A person in rightful possession of land has the right to dispossess or throw out a trespasser and to remove any encroachments made by the trespasser.

The petitioners have projected this criminal revision against their conviction u/S. 427/34 I.P.C. passed by the Assistant Sessions Judge in Sessions Case No. 10 (S-J) 72 and upheld on appeal by the learned Sessions Judge, Jorhat in Criminal Appeal No. 18 (1) of 1976 sentencing them to suffer R. I. for one week only.

2. Grave and serious allegations were brought against the petitioners and four others to the effect that they had set fire to a shack, put up by the first informant Purna, forming an unlawful assembly with deadly weapons and entering into the paddy field of Purna. Upon investigation, police submitted charge-sheet against the accused u/s. 147/436 I. P.C. However, the petitioners along with four others were committed by the Magistrate to stand the trial u/s. 148/149/436 I. P. C read with Section 34. The accused stood their trial and were charged by the learned Sessions Judge u/s. 148/34 149/ 436/34 I. P. C.

3. The case of the prosecution is that Purna is the owner of the land and has title to it. There were as many as three proceedings u/s. 145 Cr. P. C. since 1966 and in all these proceedings the possession of the land was declared in favour of the accused. Purna was also a party in one of the proceedings against the accused. It is indubitable that in the proceedings the Magistrate determined possession in favour of the accused and declared that the accused were entitled to possession of the present land until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. Puma claims that notwithstanding such declaration of possession and prohibitory order passed by the Magistrate he merrily continued to possess the land in violation of lawful order passed by the Courts, ploughed the land (subject matter of the proceeding) and constructed the shanty valued hardly at Rs. 100/-. He alleged that on 11-9-1972 at 6 p.m. in presence of all and sundry the accused, forming an unlawful assembly set his shanty on fire.

4. The Assistant Sessions Judge completely disbelieved the prosecution case as to rioting, arson and unlawful assembly but convicted the petitioners in respect of a charge u/s. 323 read with Section 34 I. P. C. for driving out Purna by force from the land. The Assistant Sessions Judge also convicted the accused u/s. 427/34 I. P. C. for destroying the hut. The petitioners preferred an appeal. The learned Sessions Judge has acquitted the petitioners of the charges u/s. 323/34 I. P. C. holding that no hurt was caused to Purna and, no charge in respect thereof had been framed against the petitioners by the Assistant Sessions Judge. The learned Sessions Judge further held : "At best offence of assault as understood in the Penal Code might have been committed by the two appellants if the fact of driving out Purna forcibly from the land be true. But as the ejahar is completely silent about this aspect of the matter, I have not thought it fit to convict the two appellants under any Section of the Penal Code for this allegation against them." Therefore, the learned Sessions Judge disbelieved the story of forcibly driving out Purna from the land in question. Further the learned Sessions Judge held: "The trial Court therefore took the view that when fire had been set there was no house as such but only the debris of the house and as such no human dwelling was burnt". Therefore, the learned Sessions Judge also believed that there was no house on the land and what were burnt were only some debris. The learned Sessions Judge completely disbelieved the testimony of P. Ws. 3 & 4. The learned Sessions Judge believed that P. W. 5 did not see who had set fire to the house. It may be stated here that the alleged demolition of the house was prior to the alleged act of setting the debris on fire. As such, the conclusions arrived at by the learned Sessions Judge completely destroys the evidence of P. W. 5 as to his statement regarding demolition of the house. Further this witness