ABDUL NUR LASKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) Against the order of conviction under S. 448 of the Penal Code and sentence of fine of Rs. 100/- in default to suffer R. I. for one month, the petitioner has preferred the Criminal revision.

(2.) The prosecution case is that on Mar. 7, 1976 at about 7 p.m. the accused took shelter in the out-house of the first informant but thereafter did not leave the house. The first informant convened meeting of the local people to decide the dispute but the accused did not vacate the land. Accordingly, the first informant lodged a First Information Report. The accused was charged under Ss. 448 and 426 of the Penal Code. However, he was acquitted of the charge under S. 426 of the I.P .C., but convicted under S. 448 by Shri H. M. Barkakati, Sub-divisional Judicial Magistrate, 1st Class at Hailakandi. The first informant examined himself as P.W.I and stated that on 7-3-1976 the accused with his leave took shelter for the night but unlawfully remained there. The accused did not leave the out-house. The local people were called to decide the question the last sitting was held on 16-3-1976 wherein they decided that the accused should leave the house of the first informant. However, he did not leave the place. The plea of the accused was that by virtue of Ext. A, an unregistered deed of sale he entered upon possession of the house and the land. He had paid Rs. 600/- and obtained possession, the first informant, the vendor was to get the deed registered in terms of the agreement, marked Ext. A. It appears clear that there is a written deed proved as Ext. 'A' wherein at 2 places the first informant put his signatures. It clearly shows that the disputed land was sold to the accused and another. However, a registered deed was to be executed in due course. There was a clear declaration that by virtue of the deed marked Ext. ' A' the accused and another could use, occupy and/or possess the property. The first informant has denied that he ever sold the land and the house to the accused. However, D. Ws. 1 and 2 proved the execution of the deed by the parties. D. W. I stated that Ext. A (1) was read over to the first informant. I have perused Ext. A (1), the signature of the first informant in the ejahar and find that the signatures marked A(1) and A(2) appear to be the same with that put by the first informant in the Ejahar. It may be stated here that Ext. A was seized by the police in connection with the investigation of the case in question, vide seizure list marked Ext. 2. As such, the prosecution was fully aware as to the existence of the document and the contents thereof. However, the prosecution did not produce any evidence to show that the Ext. A was not executed by the first informant and/or the contents thereof were false or incorrect. From the evidence of the investigating officer it appears that the document Ext. A was seized during the investigation of the case. Ext. A contains the signature of the first informant at 2 places to support the fact that it was executed by the First Informant. The deed itself shows that on receipt of consideration of Rs.600/- the first informant handed over possession of the land and house and agreed to get the deed duly registered in due course. It appears clear that Ext. A, the document, was not produced for the first time by the accused person from his own pocket during the course of trial but it had been seized by the police in connection with the investigation of the case. As such, the plea of the accused is based on documentary evidence marked Ext. A. His case is that the entry upon the land and/or the house was made under bona fide claim of right. The claim was well founded in law, claimed the accused. His real or dominant as well as subsidiary intent was based on the document marked Ext. A. He claimed that he was a bona fide purchaser of the land for value and on that right he was occupying the property. He had no criminal intent.

(3.) On behalf of the prosecution 8 witnesses were examined although the document marked Ext. A was seized in connection with the police investigation no body including the first informant ever asserted that the land described in Ext. A was not the land in dispute in the instant case. On the other hand the first informant denied that he had any agreement to sell the land referred in Ext. A. Admittedly, the accused was in possession of the house since 7-3-1976 till the ejahar was lodged. There is no evidence to show that on any subsequent point of time the accused was dispossessed from the land. As such the accused was in possession of the property at all relevant time. He claims that his right of possession of the land was based on Ext. A. The prosecution did not adduce any evidence to rebut the claim of the accused.