Kor Singh vs State

J.N. Wazir, C.J.—This is a revision application directed against the order of Sessions Judge, Jammu, dismissing the appeal of Kor Singh

accused who was convicted u/s 447, R. P. C. by Munsiff Magistrate, Samba and sentenced to three months' rigorous imprisonment with a fine of

Rs. 50/-, or in default to undergo one week's further rigorous imprisonment.

The prosecution case, briefly stated, is as follows ! Kor Singh accused is the landlord and Lehnu is his tenant who was in possession of about

ten kanals of land situate in village Sarain Tehsil Samba. On the 11th of November, 1963 Lehnu was ploughing his land and it is alleged that Kor

Singh accused entered into that land, unyoked his bullocks and drove them away. Lehnu filed a complaint against Kor Singh u/s 447, R. P. C. on

the 12th of November, 1963. Kor Singh denied the charge and the trial Magistrate convicted him u/s 447, R. P. C. and sentenced him as stated

above.

In this revision application it is argued on behalf of the petitioner that the trial Magistrate has not put questions to the accused u/s 342, Cr. P. C.,

for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

My attention has been drawn to the statement of the accused recorded u/s 342, Cr, P. C by the trial Magistrate. The first question put to the

accused was whether he had heard the statements of the prosecution witnesses. The accused replied in the affirmative. The other question put to

him was ""what he had to say? The accused replied that he had to say nothing. The third question posed to the accused was if he had to lead

evidence in defence. The accused said that he would produce witnesses in defence. The argument of the learned Counsel appearing for the

accused petitioner is that the trial Magistrate has not strictly complied with the provisions of Section 342, Cr. P. C., which has caused prejudice to

the accused. There is some force in this contention. It was necessary for the trial Court to have put to the accused circumstances appearing in the

prosecution evidence against him in order to enable him to tender his explanation. Merely asking whether he had heard the statements of the

prosecution witnesses was not enough. The accused is an illiterate villager and his reply that he had heard the statements made by the prosecution

witnesses does not indicate that he was required to explain the circumstances appearing in the prosecution evidence against him. It is the duty of

the Court to put to the accused in clear words the circumstances which emerge from the statements of the prosecution witnesses so that he is in a

position to tender his explanation to those circumstances. This has not been done in the present case.

It is further contended on behalf of the petitioner that the ingredients of the offence u/s 447, R. P. C. have not been fully brought home to the

accused and the Courts below have erred in convicting him under that section. The prosecution had to prove that the complainant was in

possession of the property when the accused entered into that property and remained there with the intention (a) to commit an offence; or (b) to

intimidate, insult or annoy the person in possession.

No doubt there is an allegation made by the complainant that the accused entered into the land which was in his possession and hurled abuses on

him but in the evidence which he has produced in support of his allegation there is no mention that the accused hurled abuses upon him, nor is there

any mention that any force was used by the accused to eject the complainant from that land. Jhandu and Gigo are the witnesses produced by the

complainant who have deposed that the complainant entered into the land, unyoked the bullocks and drove them away. It has been argued by the

Assistant to the Advocate-General that the fact that the accused entered into the land which was in possession of the complainant and unyoked the

bullocks, showed, that he used force to intimidate the complainant. But the complainant in his statement has not said a word about his being

threatened or intimidated by the accused. His witnesses also have not stated that the complainant was intimidated by the accused. The fact that the

accused who is landlord entered into the land and unyoked the bullocks is not a circumstance from which it can be gathered that the accused had

an intention to commit any offence, or to intimidate, insult or annoy the occupant. There is no suggestion on the part of the prosecution that the

bullocks were unyoked by the complainant with a view to taking forcible possession of the land.

In Marotrao Ganpatrao Jadhav Vs. The State and Another, , it has been remarked that where there is a dispute between the owner and another

person, who claims to be his tenant, it is obvious that the intent of the landlord can at the most be selfish but it cannot be said to be criminal. The

trespass may be civil but not criminal. In that ruling reliance was placed on a Privy Council case Sinnasamy v. The King 52 Cri LJ 173 (PC) in

which it is laid down as follows:

Entry upon land, made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a

foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or

dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to

cover the real intent, or at any rate constituted no more than a subsidiary intent.

In a recent case decided by the Supreme Court Mathuri and Others Vs. State of Punjab, it is laid down as under:

The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of

persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all

circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the

natural consequence of the action have to be taken into consideration. It is legitimate to think also that when Section 441, Penal Code speaks of

entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the

main intention in the action and not any subsidiary intention that may also be present. In order to establish that the entry on the property was with

the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of

the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation

or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such

annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural

consequences would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such

intimidation, insult or annoyance, being the dominant intention which prompted the entry.

In the present case the prosecution witnesses have not said a word that the accused entered the premises with the intent to commit an offence or

insult, intimidate or annoy the complainant. Under these circumstances the conviction of the accused cannot be sustained u/s 447, R. P. C. I,

therefore, allow this revision application and quash the order convicting the accused u/s 447, R. P. C. and sentence passed thereunder. Fine, if

paid, shall be refunded to the accused. The accused is on bail. His bail bond shall stand cancelled.