut. The petitioners preferred an appeal. The learned Sessions Judge has acquitted the petitioners of the charges Under Section 323/34 I. P. C. holding that no hurt was caused to Purna and, no charge in respect thereof had been framed against the petitioners by the Assistant Sessions Judge. The learned Sessions Judge further held : 'At best offence of assault as understood in the Penal Code might have been committed by the two appellants if the fact of driving out Purna forcibly from the land be true. But as the ejahar is completely silent about this aspect of the matter, I have not thought it fit to convict the two appellants under any Section of the Penal Code for this allegation against them.' Therefore, the learned Sessions Judge disbelieved the story of forcibly driving out Purna from the land in question. Further the learned Sessions Judge held : 'The trial Court therefore took the view that when fire had been set there was no house as such but only the debris of the house and as such no human dwelling was burnt'. Therefore, the learned Sessions Judge also believed that there was no house on the land and what were burnt were only some debris. The learned Sessions Judge completely disbelieved the testimony of P. Ws. 3 & 4. The learned Sessions Judge believed that P. W. 5 did not see who had set fire to the house. It may be stated here that the alleged demolition of the house was prior to the alleged act of setting the debris on fire. As such, the conclusions arrived at by the learned Sessions Judge completely destroys the evidence of P. W. 5 as to his statement regarding demolition of the house. Further this witness definitely made false statement that police had found half burnt utensils in the shack. The last occular witness, namely, P. W. 6 was not believed as his evidence to the effect that the house had been burnt by the petitioners was a complete contradiction with his earlier version before the police wherein he had stated that he had not seen the persons who had committed arson. The learned Sessions Judge also came to the conclusion that the prosecution witnesses had been trying to exaggerate the story of arson to implicate the petitioners. Therefore, in short, out of five witnesses (including P. W. Purna), he has totally disbelieved P. W. 2, 3 and 4. He could not place implicit reliance on the testimony of P. Ws. 5 and 6. He has positively held that these witnesses 'were trying to exaggerate' the allegations to implicate the petitioners. There is no finding that the two witnesses (P. Ws. 5 and 6) were found to be firm, positive and reliable. On the other hand he expressed in so many words that they had exaggerated the story to implicate that is to say to falsely implicate the petitioners. Interestingly the learned Sessions Judge did not consider the effect of the orders passed in favour of the petitioners in the proceedings Under Section 145 Cr. P. C. where the possession of the land had been declared by competent court in favour of the petitioners and further ordering P. W. Purna not to interfere with the possession of the petitioners in respect of the land in question. In a paragraph, the learned Judge dealt with the case against the petitioners on the basis of which he sustained the conviction of the accused Under Section 427/34 I. P. C. which is quoted herein below:
The above shows that though the witnesses were trying to exaggerate when they stated that Akanti and Gathi had set fire to the house, there is little doubt that damage to the house had been caused by a party of which Gathi was a member and which was led by Akanti. The submission of Shri Sarma that damage to the house was not to cause any wrongful loss to the complainant, but to assert the possession of the accused party cannot be fully accepted. The accused, party might have taken to its head to demolish the house of Purna, which might have been constructed there to assert his own possession, to uphold their own right; but to me it appears that they were not within the bounds of law in having done so even if it be conceded that possession of the land was with them which was challenged by the learned Public Prosecutor by relying on the fact of issue of patta of the land in the name of Purna. The decision reported in : AIR1955Cal474 cited by Shri Sarma would not apply on all fours to the facts of the present case.
From the above it appears that the learned Judge made the following observations:
(1) That the witnesses were trying to exaggerate the story to rope in the petitioners Akanti and Gathi;
(2) That the assertion that the accused had been in possession of the land could not be fully accepted;
(3) That the house might have been constructed by Purna to assert his right, the accused might have taken in their heads to demolish the house in order to uphold the right of the petitioners; and
(4) That even if the accused persons had been in possession of the land they had no right to demolish the house and assert their right and, issuance of patta in favour of Purna outweighed the legally valid orders of competent courts declaring possession in favour of the petitioners and against Purna, prohibiting the latter not to disturb the possession of the petitioners. As patta was issued in favour of Purna the principles of law enunciated in : AIR1955Cal474 Paritosh Jana v. State, were not applicable in the instant case.
5. Mr. P.K. Goswami, the learned Counsel appearing on behalf of the petitioners has submitted, that in the instant case the courts below have acted illegally and without jurisdiction in relying on a minor part of the prosecution case while rejecting the major and substantial part of it, relying on the testimony of the witnesses who, on the own saying of the learned Judge, were out to rope in the petitioners by exaggerating the prosecution case. It is undoubtedly true that the courts below have completely disbelieved the story of the prosecution witnesses in respect of arson, unlawful assembly and rioting as depicted by P- W. Purna and P. Ws. 3 to 6. It is also clear that on the evidence of the same set of witnesses the trial court convicted the accused in respect of the offence of mischief. The learned Sessions Judge has completely disbelieved the evidence of P. Ws. 3 and 4, could not place reliance on the testimony of P. W. 6, and came to the conclusion that p. W. 5 did not see the act of arson which was an act subsequent to the alleged offence of mischief. Further the learned Sessions Judge held that the witnesses had exaggerated the story to rope in the petitioners. It goes without saying that there was a long series of litigations between P. W. Purna and the accused since 1966 in respect of the land in question- As such, on the own findings of the learned Sessions Judge the case against the petitioners is based on highly interested witnesses on whom no reliance could be placed and all the prosecution witnesses deliberately exaggerated the story against the petitioners. The learned Counsel is justified in submitting that no conviction can be sustained on the testimony of the witnesses on the own findings recorded by the learned Sessions Judge. There is no finding arrived at by the learned Judge that he could place implicit reliance on any of the prosecution witnesses to uphold the conviction of mischief. As such, it is difficult to sustain the conviction and sentence on the basis of the findings arrived at by the learned Sessions Judge.
6. Mr. P. K. Goswami, the learned Counsel for the petitioners has submitted and that too very rightly that the learned Sessions Judge could not reject the petitioners' claim of possession in respect of the land. Counsel submits that from the own findings of the learned Sessions Judge it appears clear that he did not reject the said claim of the petitioners. I also find the assertion to be well borne out; the learned Sessions Judge has observed that 'the possession of the accused party cannot be fully accepted.' This shows that the Sessions Judge could not reject the claim of the petitioners as unfounded. It may be noted here that the learned Sessions Judge fell into error in overlooking the provisions of Section 145(6) of the Cr. P. C. The declarations made by competent criminal courts in proceedings Under Section 145 Cr. P. C. declaring possession in favour of the petitioners in respect of the land and prohibiting Purna to enter upon the land and disturb possession of the petitioners, were the mandates which Purna was bound to obey. It cannot be heard to say that Purna had a right to violate the lawful orders promulgated against him in pursuance to the order of the court. Until the petitioners could be evicted from the land 'in due course of law' Purna had no right of entry. There is no material to hold that Purna obtained possession of the land after the prohibitory orders 'in due course of law'- As such, there is a strong force in the contention of the learned Counsel that the conviction of the accused Under Section 427/34 I. P. C. is liable to be set aside on the ground that the act of entry of Purna was wrongful, illegal and violative of the lawful orders passed against him.
7. The learned Counsel is perfectly justified in submitting that once the learned Sessions Judge confirmed the findings of the trial court that 'there was no house as such but only the debris of the house', the conviction of the accused for demolition of the house and causing mischief must fall through. When the learned Sessions Judge confirmed the finding that there was no proof of existence of the house standing on the land, said to have been constructed by Purna but there were only some debris or materials, it does not stand to scrutiny as to how the petitioners could have been convicted for demolishing a non-existing house. On the failure of the prosecution to establish beyond reasonable doubt that there had been a house constructed by them, the petitioners could not have been convicted of the charge of mischief in demolishing a hut which had no existence at all. In this view of the matter as well the conviction is insupportable.
8. The learned Counsel for the petitioner has very rightly contended that the conviction of the petitioners is based on the findings grounded on 'might have' or 'appears' expressions and there are no firm findings as to the culpability of the accused. A perusal of the quoted observation would show that the learned Judge held that the accused 'might have' taken to their heads to demolish the house of Purna which 'might have' been constructed there to assert Puma's possession and the accused 'might have' gone there to uphold their own right. It is undoubtedly true that there is no firm finding either way on the points. Without a finding beyond reasonable doubt in favour of the prosecution no conviction could have been possible While considering the main issue the learned Judge relied on the pattas issued in favour of P. W. Purna but utterly failed to apply his judicial mind as to the effect of the orders passed in favour of the accused in the proceedings Under Section 145 Cr. P. C. If the learned Judge would have considered the effect of the orders he could not have arrived at the conclusion that P. W. Purna had any semblance of right of possession or entry upon the land and/or to put his house building materials and/or to put up a shack, as alleged by the prosecution. Non-consideration of the effect of the proceedings has resulted in a failure of justice. If the effect of the orders would have been considered the conviction could not have been sustained. Under these circumstances, it is not possible to uphold the findings of the learned Sessions Judge and sustain the conviction of the petitioners.
9. I have no hesitation in coming to the conclusion that by virtue of lawful orders passed in Section 145 proceedings the petitioners had rightful possession and entry of P. W- Purna was illegal and wrongful. His entry upon the land amounted to an offence Under Section 188 I. P. C. As the petitioners had the backing of a lawful order to continue in possession and as the act of Purna amounted to an offence or at least violation of a lawful order promulgated, the accused had the right to throw out the trespasser and/or to dismantle the hut constructed, if any. The accused acted within their rights if they did in fact demolish the hut. If they were acting within their rights being armed with the orders of the courts or at least if they had the belief, the petitioners cannot be held guilty of the offence of mischief, for there could have been no intention to cause wrongful loss or damage. It is apparent that the main intention of the accused was to uphold their possession declared in their favour by the courts. Any encroachment on the land could have been resisted by the accused. They had the right to throw away or to remove any such encroachments. If a person puts a lock illegally and wrongfully and prevents the rightful owner to enter his house the person so obstructed illegally and wrongfully has a right to break open the lock and enter into his house. If he does, it amounts to a rightful act to thwart a wrongful act and in doing so if the lock is broken the person cannot be made liable for mischief. In the instant case when the accused had bona fide belief that they had rightful possession and the construction or debri; put in amounted to wrongful encroachment or trespass they had legal right to demolish or remove it. The moot question is as to whether in a case of that nature when unlawful encroachments arc made and constructions set up to destroy or demolish the rightful title or interest of a party by a trespasser is it an offence to remove it or throw it out? In my opinion, when such obstructions or constructions are stealthily put up or made by a trespasser to set up his claim the person in lawful possession has lawful right to remove them. The view that I have taken is based on (1904) 1 Crl LJ 668, Nga Si v. Crown (Low Bur) : (1928) 29 Crl LJ 642 (Pat), Har Prasad Singh v. Hulsan Chamar (1950) 51 Crl LJ 1333 (Orissa), Sadapanigrahi v. Raghunath Das; Paritosh Jana (supra). In Ram Ratan v. State of U.P. : 1977CriLJ433 , while considering the question of right of private defence, it has been observed by their Lordships as follows:
It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing the possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.
10. As such, it is clear that the person in rightful possession has every right to dispossess or throw out a trespasser while the trespasser is in the act or process of trespassing. As such, the petitioners had the right to dispossess or throw out a trespasser. The act of dispossession or throwing out, in my opinion, includes throwing out of the material objects with which the trespass is committed. It is undoubtedly true that the trespasser may be thrown out. It would be equally correct to say that if any articles or things are put in, in the process of trespassing, the person in rightful possession of the property has a right to throw away 01 to 'dispossess' the trespasser or the symbolic articles put in by the trespasser. Once the symbolic articles put in by the trespasser are permitted to remain there, the act of trespassing may amount to assertion of right by the trespasser and in order to throw the articles out the true owner shall be required to take recourse to the long and arduous remedies as provided under the law. Under these circumstances, I am constrained to hold that if any unlawful constructions are made by a rank trespasser the true owner or person in rightful possession of land has the right to throw out the materials and/or constructions. In the instant case, the accused had a rightful claim. Purna put in the materials and/or put up the shack illegally or wrongfully and in violation of lawful orders of the courts and had committed an offence. Even if the accused persons had demolished or caused any damage or harm to the materials or constructions they were within their own rights to do it. The requisite intention or knowledge were conspicuously absent in the instant case. No bona fide act of an accused can amount to an offence. The petitioners had acted in assertion of their right conferred upon them by lawful orders passed by the courts and they resisted the act of trespass of Purna, which amounted to an offence in the eye of law. In this view of the matter as well, no conviction Under Section 427 read with Section 34 I. P. C. can be sustained.
In view of the foregoing conclusion arrived at, I set aside the conviction and sentences passed against the petitioners Under Section 427/34 I. P. C. and allow the petition.