Makru Lohar vs Ganga Sahu

Das, J.—The petitioner, Makru Lohar, has been found guilty under Sections 379 and 323, Penal Code. Under the former section, he has been sentenced to rigorous imprisonment for one month, and under the latter to a fine of Rs. 25, or, in default, rigorous imprisonment for one month. The prosecution case was that on 30-10-1944, Makru Lohar had removed the paddy crop from plot No. 781 in holding 70 in village Ghama. It was further alleged that the petitioner had assaulted the complainant, Ganga Sahu, on the same day when the latter was returning from the thana. It appears that the petitioner, Makru Lohar, admitted having removed the paddy from plot No. 781. Makru Lohar''s defence was that he was in possession of the plot and had grown the crops which he had removed. He, therefore, set up a plea of bona fide claim of right.

Two main points have been urged before me on behalf of the petitioner. Firstly, it is contended that the trial of the petitioner on two separate charges, one u/s 379 and the other u/s 323, Penal Code, was illegal. Section 233, Criminal P.C., lays down that for every distinct offence there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 234, 235, 236 and 239. Sections 234 and 236, obviously, do not apply to the present case. The only section which requires consideration is Section 235, namely, if the two acts which were the subject-matter of the two charges, one u/s 379, Penal Code, and the other u/s 323, Penal Code, were so connected together as to form the same transaction. In my opinion, the two acts were not so connected as to form the same transaction. The theft and the assault did not take place at the same time, nor were they inspired by the same common purpose. The theft took place earlier in the day, whereas the assault took place while the complainant was returning from the thana. No comprehensive formula of universal application can be framed regarding the question whether two or more acts constitute the same transaction: the circumstances which must bear on its determination in each individual case are proximity of time, unity or proximity of place, continuity of action and community of purpose or design. The mere fact that two offences are committed at the same time or place is neither necessary nor decisive as an indication of their being so connected as to form the same transaction, nor are the offences so regarded merely because they may be inspired by one and the same general object. Each case has to be considered on its own facts. As I have said above, the theft and the assault were two distinct and separate acts in the present case; they did not take place at the same time, nor at the same place nor were they inspired by a community of purpose. In such circumstances the trial of the petitioner on two distinct offences was clearly in violation of the provisions of Section 233, Criminal P.C.

If the case had rested merely on the defect pointed out above, it would have been necessary for me to remand the case for a retrial. The case, however, does not rest there. The Court of appeal below appears to have convicted the petitioner of theft, mainly on a decision of the question of title, without deciding which particular party was in possession of the plot in question, and which party had grown the crops thereon. In order to appreciate this point, it is necessary to give a short history of the plot in dispute, namely plot No. 781. It appears that this plot was recorded in the record-of-rights in the names of two persons, Ramdayal Lohar and Dadhu Lohar. Dadhn Lohar is the son of one Budhu Lohar. Some time in 1935 the Maharaja Bahadur of Chota Nagpur appears to have purchased the land in question in execution of a rent-decree passed in Rent Suit No. 293 of 1934-35, in which the Maharaja Bahadur was the plaintiff and the defendants were Ramdayal Lohar and one Mt. Debi, alleged to be the wife of Budhu Lohar. The Maharaja Bahadur of Chota Nagpur obtained delivery of possession on 16-12-1935. Then the land was settled with one Bhawani some time in 1941. Bishu Sahu, brother of the complainant Ganga Sahu, took zarpeshgi of the land from Bhawani by a registered document, dated 10-11-1942. The prosecution case was that the complainant, Ganga Sahu, was in possession of the land since the date of the aforesaid zarpeshgi. The defence of the petitioner was that he had purchased the land from the son of Ramdayal and Dadhu Lohar some time in 1943, i.e. on 15-1-1943. Immediately after the zarpeshgi there was a criminal case about the land in which the complainant was unsuccessful. The defence of the petitioner was that he was in possession of the land as a result of the purchase in 1943 and had grown the crops.

The Court of appeal below appears to have proceeded on the footing that the rent sale in favour of the Maharaja Bahadur extinguished the title of the recorded tenants and thereafter the recorded tenants or then? successors-in-interest could not claim to be in possession of the land The Court of appeal below does not appear to have given any clear finding as to who was in possession of the land and who had grown the crops, It has been pointed out by learned Counsel for the petitioner that the decree in favour of the Maharaja Bahadur of Chota Nagpur may not have the force of a rent-decree inasmuch as one of the recorded tenants was not made a party in the suit. It is, however, unnecessary to decide the question of title in this case. It is clear to me that the petitioner cannot be found guilty of theft in this case unless it is first found that the claim, which he put forward, was a colourable pretence. The Court of appeal below has come to no finding on the question of possession, though it appears to have thought that the crops were grown by the petitioner himself If the crops were grown by the petitioner himself, then it cannot be said, in the circumstances of the present case, that the removal of the crops by him was a dishonest act. I am of the view that the petitioner is protected by a bona fide claim of right, and the claim put forward was an honest one and was not a mere colourable pretence. In this view of the matter, the conviction of the petitioner for the offence of theft cannot be sustained.

Even as to the assault, there is some discrepancy as to whether the complainant received one blow or more than one blow. In any view of the matter, the petitioner could not have been tried for the two offences of theft and assault in the same trial. The main case of the complainant was the case of theft, and that case must fail on the ground that the crops had been grown by the petitioner himself and the removal of the crops by the petitioner did not amount to theft. The result, therefore, is that the application succeeds and is allowed. The conviction and sentence passed against the petitioner are set aside. The fine, if paid, should be refunded to the petitioner. The petitioner, who is on bail, will be discharged from bail.