Nepal Nonia vs Emperor

Macpherson, J.—The petitioner was convicted by the Deputy Magistrate under S. 456 of the Indian Penal Code, but that conviction was altered in appeal to one under S. 448, with a sentence of three months'' rigorous imprisonment.

It is clear that the petitioner was caught at 11 p.m. in the northern corner of the room where the complainant was in bed with his wife and family, and the Magistrate apparently assumed that he had entered the room to commit theft or some similar offence. The learned Sessions Judge however, gave effect to a plea which was indeed not alleged by the petitioner himself but which was pressed on his behalf that he had made a mistake in respect of the room, having intended to enter an adjoining room to the south in which resided the wife of the elder brother of the complainant who himself was absent in another District. The suggestion was that the petitioner was proceeding to the room of this woman, and the Sessions Judge towards the end of his judgment states :

It seems to me possible that the appellant made a mistake as to the room and entered the room of Kartik (the complainant) when he thought he was entering the roam of his sister-in-law.

It is urged by Mr. Imam that the findings are not sufficient to constitute the offence found by the appellate Court. In order that the petitioner''s entry by mistake into complainant''s house should be criminal trespass at all, it is necessary in this instance that the petitioner should have entered to commit an offence. It is pointed out with force that it is not an offence to have sexual intercourse with the wife of another man, the offence under S. 497, of the Indian Penal Code, requiring proof further that such sexual intercourse was without the consent or connivance of the husband. The complainant having presented an entirely different case, the prosecution failed to adduce any evidence on that point. It appears Chat the two brothers are separate and occupy what must be considered to be separate though adjoining houses. It is not shown that when the petitioner intended to enter the house in possession of the complainant''s brother it was with intent to commit an offence punishable under S. 497 of the Indian Penal Code. It may be that if complainant''s brother had been examined it would have been easy to establish that ingredient of the offence punishable under S. 497. But it is clear that without his testimony and indeed without any testimony from any witness on the point, the offence of house trespass under S. 448 of the Indian Penal Code, is not established. It is not necessary to decide whether an entry in the house of the complainant with intent to commit an offence which in fact could not be committed there, would constitute an offence under S. 448.

Accordingly, the application must be allowed and the accused acquitted and directed to be released from bail.