S.K. Ghose, J.
1. In this case, the jury, by a majority of 4 to 1, found all the appellants guilty under Section 143,I.P.C., and, by a majority of 3 to 2, they found the three Das appellants guilty under Section 379 read with Section 109, I. P.C., and they unanimously found all the appellants not guilty of the charges under Section 436 read with Section 109, I. P.C. The learned Judge accepting the majority verdict, sentenced all the appellants to undergo rigorous imprisonment for three months under Section 143 and the Das appellants to undergo rigorous imprisonment of one year each under Section 379/109,I.P.C., the sentences running concurrently.
2. The prosecution case is briefly this; Jnanada, P. W. 10, purchased the rights of a tenant in respect of 82 bighas odd of paddy land, the landlords being the Dases. From the time of his purchase in 1920, Jnanada has been in possession through bhag tenants. At the time of the occurrence, the bhag tenant in possession was one Rakhal and it was he who had cultivated the land and grown the paddy. There was trouble going on between him and the landlords, who were of the accused party. On 23rd November 1929, the Subdivisional Magistrate passed an order under Section 144, Criminal P.C., restraining the appellant Trailokya and others from exercising any act of possession on the land in question, but be-fore that order could be served, the occurrence complained of took place on 28th November 1929. On that date the Appellants and others, numbering about 150 men, variously armed, came upon the land when Rakhal and his men had start-t cutting the paddy. The accused party move away Rakhal and his men and forcible cut and removed the paddy. The accused party This operation lasted for about 7 or 8 days continuously. On the date of the occurence it is further alleged that the accused party looted Rakhal's house and burnt it down. On these alleged facts, the appellants were put upon their trial in respect of the offences above mentioned. The common object set out in the charge under Section 143 was to assert the supposed right of the accused by a show of criminal force and by driving away Rakhal from his house.
3. The defence case mainly was that the holding of Jnanada was sold in auction in execution of a rent decree in 1928 and the auction-purchaser took possession through Court on 19th September 1928, and that since then neither Jnanada nor any bhag tenant of his had been in possession.
4. Mr. Chatterji in arguing the appeal has contended that the learned Judge misdirected the jury as regards the evidence of P. W. 6, Sukchand, who was declared hostile by the prosecution. I do not see however that there was any misdirection. The learned Judge properly warned the jury that they should be careful in accepting the evidence of such a witness in 'support of the prosecution case and he told them that it was for them to say if it was at all safe to accept that evidence. 'With that caution the evidence was left 'to the jury and nothing can be said against it.
5. Mr. Chatterji's chief argument in this appeal however is that the learned Judge misdirected the jury in dealing with the evidence as to a civil litigation between the parties. It is contended that the civil Courts had found that the auction-purchaser, after taking delivery of possession through Court, was actually in possession of the land by realizing bhag crops from the tenants and that the learned Judge should have told the jury that they were bound by the decision of the civil Courts. It appears that evidence was given to the effect that the landlords instituted four rent suits, the fourth one being decreed ex parte on 27th March 1928. In execution of that decree, the holding was sold on 9th July 1928, as possession was delivered through Court on 19th September 1928. Jnanada's case was that all this was a mere paper transaction action, and he applied before the Munsif to have the ex parte decree and the set aside. The application however dismissed by the Munsif and his decision was upheld by the lower appellate Court. These judgments Exs. D and learned in evidence in this case. The learned Judge pointed out that the both the judgements Judge pointed out that both the judgments were passed some months Jury what was of the occurrence. He told was actually held by those judgments and then he said as follows:
The reason given in those judgments are no part of evidence. What has actually been decided in those judgments is certainly evidence; and like any other evidence, it is optional with you either to accept or to reject it. You are not bound by those judgments. If you accept these two judgments as the best evidence, then the prosecution case must be seriously affected.
6. Then he went on to point out that the whole case for the prosecution must fail if Rakhal's story of possession should fail and that it did happen that, even after taking formal delivery of possession, the auction-purchaser might not disturb the actual cultivator.
7. Mr. Chatterji has confided that the learned Judge should have told the jury that it was not open to them to go into the question of possession at all, that question having been already decided in the aforesaid civil actions. He has strenuously contended that the civil Court's decision on a question of fact is binding in a criminal trial. This argument overlooks the elemental position that, in a criminal trial, it is or the Court to deter-mine the question of the guilt of the accused, and it must do this upon the evidence before it. Suppose that it is alleged that A and B he committed a criminal offence and A is first tried and convicted, next B is put upon his trial and his defence is the act alleged was not committed all . In that case the judgment of the previous trial will not be binding on the jury as showing that in fact the criminal offence was committed, nor even that it was committed by A. Mr. Chatterjee has argued that the position would be different in the case of a judgment inter partes where there was first a decision in a civil suit, and then a (sic) for a criminal offence. In reply to this also I may give an illustration.
8. Where a civil Court gives a decree upon the finding that a party has forged a document and then proceeds to prosecute that party under Section 476, Criminal P. C, even then in the resultant criminal trial the factum of forgery is not to be taken for granted, but it has to be determined independently upon the evidence that is adduced in the criminal case. The fact that the parties in both the proceedings are the same makes no difference. These two instances, which are of ordinary occurrence in criminal trials, are sufficient to show the fallacy of Mr. Chatterji's argument. I may however point out that the law of evidence does not make a judgment or a decree admissible in all cases as a matter of course. In the Evidence Act, the imitations are prescribed by Sections 41 to 43 Section 43 provides that judgments, 'decrees etc., other than those mentioned in the three previous sections, are irrelevant, unless the existence of such judgment, decree, etc., is a fact in issue, or is relevant under some other provisions of the Act. Generally speaking, a judgment is only admissible to show its date and legal consequences. If a party indicted for any offence has been acquitted and he sues the prosecutor for malicious prosecution the judgment is conclusive evidence of the fact of the acquittal, but it is not evidence that the defendant was the prosecutor, and the defendant is still at liberty to prove the guilt of the plaintiff. Similarly, a judgment against a master for the negligence of his servant is conclusive evidence that the master was compelled to pay the amount of damages awarded, but it is not evidence of the fact upon which it was rounded, namely, the negligence. If authority be needed for these propositions, may find the cases quoted in the notes , Section 43, Evidence Act, Woodroffe and Ameer Ali's edition.
9. In the present case, the learned Judge appears to have discussed the evidence properly and has left to the jury to decide what weight they should give to that evidence. He pointed out that if the jury should feel disposed to accept the decisions in the other proceedings as the best evidence in the case, then the prosecution case would ' seriously weakened. I do not think that any exception can be taken to this part of the learned Judge's charge. Mr. Chatterji has next contended that the conviction under Section 379/109, I. P.C., is wrong in view of the fact that the Das appellants are the proprietors of the paddy land. question. But this argument overlooks the prosecution case that these appellants were not in possession of the paddy The complainant Rakhal was in actual physical possession and the accused party and forcibly took the paddy away. The whole of the prosecution case v before the jury and, so far as the alleged theft of the paddy and the household goods are concerned, apparently the jury have chosen to believe the evidence. The is therefore no substance in this contention. On the whole we consider that the jury were properly charged and the convictions are correct.
10. As regards the sentence, it is pointed but that, in view of the alleged claim of right, the appellants are entitled to leniency. On the other hand, they undoubtedly acted in a very high-handed manner and they deserve a severe sentence. At the same time, so far as the party in possession is concerned, it must be conceded that payment of compensation is indicated. We are therefore prepared in this case to reconsider the question of sentence of imprisonment, if the appellants be in a position to pay adequate compensation to the other side. This will turn on the question of the value of the paddy that was taken away and not recovered. Learned Counsel on either side has not been able to give us anything like a correct estimate of the value. Figures varying from Rs. 3,000 to Rs. 400 were mentioned. We therefore think that the best course would be to send the record down to the District Magistrate of 24-Parganas for a summary inquiry and report as to the value of the paddy which was taken away and not recovered, and also the value of the house that was burnt down. This report should be submitted to us with the record within a month from the date of the arrival of the record in the Court below.
11. Pending final orders the accused will remain on the same bail.
12. I agree.