(1.) The petitioners impugn their conviction under S.447/379 IPC and sentence of 10 (ten) days' simple imprisonment and a fine of Rs. 50/- each, in default simple imprisonment for 15 more days. They were prosecuted for their alleged trespassing upon and reaping paddy away from the field of complainant-opposite party No.2 on 23rd Aug. 1976. Tried in warrant procedure, they were charged under Ss.447 and 379 IPC to which they pleaded not guilty stating that they had bona fide claim of right. The prosecution examined six witnesses and submitted some documents while the defence did not examine any witness but submitted some documents in support of bona fide claim of right. On the basis of the evidence on record the trial court convicted the petitioners, as above and their appeal was rejected by the learned Sessions Judge holding that the learned Magistrate elaborately discussed the facts and law and was fully justified in holding the petitioners guilty for the offence charged with and that the punishment imposed has been very liberal leaving no scope for interference.
(2.) Mr. T.S. Deka, the learned counsel for the petitioner submits that the complainant himself, as P.W. 1, having admitted as to the pendency of a civil suit for the same land instituted by his wife against the 1st and 2nd petitioners. Siraj Ali and Rustom Ali, and P.W. 3 having deposed that the petitioners were in possession and P.W. 6 having deposed that the petitioners were seen plouging the land before the Ahu paddy was broadcast, the learned courts below ought to have accepted the petitioners' plea of bona fide claim of right; and that there was discrepancy about the type of paddy alleged to have been grown by the complainant opposite party and that which was seized from the possession of the petitioners. While the complainant claims to have grown Ekra variety of Ahu, the 80 'dangaries' seized contained both Ekara and Dubrichinga varieties. Mr. K. Sarma, the learned counsel for the complainant-opposite party, submits that there was no semblance of any right on the part of the petitioners to the land wherefrom paddy was reaped away and that the discrepancy in the varieties of paddy would not be material for the purpose of S.379 IPC.
(3.) P.W. 1 in his examination-in-Chief deposed that the land in dispute was in the name of his wife as pattadar, being patta No.22, Dag No.561 and that he had been in possession since 16 years back. He produced Ext. I, certified copy of the Jamabandi, which substantiated his statement. He further deposed that the occurrence took place on 6th and 7th Baihag. During cross-examination before charge he also stated that he filed another civil suit regarding the same land against the accused petitioners. During cross-examination after charge he stated that he instituted another proceeding under S.107 Cr.P.C. against the petitioners and that the order was not in his favour. He admitted that the land wherefrom paddy was reaped away was purchased from one Wahed in 1962 and that the accused petitioner, Siraj cultivated the land on the western border thereof. From the Judgment of Title Suit No.13 of 1976; Giribala Patowary v. Siraj Ali and another, which is at page 79 of the records, it is seen that the suit was for declaration of title and permanent injunction in respect of Dag. No.561 covered by N.K. Patta No.22 of village Chatribari. It was alleged there that on 29-3-76 the defendants (the present petitioners) illegally entered into that land and attempted to plough over the same and that the defendants threatened the plaintiff's possession and so she prayed for declaration of permanent injunction. The defendants pleaded, inter alia, that the suit land, along with some other lands, originally belonged to one Khedla Mahajan and that defendant No.1 and his brother Late Ahiruddin purchased the same in 1947. That land was sold to one Ajan Ali in 1947 but it was repurchased by them in 1952 and after bringing partition case No.54 of 51-52 they were possessing the same. It was further alleged that the plaintiff's husband (present complainant-opposite party No.2) who was a Lot Mandal of that village collusively and surreptitiously got her name mutated in the revenue record and wanted to take forcible possession of the suit land. They did not admit that the plaintiff had any right, title and interest over the land in suit. That suit was decreed on 2-7-77 holding that "(1) plaintiff has got right, title and interest and she be put in khas possession in the land in suit, describedin the schedule of the plaint by evicting the defendants. (2) Defendants be restrained from interfering with the possession of the plaintiff by issuing perpetual injunction." It appears in the same Title Suit NO.13/76 a temporary injunction was issued on 7-4-76 restraining the defendants from entering into the suit land and to show cause why ad interim injunction should not be made absolute. In fact the decree dt. 2-7-77, that the plaintiff (complainant-opposite party No.2's wife) be put in khas possession of the suit land by evicting the defendants, would indicate that the defendants (Present petitioners) were in possession and whether that was in violation of the injunction order dt. 7-4-76 would, of course, be a different matter. P.W. 1's case was that he grew the paddy on 6th and 7th Baihag which would be in the month of April. Thus it cannot be claimed that the present petitioners were prevented from claiming right to the suit land which is the same as the land wherefrom they allegedly reaped away paddy. The fact that they ultimately lost in the suit would not be material for the purpose of deciding whether they had any bona fide claim of right.