(1.) This case is a tempest in a tea pot. The petitioner has been convicted under section 352 of the Indian Penal Code and sentenced to pay a fine of Rs. 200/-. The complainant- opposite party Loboram is the cousin of the accused Hem Kanta. It appears that the complainant- opposite party is rich and could prosecute the case for the last 10 years. In this court as well the complainant has appeared through his lawyer. I have just said the complainant is rich it is not merely a guess work based on the conduct of the complainant to prosecute the trial. The accused was a tenant under the complainant in respect of 6 Bighas 1 Katha 7 lechas of land. So, the fight is between the landlord and tenant and between the cousins. In fitness of thing the matter should have been settled out of court. Over 10 years have rolled by since the date of the incident, perhaps by this time the parties have patched up all the differences. If not, it is highly desirable that they should settle up all their disputations between them justly and equitably. The parties have learnt the lesson of indulging in litigation. They have spent perhaps much more than the price of the land the subject matter of the case.
(2.) Shortly put, the prosecution case is that the complainant was the landlord in respect of 6 bighas 1 katha and 7 lechas of land covered by dag No, 174 of Periodic Patta No. 66 of village Chengaliati gaon in Baligaon Mouza. In 1974 the plaintiff-complainant instituted a suit for declaration of title and for khas possession of the land upon evicting the accused-defendant the suit was decreed on compromise in June, 1975. The plaintiff complainant got 3 bighas I katha 7 lechas land on the northern side of the suit land and the accused got the rest, namely, 3 bighas of land. However, the complainant has stated that the accused did not allow him to take possession of 3 bighas 1 kalha 7 lechas of land. There was no firm and precise boundary of the lands allotted to the parties and that might have created the confusion between the parties. Failing to obtain possession the plaintiff- complainant filed an application and obtained an ex-parte order from the Civil Court, which deputed a mandal to demarcate the boundary. It is alleged that the mandal demarcated the land but it was done without notice and behind the back of the accused. On 21.1.1976 when the complainant and his party went to plough, admittedly for the first time and commenced ploughing the accused, his son and others came and prevented them from ploughing, used show of force and when the complainant and his companion had left one of the accused Golap struck a dao blow on the hoe left behind by the complainant. It is alleged that the accused persons threw sticks and pointed weapons towards the complainant while the latter was fleeing from the scene of the occurrence. The accused was charged under sections 447/420/352. I.P.C. along with a few other accused. All the accused have been acquitted by the trial Court in respect of the charges under sections 420 (Cheating) and 447 (Criminal trespass) I.P.C, Admittedly, there was no appeal against the order of acquittal. Learned trial court affirmatively held that there was no material to reach the conclusion that the accused persons had committed criminal trespass upon the land of the complainant. However, the accused and his son were convicted under section 352, I.P.C. and sentenced the petitioner to suffer imprisonment for one month and to pay a fine of RI. 200/- in default, to suffer simple imprisonment for 15 days more while convicting the accused of the charge under section 352 I.P.C. the trial Court observed: The land might still be in actual physical possession of the accused but keeping in mind of the compromise made in the Court of Munsiff, the accused should have allowed the complainant to plough in the land. (Emphasis added) It is thus seen that the trial court reached the conclusion that the land might have bee in possession of the accused persons but he should have honoured the compromise and allowed the complainant to plough the land. The accused preferred an appeal to the learned Sessions Judge who maintained the conviction but modified the sentence and reduced the sentence to fine of Rs. 200/-.
(3.) The firm prosecution case was that the accused had trespassed upon the land of the complainant, threw some weapons towards the complainant party and thereby committed an offence of assault while committing the crime of criminal trespass. As alluded to all the accused persons were acquitted of the charge under section 447 I.P.C. by the trial Court. Under these circumstances it must be held that the complainant had failed to establish the case of criminal trespass. Thus it can not be said that the accused had committed offence of assault while trespassing upon the land of the complainant. The charge of assault was linked up with the offence of criminal trespass. The allegations are integrated and inter-linked with each other. if the charge under section 447 had failed it is to be considered whether the case of assault could stand independently in view of the facts and circumstances of the case.