HARIHAR NARAIN SINGH Vs. BANKERY SINGH

JUDGEMENT

(1.) This is an application to revise the judgment of a first class Magistrate convicting the 7 petitioners under Section 379, Indian Penal Code for theft of the paddy crop of plots Nos. 75 and 77 in khata No. 53 of village Mahabalipur Chak in the possession of Bankey Singh. The petitioners were each sentenced to pay a fine of Rs. 50, in default to suffer one months imprisonment. The Sessions Judge declined in revision to make a reference to this Court. It was, the prosecution case that the petitioners who are of the number of landlords in the village brought a mob of about 200 persons to the field and overawed the complainant who-was afraid to remonstrate. The substantial defence was that the field was in the possession of the first three petitioners of whom Harihar and Beni are sons of Saudagar deceased and Baij Nath is the son of Beni. It was not admitted that the crop was cut on the date of the alleged occurrence and the remaining petitioners 4-7 denied that they had any concern with the land or had taken any part in the cutting and removal.

(2.) As regards the occurrence, it is said, that g the evidence lacks definiteness as to any overt act of cutting or any specific order being given by any individual accused; but there was sufficient evidence which the Magistrate accepted as to the presence of the 7 petitioners who were standing by and were supervising the cutting and removal of the crop by the large party whom they had brought with them. If the removal amounted to an offence, I think the Magistrate's finding must be accepted as sufficiently establishing the participation of each of the accused persons who were by their presence encouraging the mob in the act. The Magistrate was entitled on the face of the evidence to regard them all as participants and not disinterested bystanders.

(3.) It remains to consider the question of possession as to which it is contended that the finding of the Magistrate cannot be supported. The case for the prosecution was that the field was fakirana land of a raiyat named Hira Lohar in whose name it stands recorded in the record of rights finally published in 1910 and that the said Hira Lohar remained in possession till 1941 when he sold the two fields to Bankey Singh by a registered sale deed Ex. 1. The defence was that the entry of the name of Hira Lohar was incorrect, that this fakirana land was purchased as far back as 1888 by Saudagar Singh the father of the first two petitioners and has all along been in their possession. They have their names entered in Register D as being in possession of rent-free fakirana estate tauji No. 2822. This rent-free tauji register was prepared subsequent to the record of rights. That being so, it was for the prosecution to prove not only that Hira Lohar was in possession in 1910, but that his possession continued and that he was able to put the complainant in possession in 1941. For this Hira Lohar himself would have boen the best witness, but he has not been called. There are no papers showing payment either of cess or of canal dues by Hira in this 30 year interval. The prosecution produces Exs. 4 and 5 challans for cess in the name of Bankey Singh dated November 1941 a June, 1942.