EMPEROR Vs. SAHADEO KARAN SINGH

JUDGEMENT

(1.) These two criminal revision applications have been heard together. Lachhman the petitioner in Criminal Revision No. 464, is a servant of Sahadeo Karan, the petitioner in Criminal Revision No. 440. Sahadeo Karan has had some litigation with one Korban and his wife against whom he brought a title suit, obtained a decree for possession and took delivery of possession in 1930. Thereafter the son of Korban whose name is Usman claimed that, that property was his by reason of a gift from his parents. He brought a title suit for a declaration which was given to him by the Court on 17 February 1935. The suit was only declaratory, but in fact an order of delivery of possession was given by the Court in execution and possession was delivered on 11 August 1935 over the property which was the subject matter of the suit. That did not entitle Usman to eject Sahadeo Karan from the whole of his interest in the village because Sahadeo was a one-anna co-sharer in the village from before. The writ of delivery of possession does not mention the kucheri of Sahadeo Karan and the peon did not give possession over the kucheri.

(2.) Now, the complaint of Lachhman which is alleged to be false was a complaint presented on 22 October, 1935. He alleged that during the Dasarah holidays he had been to his home, that he had returned on 18th, October and found that between 12 and 18 Usman and others had raided the kucheri of his master Sahadeo Karan, had removed materials such as door-frames, leaves and roofing materials and had also taken articles kept inside the kucheri such as utensils and grain; that he himself had seen some of the rafters or beams at the house of Korban, father of Usman; that he had informed his master Sahadeo Karan and been instructed by him to file the complaint. The Sub-divisional Officer referred the complaint to the Sub-Inspector of Police for local investigation and the Sub- Inspector reported that the case appeared to be false being apparently under the impression that by virtue of the delivery of possession Usman was entitled to take and had taken possession of the kucheri. Thereafter a Magistrate also held a local inquiry and he too came to the conclusion that Lachhman's complaint could not be supported. After the dismissal of the complaint and after calling on the petitioners to show cause against their prosecution, a complaint under Section 476, Criminal P.C., was presented for the prosecution of the petitioners under Secs.211 and 211 read with Section 109 respectively. They have been convicted and have appealed without success.

(3.) The main point taken in revision is that the complaint being as the appellate Court has held "partly false and partly true," there ought not to have been a prosecution and neither of the petitioners ought to have been convicted. This ground applies to both the petitioners. For Sahadeo Karan it is further contended that there was no evidence that he had abetted the making of a complaint by Lachhman Lall. To say that a criminal prosecution cannot stand in respect of a complaint which is partly false and partly true is putting the matter a little too broadly. The law is stated in Giridhari Naik V/s. Empress 5 CWN 727. In this case the learned Judges after reciting the provisions of Section 211 say that it is difficult to lay down any precise rule. Each case must depend upon its own circumstances and what is to be considered is the nature of the complaint or charge made by the accused; in other words, whether the complaint is substantially true and what is fake is a mere fringe to the complaint or whether the substantial complaint is false and what is true is a mere fringe, or in other words a mere accessory circumstance. In the present case the charge is of theft and removal of the materials of the kucheri and the contents of the kucheri. The answer that Usman and his men were entitled to remove the materials of the kucheri by virtue of the dakhal-dehani has broken down. It has been found that the dakhal-dehani did not give possession of the kucheri and did not authorize Usman to do anything to the kucheri. It is manifest therefore that Usman and his men, when they dismantled the kucheri and removed the materials, committed offences of mischief and theft. This is so whether or no there were valuable properties kept inside the kucheri and whether or not theft of such properties also took place. Some of the witnesses for the prosecution in the present trial have attempted to maintain that the removal of the materials of the kucheri took place at the time of the dakhal-dehani; but the prosecution evidence, I must say, is in considerable confusion as to the exact date of this alleged removal and the Courts below did not appear to have accepted Usman's case that the removal was at the time of the dakhal-dehani, though they were of opinion that the removal took place sometime during August and not in October.