1. Eight appellants were put on trial after being charged with the commission of offences under Sections 147, 323 and 436 of the IPC by the learned Sessions Judge, Saharsa in Sessions Trial No.140 of 1994. By judgment dated 13.06.2002, appellant Sito Mehta was held guilty of committing offence under Section 436 IPC while the remaining seven appellants were convicted of offences under Sections 147, 323 and 448 of the Penal Code. The appellants were heard on sentence on 22.06.2002 and while Sito Mehta was directed to suffer rigorous imprisonment for six months, appellant nos.2 to 8 were directed to be released on execution of bond of Rs.1,000/-each for keeping peace and being good behaviour for a period of one year. The judgment of conviction and order of sentenced passed by the learned Sessions Judge, Saharsa has been questioned by the appellants by preferring the present appeal.
2. Mahavir Mehta, the informant of the case, gave his fardbeyan before P.W.8 S.M.Zikrullah, Sub-Inspector of Police, Sonbarsa police station stating that the accused persons came armed with lathi while the informant was sitting in the courtyard of his house and started dealing blows with the weapon both to him and his wife P.W.3, Smt. Baby Devi. Appellant Satya Narayan Kamat asked the informant to vacate his house as he had purchased the land from one Hirday Narain Mehta. The informant and his wife (P.W.3) were not ready to obey the commands of Satya Narayan Kamat, whereupon the couple was picked up by the accused persons and thrown out of the house, during which course, a silver hasuli weighing 1/2 K.G and valued at Rs.3,000/- was snatched from the neck of P.W.3 Smt. Baby Devi. Specific allegation was made against appellant Sito Mehta that he set fire to the house of the informant as a result of which it was completely gutted.
3. As regards the reason for committing the offence, it was stated by Mahavir Mehta(not examined) that he had purchased the house along with the land from one Bhubneshwar Mehta who was the maternal uncle of Hirday Narain Mehta, who at the time of purchase of the land was minor and who had been put into the lawful guardianship of the said Bhubneshwar Mehta. Subsequently when Hirday Narain Mehta attained majority, the accused persons claimed having purchased the same land with the house from Hirday Narain Mehta and wanted to resume possession of the land and house forcibly by throwing out the informant and it was for that purposes that the offences had been committed. It was stated that in order to committing the offence and in order to completing their act of ejecting the informant from his possession, the accused persons also had driven away cattle of the informant from the cattle shed and had tethered their own cattles in the shed.
4. On the basis of Ext-2, the fardbeyan of Mahavir Mehta , the FIR of the case(Ext-3) was drawn up by P.W.8 and he proceeded to investigate the same, during which course, he went to the village of occurrence and found P.W.3 Smt. Baby Devi bearing some injuries on her person. He issued a requisition for her examination by the doctor and submission of the medical report. He, thereafter, inspected the place of occurrence and found that it was a small house made of tate and thatch which was completely gutted and five pieces of bamboo were found fixed to the ground as the ramanents of the house. He found ash and other burnt up matter and accordingly, seized the same. He examined the witnesses and after completing the investigation, sent up the accused persons for their trial.
5. The defence of the appellants was that it was a case of false implication on account of chronic land dispute which had been admitted by the witnesses and in fact, the house caught fire on account of any reason and taking advantage of the situation, the informant filed a false case.
6. Eight witnesses were examined by the prosecution and a single defence witness was produced by the appellants in their favour. P.W.1 Ramswaroop Mehta and P.W.2 Chhotkan Ram were stating generally on the facts that the accused persons came and appellant Sito Mehta set fire to the house by lighting matchstick and they had also assaulted the lady (P.W.3). P.W.3 Smt. Baby Devi had also supported the prosecution story and had specified the act of arson against appellant Sito Mehta and of dealing a blow with a lathi to appellant Satya Narayan Kamat. But, what appears from the cross-examination part of P.W.3 some facts have been proved by questioning P.W.8 in his cross-examination to show that the lady had never stated that any particular accused had assaulted on any particular part of her body as was stated by her during her evidence. P.W.3 had stated that she was dealt a blow with lathi by appellant Satya Narayan Kamat on her forehead. P.W.8 stated that such statement had never been made by her. As regards P.Ws.4,5 and 6, they were not supporting the story that it was appellant Sito Mehta who had set the structure which had been claimed by the prosecution as a house, at fire rather they stated that there was hulla in the village that the house of the informant had caught fire and they came and found none present there and that some villagers had assembled there when they saw the house completely gutted. Thus, what appears from the evidence of these three witnesses, i.e., P.Ws.4,5 and 6 is that there could be a probability that the house indeed had caught fire for any particular reason and that the accused had not been seen around by any of the villagers as appears from the evidence of P.Ws.4,5 and 6. So far as the evidence of setting fire to the house by appellant Sito Mehta as given by P.Ws.1,2 and 3 is concerned, they were specifically cross-examined and suggested by the defence that they had not made that statement ever during the investigation and the same fact was corroborated by P.W.8, the investigating officer, during his cross-examination by stating that indeed that particular fact had never been stated by any of three witnesses, i.e., P.Ws.1,2 and 3. As regards the assault on P.W.3 Smt. Baby Devi, the witnesses were uncertain as regards to any particular accused having given a blow or even any particular of the part of body had been hit by any one. This was the evidence upon which, the learned Sessions Jude, Saharsa had passed the judgment of conviction.
7. The learned Additional Public Prosecutor submitted that the dominant intention of the accused persons appears resuming the possession over the disputed property by ousting the informant and his wife. While I was perusing the evidence with the help of the counsel for both sides, I also found the same inference coming out from the evidence of the witnesses who were unanimous in making a statement before the court that the accused persons came and asked the couple to vacate the house and thereafter, picked them up and dragged them out of the house. When one could have considered the provisions of Section 436 of the IPC, one might have found that mischief by fire or explosive substance could be an offence only when the intention is to destroy any building or the act of arson is perpetrated with knowledge that the act was likely to cause destruction of the building which is ordinarily used as a place of human dwelling or a place for custody of the property. If the act of arson is done without the intention or knowledge of destroying the very building which is used either as a human dwelling or for the custody of the property, in that case, it could not be an offence under Section 436 of the IPC. The dominant intention, as rightly pointed out by the learned Public Prosecutor, was to take forcible possession of the property. Witnesses also stated that the accused persons were determined and did acts only in that direction. The statements of witnesses which were made in their examination-in-chief as regards the allegation against the appellant Sito Mehta of setting fire to the house, appears never made by them during investigation. Thus, the very act of setting the structure on fire vanishes on account of absence of that particular fact indicating the commission of the act by any particular accused. The intention and knowledge being absent as appears definitely from the evidence, the conviction of appellant Sito Mehta under Section 436 of the IPC appears completely out of the four walls of the provisions of Section 436 of the IPC. The facts and the evidence did not constitute the offence under Section 436 of the IPC.
8. So far as the commission of offences under Sections 147 or 448 is concerned, on a bare perusal of the definition of unlawful assembly as contained in Section 141 IPC, it appears that if there is common object of an unlawful assembly of five or more persons and that common object is any of the those are stated in clauses firstly to fifthly, then only it could be unlawful assembly. Here in the present case, the intention of taking possession over the piece of land or the property does not fall in the category of any of the clauses from firstly to fifthly as appears from Section 141 of the Penal Code. In that view, there was complete absence of the common object for the assemblage of the accused persons who were numbering eight or nine. Mere number of persons is never the unlawful assembly. The assemblage of five or more person becomes unlawful only when it has as its common object, one of the facts or elements which are indicated in Section 141 of the IPC. That not appearing the case from the evidence, the conviction of the appellants under Section 147 of the IPC could not be said to be lawful. Likewise, an offence of criminal trespass envisages as may appear from the definition of the offence from Section 441 of the IPC that when one had entered into or upon the property in the possession of another with intention to commit an offence, he ought to intimidate, cause annoyance to the person in possession of such property or having unlawfully entered into or upon such property, had unlawfully remained over that property with similar intentions of intimidation, insulting or annoying the persons, then could be committed the offence of criminal trespass. As may appear from the definition of criminal trespass, the prosecution in such a case is required to establish that the property was in possession of another and that the accused did not have any reason to go over or enter into or stay over the property. In criminal law, the element of bonafide belief, when it comes to a property dispute, is one element which plays a very vital law. If an accused under his bonafide belief goes over the property that he has right to enter into that property, then the intention of committing the offence or insulting or intimidating is completely lacking and the offence could not be said to be committed. This is one reason, which appears missed by the learned Sessions Judge, Saharsa from the facts of the case.
9. I have already noted that the evidence on assault being given to P.W.3 is too omnibus and non-specific to raise any inference as to who could have done it. All accused persons have been convicted under Section 323 of the IPC. But there is no evidence against any of them that indeed he could have given the below. The evidence being as general and non-specific and as misleading as appears from the record, in my opinion, it was not a case in which appellants should have been convicted of any offence.
10. In the result, the appeal is allowed. The appellants are acquitted of the charges they had been found guilty of by setting aside the judgment of conviction and order of sentence. All the appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds.
11. Sri Ajay Mishra, Advocate has assisted the Court as Amicus Curiae and, as such, he is entitled to one fee of hearing for assisting the Court in the present appeal.
12. Let the fee be paid to him by the Patna High Court Legal Services Committee and for that purposes, let the first and last pages of this judgment be made over to him.