T.N.R. Tirumalpad, J.
1. This is a revision petition against the conviction and sentence of the petitioners by the First Class Magistrate in Criminal Case No. 170 of 1957 under Section 379 I.P.C. and against the dismissal of the appeal and the confirmation of the conviction and sentence by the Sessions Judge in Criminal Appeal No. 63 of 1959. The petitioners 1 and 2 were each sentenced to a fine of Rs. 100/-and in default 3 months' R. I. while petitioners 3 and 4 were each sentenced to a fine of Rs. 50/-and in default to 2 months' R. I. each. In giving the higher punishment of fine of Rs. 100/- to petitioners 1 and 2, the Magistrate has remarked that there was an aggravating circumstances against them, namely, that this was a repetition of their earlier offence, in 1956 in respect of the same land.
2. The case against them was that on 9-11-1957, the petitioners with the help of other harvested paddy worth Rs. 250/- from the complainant's land during his absence and thereby committed an offence under Section 379 I.P.C. It was strenuously argued for the petitioners that the oral evidence adduced by the prosecution did not prove the offence against them and that the Courts below did not give the necessary weight to the evidence adduced on behalf of the defence, in coming to the conclusion that the case has been proved against them. It is not possible for me in revision to interfere with the appreciation of oral evidence, when two Courts below have come to concurrent findings of fact, unless it is shown that their findings are totally perverse. I do not therefore propose to deal with the oral evidence. In fact, I admitted this revision only on one ground, namely the heavier sentence passed against petitioners 1 and 2 by the Magistrate as the charge against all of them was the same. So, I propose to deal mainly with that aspect of the matter.
3. But before I proceed to do so, I shall deal with one argument advanced for the petitioners. The charge against the petitioners was under Section 379 I.P.C. that they dishonestly harvested and removed paddy worth Rs. 230/- from the land in the possession of the respondent during his absence an thereby committed theft punishable under Section 379 I.P.C. It was pointed out for the petitioners that there was dispute between the petitioners on the one hand and the respondent On the other, regarding the possession of the land in question and hence there was no dishonest intention on the part of the petitioners in harvesting the paddy from the disputed land and hence no question of theft at all arose.
Actually, the petitioners 1 to 3 admitted harvesting and removal of the paddy from the land in question and their plea was that the land was in their possession and not of the complainant They also produced in the lower Court some documents in support of their case to show that the land was in their possession and they examined 3 witnesses. They also relied on the decision Bhurasing v. Emperor AIR 1935 Sind 115.
It was held in that decision that the removal of property in the assertion of a bona fide claim of right, though unfounded in law and fact, does not constitute theft, although a colourable pretence to obtain or keep possession of property would not avail as a defence and that a Court ought not to convict unless it holds that the claim was a mere colourable pretence.
4. The question is whether the dishonest intention of the petitioners in harvesting and removing the paddy was proved in the Magistrate's Court In order to prove the dishonest intention, the respondent had produced before the Magistrate the judgment of the First Glass Magistrate. Manipur, K. L. Singh, dated 21-1-58 in Criminal Case No. 102 of 1956, which was a case against the petitioners 1 and 2 herein under Section 379 I.P.C. accusing them of harvesting and removing paddy from this very land on 26-9-56 in the absence of the complainant.
In that case, the petitioners 1 and 2 were convicted and sentenced to a fine of Rs. 50/-. The matter was taken up in revision by them in Criminal Revision Case No. 2 of 1958 to the Sessions Court and it was dismissed. These 2 documents were produced not to prove that petitioners 1 and 2 had a previous conviction, but to prove that the fact of possession of the land in question by the respondent had been upheld by the Criminal Court and that the petitioners acted with dishonest intention in harvesting and removing the paddy for a second time from the very same land on 9-11-57.
It was however pointed out for the petitioners that the evidence of such previous conviction should not have been allowed to be let in the trial. 'For this purpose also the decision cited above was relied upon wherein it was held that the evidence of previous conviction was admissible only as specified in Section 54 of the Evidence Act or under Section 14 of the Evidence Act. It was argued that neither Section 14 nor Section 54 of the Evidence Act applied in the present case.
5. If Exts. P/l and P/2 had been admitted in the present case as evidence of previous conviction of the accused persons, the objection raised by the petitioners would certainly have been valid and
I would have unheld the objection. But Exts. P/l and P/2 were marked only to support the prosecution case that the land in question was held by the Criminal Court to be in the possession of the Complainant to the knowledge of the petitioners 1 and 2 and that on that basis petitioners 1 and 2 were convicted on a previous occasion under Section 379 I.P.C. for harvesting and removing the crops from this very land.
Thus the purpose of exhibiting Exts. P/l and P/2 was to prove the dishonest intention of the petitioners 1 and 2 in harvesting and removing the paddy from the land in question and not to prove that by reason of such Previous conviction they were liable to enhanced punishment or to punishment of a different kind. In the latter case, there ought to be a charge against the accused persons under Section 221(7) Cr. P.C. and such charge can be framed and evidence let in only after conviction for the offence.
I am satisfied that Exts. P/l and P/2 were not admitted in the Lower Court in support of such previous conviction as mentioned in Section 221(7) Cr. P.C. Exts. P/l and P/2 clearly showed that petitioners 1 and 2 were not in possession of the land on 26-9-56 and that the respondent was in possession and hence it proved the dishonest intention of the petitioners 1 and 2 in harvesting and removing the paddy in the absence of the respondent on 9-11-57. For that purpose Exts. P/l and P/2 Were quite relevant and admissible in evidence. I may mention here that there was no dispute in the Lower Court about the identity of the land in question. The dispute was only about the possession of the land and that was proved beyond any manner of doubt by Exts. P/l and P/2 to be in the possession of the respondent. Hence it followed that the dishonest intention of the petitioners was proved.
The petitioners argued that the documents produced by them in support of their possession were not discussed by the Lower Courts. I find actually that the documents were referred to by the aP-pellate Court and it remarked that the petitioners failed to connect the documents with the land in question. Further, in view of the earlier finding regarding possession by another Criminal Court, the question did not arise. Hence, I cannot say that the Lower Court erred in any manner in admitting Exts. P/1 and P/2
6. The only other question which remains is whether the Magistrate's Court erred in giving higher punishment to petitioners 1 and 2. Actually, it was oh the basis of the previous conviction tha8 they were awarded the larger fine of Rs. 100/-. The dishonest intention of petitioners 1 and 2 was clearly brought home in the face of their previous conviction for removal of paddy from the very land. After all, under Section 379 I.P.C. a sentence of imprisonment upto 3 years or fine could have been given. But the Magistrate sentenced them only to a fine of Rs. 100/-. Petitioners 3 and 4 only helped petitioners 1 and 2 and hence they were given only fines amounting to Rs. 50/-. I do not find any reason to interfere with the sentence given to any of the petitioners. The revision petition therefore fails and it is accordingly dismissed.