JUDGMENT : Barman, C.J. - The five Petitioners were convicted on a charge of alleged theft of paddy crops from certain plots of land stated to be adjacent to the land of the accused persons and sentenced to pay a fine of Rs. 5/- each; in default, to undergo simple imprisonment for seven days each. 2. The prosecution case is that on November 24, 1963 at 6 A.M. the accused-Petitioners removed paddy crops from certain lands being plots Nos. 23, 246 and 247 stated to be adjecent to the lands of the accused Petitioners on information lodged by the complainant (P.W. 1) at the local police station the same day at 7 A.M. In due course, after investigation, the Petitioners-along with others who were acquitted-were charged u/s 379 Indian Penal Code and were tried by the Magistrate, First Class Titllagarh, who convicted and sentenced them as aforesaid. 3. In support of the prosecution seven witnesses were examined, including P.W. 5 as an eyewitness. The defence is one of bonafide claim of right; they claim to have been in cultivating possession of the lands as hereditary trustees of a deity, relying on certain entries in the record-of-rights. In support of the defence case two witnesses were examined. 4. The reasoning on which the learned Magistrate convicted the accused-Petitioners as stated in his judgment is this: Even if the evidence of other P.Ws. may not be relied upon as they are inconsistent, the evidence of P.W. 5 an eye-witness cannot be brushed aside. Therefore I am driven to the conclusion on perusal of R.O.R. and consideration of the statement of P.W. 5 that the accused persons have no legal right upon the land in question and are guilty u/s 379 Indian Penal Code for having reaped and removed the paddy without authority. 5. The record-of-rights purports to show that there was an entry in respect of the lands in the name of the grandfather of the accused-Petitioners in 1909 and in the name of the father of the accused-Petitioners in 1919. 5. The record-of-rights purports to show that there was an entry in respect of the lands in the name of the grandfather of the accused-Petitioners in 1909 and in the name of the father of the accused-Petitioners in 1919. As to how there happend to be a subsequent change in the entry in the record-of-rights on the basis of which the alleged bonafide claim of right of the accused-Petitioners in defence is challenged on behalf of the complainant, the defense explanation is that in the past there was some quarrel and the accused persons having been children with no means and not having any knowledge of the actual position, the change was made in the record-of-rights without the knowledge of the accused persons; the basis of their bona fide claim of right is that their physical possession was not disturbed and they bona fide believed that they had a legal right to the lands in question. 6. It is settled law that where a bona fide claim of right exists, it could be a good defence to a prosecution for theft. An act does not amount to theft unless there be not only no legal right but no appearance or colour of legal right. If there be in the accused person any fair pretence of property or right or if it be brought into doubt at all the Court will direct an acquittal. The ordinary rule that mensrea may exist even with an honest in ignorance of law is sometimes not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised it is mainly a question of fact whether the plea exists or not- Suvvari Sanyasi Apparao and Another Vs. Boddepalli Lakshminarayana and Another, and Chandi Kumar Das Karmarkar and Another Vs. Abanidhar Roy, 7. In the present case, the learned Magistrate does not appear to have kept in view the settled position of law as stated above. Boddepalli Lakshminarayana and Another, and Chandi Kumar Das Karmarkar and Another Vs. Abanidhar Roy, 7. In the present case, the learned Magistrate does not appear to have kept in view the settled position of law as stated above. His attention was perhaps not drawn to the implications of the entries in the record-of-rights and the evidence of the complainant (P.W. 1) himself that even as late as June 24, 1964, five of the accused persons had sown paddy purporting to show that they were continuing their cultivating possession over the lands in question even as late as 7 months after the date of the incident, namely November, 1968. This seems to confirm their bona fide claim of right with continuing cultivating possession in respect of the lands from which they reaped and removed paddy. 8. In this view of the case the order of conviction and sentence passed by the learned Magistrate is set aside. This criminal revision is accordingly allowed. Final Result : Allowed