1. The complainant Suraj Ali and the accused Arphan Ali are cousins. On the 17th March 1916, Suraj Ali lodged a complaint against Arphan Ali that the latter, along with two others, had, on the 14th March, cut away eight bamboos from is Ham land and had also filled in a pit lade by his sons on another plot of land nth a view to catch fish. Arphan Ali was placed on his trial before an Honorary Magistrate and was charged with offences under Sections 379 and 447, Indian Penal code, namely, first, that he had dishonestly cut and removed eight bamboos from land in patta No. 12 in the possession of Suraj Ali, and secondly, that he had committed criminal trespass on complainant's land in patta No. 15 with intent to fill in a pit made by his sons. The defence in substance was that the land of patta No 12 belonged to the accused and was in his possession and that he had lawfully taken his own bamboos. He further denied that he had filled in any pit and stated that the land in patta No. 15 was the property of his cousin Abdul Sobhan who was in possession thereof. The Honorary Magistrate has convicted the accused and has sentenced him to pay a fine of Rs. 5 and Rs. 3 under Sections 379 and 447 respectively, in default to suffer rigorous imprisonment for five days under each section. The Sessions Judge has recommended that the conviction and sentence be set aside, as the elements necessary for conviction for theft and criminal trespass have not been established. We are of opinion that the view taken by the Sessions Judge is correct.
2. To sustain a conviction under Section 379, it is necessary to prove a dishonest intention to take property out of the possession of another person. Consequently, where property is removed in the assertion of a bona fide claim of right, the removal does not constitute theft. The claim of right must be an honest one, though it may be unfounded in law or in fact. If the claim is not made in good faith, but is a mere colourable presence to obtain or to keep possession, it avails not as a defence. In the present case, the accused admits that he did cut the bamboos, but he maintains that the bamboo clump is his property and is in his possession. Now, even the witnesses for the complainant admit that the accused is proprietor of the land in patta No. 12. The name of the accused is in the patta, while the name of the complainant is not to be found there. No reason is assigned for the absence of his name, should he really be a co-sharer. He admits that he does not know the area of the land included in patta No. 12. His witnesses seek to establish that he pays revenue through his cousin the accused, but he himself does not venture to assert this. Then again, while some of the witnesses seek to make out an amicable partition between the co-sharers, the complainant does not make any such allegation. The evidence of exclusive possession by the complainant of the bamboo clump is, as the Sessions Judge rightly observes, extremely unconvincing, while the proof of his alleged title is even more shadowy. Consequently even if we do not hold that the accused has established his title and possession, there is no room for controversy that this is a case of bona fide dispute as to title and possession, and the accused cannot be held to have dishonestly cut and removed the bamboos. The principle applicable in circumstances like these is well settled and is stated in works of high authority. Sir Mathew Hale in his Pleas of the Crown (Volume 1, pages 506, 509) observes in his quaint style, 'it is the mind that makes the taking of another's goods to be a felony or a bare trespass only, but because the intention and mind are secret the intention must be judged by the circumstances of the fact, and though these circumstances are various and may sometimes deceive yet regularly and ordinarily these circumstances follow direct in this case. If A, thinking he hath a title to the horse of B, seizeth it as his own, or supposing that B holds of him, distrains the horse of B, without cause, this regularly makes it no felony, but a trespass, because there is a pretence of title; but yet this may be but a trick to colour a felony and the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods denies it.' To the same effect is Sin Edward Hyde East in his Pleas of the Crown (Volume II, page 659): 'in any case, if there be any fair pretence of property or right in the prisoner, or if it be brought into doubt at all, the Court will direct an acquittal; for it is not fit that such disputes should be settled in a manner to bring men's lives into jeopardy.' Hawkins puts the matter in much the same way in his Pleas of the Crown [Volume I Book I, Chapter 19, Section (12). See also Rex. v. Hall (1828) 3 Car. & P. 409; Reg. v. Wade 11 Coxe, C.C. 549; Rex. v. Jenuer 7 L.J.(O.S.) M.C. 79; Reg. v. Leppard (1864) 4 F. & F. 51. The same principle has been recognised and applied in a long line of cases in Indian Courts Khetter Nath Dut v. Indro Jalia 16 W.R. 78 Cr.; Hari Bhuimali v. Emperor 9 C.W.N. 974 : 2 Cr. L.J. 836.; Algarasawmi Tevan v. Emperor 28 M. 394 : 2 Cr. L.J. 754, which show that a conviction for theft cannot be sustained if there is a bona, fide assertion of a claim of right, but a mere assertion of a claim does not oust the jurisdiction of the Criminal Court; whether the claim is honest must be decided by the Court from all the circumstances of the case, and as has been said, it should not convict unless it is in a position to say that the claim is a mere pretence Nassib Chowdhry v. Nannoo Chowdhry 15 W.R. 47; Cr. Runnoo Singh v. Kali Churn Misser 16 W.R. 18 Cr. : 7 B.L.R. App. 55; Huris Chundra Das v. Bolai Audhicar 16 W.R. 75 Cr. Madhab Hari In the matter of the petition of 15 C. 390n. Pandita v. Rahimulla Akundo 27 C. 501 : 4 C.W.N. 480.; Empress v. Budh Singh 2 A. 101 and Emperor v. Sabalsang 4 Bom. L.R. 936. In the case before us, we agree with the Sessions Judge that there is a complete absence of any indication of dishonest intention and that, consequently, the conviction under Section 379 cannot be supported.
3. As regards the conviction under Section 417, there is really no evidence that the complainant is in possession of the lands of patta No. 15, while the evidence as to his title is still more illusory than in the case of patta No. 12. On the other hand, there is reliable evidence that Abdul Sobhan holds possession of the land of patta No. 15 and pays revenue for it. In these circumstances, it is impossible to hold that the accused entered into any land in the possession of the complainant with intent to commit an offence or to annoy the person in possession thereof Empress v. Budh Singh 2 A. 101.; Sristidhur Parui v. Indrohhusun Chuckerbutty 9 B.L.R. App. 191 : 18 W.R. 25 Cr. The conviction under Section 447 cannot accordingly be sustained.
4. We accept the recommendation of the Sessions Judge, set aside the conviction and sentence and direct that the fine, if paid, be refunded.