JUDGMENT : S. Acharya, J. - This is an appeal u/s 417 (3), Code of Criminal Procedure against the judgment of acquittal dated 25-2-1970 passed in Criminal Appeal No. 161-C of 1969 by the Assistant Sessions Judge, Kendrapara. 2. The complainant's case in short is that she was in peaceful possession, through her Bhag tenant p.w. 2, of 13 decimals of land bearing plot No. 808/1618 in Khata No. 161 in village Talagan. The two accused persons (Respondents herein) on 22-9-1967 cut and removed paddy crops from the said land worth Rs. 60/-. 3. Both the accused persons pleaded not guilty to the charge u/s 379, Indian Penal Code framed against them. Accused Pravakar has further pleaded that the land from which he cut and removed paddy on the date of occurrence belongs to him and he is all through in possession of the same. Accused Anam Naik completely denied his association with the occurrence in any manner. 4. The accused persons were convicted in the trial Court, but the appellate Court acquitted them on the findings that the complainant has not been able to prove beyond reasonable doubt that she had raised the crop in question on the entire plot comprising an area of 13 decimals, and that on the facts and circumstances disclosed by the evidence on record a case of bona fide claim of right to property is made out in favour of the accused persons. 5. Admittedly the parties belong to two branches of one common ancestor and that each of the branches had eight annas interest in all the lands in khata No. 161 including the plot in question. The complainant's case is that there was a family arrangement between the two branches in the family, in pursuance of which Adikanda was exclusively in possession of certain plots of land, and out of those lands, he by a registered deed of gift (Ext. 4), bequeathed 2.52.5 kadis of land in the year 1929 in favour of the complainant's husband Kalpataru, the adopted son of Adikanda. The plot in question was included amongst the lands gifted to Kalpataru, and ever since his death the complainant, being now the owner of the aforesaid lands, is getting the entire plot in question cultivated through p.w. 2, her Bhag tenant. 6. The plot in question was included amongst the lands gifted to Kalpataru, and ever since his death the complainant, being now the owner of the aforesaid lands, is getting the entire plot in question cultivated through p.w. 2, her Bhag tenant. 6. The defence case is to the effect that there was no amicable settlement in respect of the lands belonging to the family, as alleged by the complainant. All the lands stood jointly recorded in the record of rights Ext. A, and as such the accused's branch has eight annas interest in all the lands belonging to the family including the plot in question. It is further alleged that they are in possession of their half share in the joint family lands and are accordingly in possession of the northern half of the plot in question, and the complainant is in possession of the southern half of the said plot. It is asserted by the defence that in the year in question accused Pravakar raised crop on the northern half of that plot on his own right and the accused person cut and removed paddy from that portion of the said plot. 7. In order to show that there was some sort of a partition or family arrangement between the two branches in the family, the complainant has filed (i) a number of sale deeds, (ii) rent receipts, a gift deed (Ext. 4) executed by Adikanda in favour of Kalpataru and (iv) the yaddast entries in respect of the lands belonging to that family. The purpose of filing the sale deeds is to show that Kalpataru, after execution of Ext. 4 in his favour, effected several sales of the lands bequeathed to him by Adikanda' in favour of several persons. There is nothing to show that any of those sales had been challenged by any member of the other branch. Ext. 5 is the certified copy of one such sale deed executed by the complainant in favour of Rodani Dei, mother of accused Pravakar. It is submitted on behalf of the complainant that about Ac. 1.42 decimals of land belonging to that family have been sold away by Kalpataru or his wife, the complainant, under seven different Kabalas, and the vendees thereof are in peaceful possession of the properties sold to them. It is submitted on behalf of the complainant that about Ac. 1.42 decimals of land belonging to that family have been sold away by Kalpataru or his wife, the complainant, under seven different Kabalas, and the vendees thereof are in peaceful possession of the properties sold to them. It is urged on behalf of the complainant that the above facts would evidently show that there was a partition or a family arrangement between the two branches in the family, as a result of which some lands were in exclusive possession of Adikanda, and he and his successors in interest dealt with those lands as they liked, and persons belonging to the other branch did not have any say III the matter and did not have right, title or interest in the same. It is urged that if that were not so those others would have objected to the said sales in favour of third persons, and the mother of accused Pravakar would not have purchased a portion of the joint family property from the complainant as specifically proved by Ext. 6. It is also contended that the above facts, apart from showing that there was a partition of family arrangement dividing and separating the family property between the two branches of the family, will also show that the gift made by Adikanda in favour of Kelpataru as per Ext. 4 was acted upon. The accused persons assert and the complainant has admitted that the accused persons were separately possessing half share of the joint family property. From certain notes made in the Yaddast (Ext. 19 series) it is seen that some members of that family and the vendees who had purchased some lands belonging to that family claimed that their possession in respect of the joint family lands should be separately noted. On their aforesaid claim it was ordered that those lands should be jointly recorded in the "Izmail Khata", but the respective possession of different persons should be separately indicated therein. On their aforesaid claim it was ordered that those lands should be jointly recorded in the "Izmail Khata", but the respective possession of different persons should be separately indicated therein. The facts borne out by the evidence stated above indicate that there was some sort of a family arrangement between the two branches in the family on account of which each branch was exclusively in possession of different portions of the joint family lands, and persons belonging to each branch exclusively dealt with the lands in their possession as they liked, without any objection or hindrance from the persons of the other branch. 8. There is however nothing in the said Yaddast (Ext. 19 series) or in the rent receipts filed by the complainant to show that plot No. 808/1618, which is the plot in question, was in the exclusive possession of the complainant. Ext. A, the Record of Rights of the previous settlement shows that the plot in question is a joint family land. The complainant's case is that she has been possessing the said plot in its entirety through her Bhag tenant, p.w. 2, whereas the accused persons assert that by virtue of their right to possess eight annas interest in the joint family properties they are all along in possession of the northern half of the said plot, and the complainant is in possession of only the southern half of that plot. The complainant has admitted that the accused persons are in possession of half of the joint family properties. It has been elicited from p.w. 2 that when he arrived near the land in question he found that the accused persons had cut paddy from the northern portion of that plot. p.w. 3 in his cross-examination has also stated that he saw the accused persons cutting paddy from the northern side of the plot in question. D.ws. 1 and 2 have testified to the fact that accused Pravakar was in possession of the northern portion of the said plot. Both of them have categorically denied the defence suggestion to them that the complainant was possessing the entire plot in question. D.w. 2 owns land in the neighbourhood, close to the land in question. D.ws. 1 and 2 have testified to the fact that accused Pravakar was in possession of the northern portion of the said plot. Both of them have categorically denied the defence suggestion to them that the complainant was possessing the entire plot in question. D.w. 2 owns land in the neighbourhood, close to the land in question. Nothing has been elicited from him to show that he was particularly interested in the accused persons or was ill disposed towards the complainant, or that for any other reason he came to depose falsely in favour of the accused persons. On the above evidence on record it is extremely difficult to hold beyond reasonable doubt that the entire plot in question, admittedly belonging to the joint family, was in the exclusive possession of the complainant, and the accused persons were not in possession of any portion of it as asserted by them. 9. Moreover, apart from the aforesaid reasonable doubt about the exclusive possession of the plot in question by the complainant, a case of bona fide claim of right is clearly made out in favour of the accused persons on the evidence on record. In this connection the oft-quoted passage from the decision in Chandi Kumar Das Karmakar and Anr. v. Abanidhar Roy 1964 S.C.D. 287 may be quoted: A claim of right in good faith, if reasonable, saves the act of backing from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists of not. An act does not amount to theft, unless there be not only, no legal right; but no appearance or colour of a legal right. By the expression "colour of a legal right" is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however weak. If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal. It has been observed in Tula Ram Patel v. Siba Sankar Kalo and Ors. 35 (1969) C.L.T. 889, that a plea of bona fide claim of right has always a reference to the existence of an honest belief in the mind of that accused that he has a legal right to the property he takes. It has been observed in Tula Ram Patel v. Siba Sankar Kalo and Ors. 35 (1969) C.L.T. 889, that a plea of bona fide claim of right has always a reference to the existence of an honest belief in the mind of that accused that he has a legal right to the property he takes. A claim of right is said to be bona fide when there is either a legal right or appearance of a legal light or colour of a legal right. Colour of legal right has been explained to mean a fair pretence of a right or a bona fide claim of right however weak. On the facts disclosed by the evidence on record discussed above a clear case of "bona fide claim of right", as understood in the legal parlance, is made out 10 favour of the accused persons. 10. In Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra it has been held: In law there are no fetters on the plenary power of the appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher Court not to upset the holding without very convincing reasons and comprehensive consideration. On a careful perusal of the evidence on record, its consideration in the impugned judgment, and on the aforesaid findings and conclusions I do not see any reason to interfere with the finding of acquittal passed in this case. Accordingly the order of acquittal is upheld and the appeal dismissed. Final Result : Dismissed