ASWINI KUMAR GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS rule is directed against the conviction of the two petitioners under Section 447, Indian Penal Code, and the sentence of a fine of Rs. 50/ - each in default rigorous imprisonment for three weeks passed on them thereunder. The two petitioners were also convicted under Section 426/109, Indian Penal Code and under Section 426, Indian Penal Code respectively and were sentenced to pay a fine of Rs. 100/. each in default to rigorous imprisonment for three weeks. C.S. plot No. 4043 of mouza Kasba belongs to the mother of P.W. 1 - the informant in the case. The prosecution case is that on March 2, 1963 petitioner No. 1 with the help of petitioner No. 2 and some other persons dug earth from that plot causing damage to the land to the extent of RS. 2,000/.

(2.) THE defence was a denial that any earth was cut or removed from the land in question and a second string of the defence was that there was a contract for sale of the land by P.W. 1's mother to petitioner No. 1 and that the cutting of the earth, if any, was in exercise of a bona fide claim of right.

(3.) MR . Mitra, the learned Advocate appearing in support of the rule contended first that the procedure for trial that was followed by the learned Magistrate was wholly erroneous. According to him, the procedure that ought to have been followed was the one prescribed in Section 251A of the Code of Criminal Procedure. His second contention was that on the evidence of P.W. 1 herself in cross -examination to the effect that at the time of the occurrence petitioner No. 1 was standing on his own land nearby, the conviction of petitioner No. 1 under Section 447, Indian Penal Code at any rate was bad in law. Thirdly, it was contended that the land not being, on the prosecution evidence itself, in the actual physical possession of P.W. 1 and/or her mother, the conviction under Section 447, Indian Penal Code was not maintainable. Another contention of Mr. Mitra was that there being no evidence that petitioner No. 1 had abetted the commission of mischief, his conviction under Sections 426/109, Indian Penal Code was not maintainable. Lastly, it was contended that the evidence on record would not justify an inference that any mischief in law had been committed.