Jainath @ Jainu Ohdar vs Emperor

Ross, J.—The petitioner Jainath Ohdar and four others were charged with rioting, theft and causing grievous hurt. The case for the prosecution was that they were forcibly cutting the paddy of a certain field in the possession of the complainant. The trial Court convicted them of rioting and of grievous hurt and also u/s 379 of the Indian Penal Code. The learned Judicial Commissioner found that the complainant had not proved his possession.

The facts regarding possession are these. The field is brahmottar land belonging to one Chirangu Misser and he had given this field in zerpeshgi to the accused Kangali for five years in consideration of Rs. 86 with a stipulation that, if the zerpeshgi was not re-paid, the tenant would retain possession of the land until the repayment was made. During the term of the zerpeshgi lease, Chirangu Misser gave another zerpeshgi lease to the brother of the complainant. The learned Judicial Commissioner found that it had not been proved that Kangali had been paid off and that doubt was thrown on the evidence of the prosecution regarding possession. He, therefore, set aside the conviction under Sections 147 and 379, but he upheld the conviction of Jainath Ohdar u/s 325 on the ground that although the accused party had at least a bona fide claim of right to the field and it did not seem certain that Bhonra ever had possession, yet in order to establish the right of private defence, the accused must show affirmatively their own possession. Now, there is no doubt that Kangali had possession for several years under the zerpeshgi lease. As that zerpeshgi was never paid off, possession must be presumed to have continued; and the learned Judicial Commissioner has not found that that possession was determined by possession actually recovered by the complainant. It, therefore, follows that the party of the accused were in possession and, consequently, Jainath Ohdar was protected by the right of private defence.

The application must be allowed, the conviction and sentence set aside and the petitioner acquitted and released from bail. The fine, if paid, will be refunded.