Nihora Kahar vs Emperor

Varma, J.—This is an application on behalf of Nihora Kahar who was convicted by the Sub-Deputy Magistrate of Buxar with second class powers under S. 454, Penal Code, and sentenced to three months'' rigorous imprisonment. The charge against him was as follows:

That you, on or about 30th day June 1934 at Dumraon, P.S. Dumraon, committed dwelling house trespass by entering into the house of Mt. Munwa Pasin and used as human dwelling in order to the commission of theft punishable with imprisonment, and there by committed an offence punishable under S. 454, I.P.C. etc.

The case for the prosecution is a very simple one. Mt. Munwa on the day of occurrence had gone out early in the morning at 5 a.m., to an orchard of which she had taken settlement from the owners. When, she returned at 2 p.m., to her house she found the accused inside it. On seeing her he tried to conceal himself in the kitchen. Thereupon Mt. Munwa locked the door from outside and shouted "thief, thief." Some of the prosecution witnesses, including three constables belonging to an outpost close by reached the house and the accused was taken out of the room in their presence and taken to the thana. A first information was lodged by Munwa Pasin. It may be noted here that Munwa Pasin had left the house in charge of her daughter Premia, a married woman, who came from her husband''s place about six or seven months of the date of occurrence. Her age is said to be twenty years premia''s statement is that a little before the time the accused was found in the house, she had gone out to bring water from a neighbouring well. The trial Court found, to quote his own words:

that there is an overwhelming evidence to connect the accused with the offence under S. 454 I.P.C., as he was found committing lurking house trespass by entering into the house of Mt. Munwa used as human dwelling in order to the commission of an offence.

The case for the defence was that the accused had been carrying on an intrigue with Premia and went to the house in the absence of the mother to meet Premia. A number of letters were produced for the purpose of showing that elaborate correspondence was going on between the accused on the one hand and Mt. Premia on the other. These letters, to my mind, could not be of any use to the accused. Premia denies the authorship and the boy Ramjan Mian, who was supposed to be the go between, and has been examined on behalf of the accused, stands thoroughly discredited. Mr. Gopal Prasad for the petitioner raises a point of law and that is that when the charge indicated that the trespass was committed with the intention of committing theft, the petitioner should not have been convicted for having committed trespass with the object of committing an offence. A number of decisions have been placed before me both for and against the contention. Mr. Gopal Prasad relics upon, the decision in Raghu Singh v. Emperor, 1920 Pat 500 = 56 IC 592 = 21 Cr LJ 196, which is based on a decision of the Calcutta High Court in Mahomed Hossein v. Emperor, 1914 Cal 663 = 22 IC 766 = 15 Cr. L.J 190 = 41 Cal (sic) 43, whereas Mr. B.C., appearing on behalf of the Crown in chiefly upon the case of Karali Prasad Garu v. Emperor, 1917 Cal 824 = 35 IC 984 = 44 Cal 358, and also on the decision of Court in Jadav Mahton v. Emperor, 1921 pat 217 I an opinion that the last two cases applicable to the facts of this The only difference between those (sic.) and the present case is that whet the charge in this case was u/s 454 with the object of committed theft in those cases the charges v. under S. 457 with the object of mining theft. But apart from the decisions S. 238. Criminal P.C., down that:

When a person is charged with an of consisting of several particulars, a combination of some only of which constitutes a (sic) minor offence, and such combination is but the remaining particulars are not provide may be convicted of the minor offence,(sic) he was not charged with it....

On this point, I am afraid the contention of Mr. Gopal Prasad cannot succeed. But there is another point urged by Mr. Gopal Prasad with some amount of force that if the entry into the house with the intention of committing theft is not proved, what is the offence which could be the object when the accused trespassed into the house. Mr. De suggested adultery. There are no doubt a number of cases in which when a man was found inside a house under very exceptional circumstances, for example, at midnight, the presumption was raised that he was there with an intention of committing an offence whatever that offence might be. At any rate his entrance into the house was sure to cause annoyance to the inmates which bring his act within the purview of S. 441, Penal Code. But in this case I do not find anything on the record to indicate that the accused entered the house with the intention of committing an offence. There is no evidence to support the suggestion made by Mr. De that the intention was to commit adultery. So far as the accused knew there were no other inmates in the house except the girl when the accused entered, the mother having left the house at 5 a.m., as I have already mentioned. His subsequent conduct of trying to conceal himself when Mt. Munwa arrived does not indicate an intention to do any of the acts mentioned in S. 441, Penal Code, the whole anxiety being to conceal himself as soon as possible. It may be that he went only to have a talk with the girl Premia and when discovered in the house, he did not like to be seen any more. That being so I do not feel satisfied that it has been proved that the intention of the accused in going to the house was to commit an offence. I would therefore set aside the conviction and sentence passed upon the accused.

The lower appellate Court seems to be under a misapprehension when it says that the trial Court found that the accused entered the house with the object of committing theft to quote his words:

As the record stands the circumstances in which the appellant was caught inside the house the lower Court''s conclusion that the man had committed lurking house trespass in order to commit the crime of theft.

With all respect to the lower appellate Court I do not find where the trial Court came to that conclusion. But anyhow it does not affect the position of the accused, because the effective portion of the lower appellate Court''s judgment is that be upheld the finding of the trial Court.