Baharul Islam, J.
1. This application is on behalf of the two petitioners. Buduka Kalita and Ambeswar Kalita. and is directed against the order of conviction and sentence passed in G. R. Case No. 787 of 1965 by the Sub-Divisional Magistrate (Judicial) Sibsagar. who convicted appellant Buduka under Sections 448/324 of the Penal Code and sentenced him to rigorous imprisonment for two months and to pay a fine of Rs. 30/- in default to rigorous imprisonment for 10 days more and convicted appellant Ambeswar under Sections 448/323 of the Penal Code and sentenced him to undergo rigorous imprisonment for one month and to pay a fine of Rs. 20/- in default to undergo rigorous imprisonment for 5 days more.
2. The prosecution case is that on 12-9-65 at about 3-15 P. M. the two petitioners along with Boji Kalita and Konmai Kalita. entered into the dwelling house of Mamtajuddin Ahmed (P. W. 1). and assaulted his children 'and their private tutor. P. W. 3. P. W. 1 lodged an ejahar at the Amuguri Police Station. On receipt of the First Information Report the Police registered a case and after investigation submitted charge sheet under Sections 448/424/324/326 of the Penal Code.
3. The learned Magistrate framed a charge under Sections 448/324 against accused Buduka and Ambeswar and discharged the other two accused persons. The two petitioners pleaded not guilty to the charges. They have admitted that they entered into the house, but they claim it to be theirs. After examining a number of witnesses the learned Magistrate convicted and sentenced the accused persons as stated above. The accused then preferred an appeal before the Sessions Judge, Jorhat. who upheld the order of conviction and sentence passed by the Magistrate.
4. The appeal was registered and numbered as Criminal Appeal No. 4 (4)/69 at Jorhat. From the order sheet. it appears that the trial Court's records were received and the appeal became ready for hearing on 28-11-69. on which date it was kept in the ready list and no data of hearing was fixed. Counsel for the respondents appeared on 20-5-70. On 20-7-70. an order was passed by the Sessions Judge. Jorhat. ordering the appeal to be heard on 11-9-70 at Sibsagar. Counsel of the parties were ordered to be informed. But it does not appear from records whether counsel of the parties were in fact informed. Learned Counsel appearing on behalf of the petitioners states that the appellants did not know that the appeal had been transferred to Sibsagar and that 11-3-70 was fixed for hearing of the appeal and as such appellants' counsel could not appear on the date of hearing and the appeal was disposed of by the learned Sessions Judge in the absence of the petitioners' counsel. It also appears from the order dated 11-3-70 of the learned Sessions Judge that at the time of hearing appellants' counsel did not appear, and he only heard the counsel of the respondents.
5. If a criminal appeal is not summarily dismissed under Section 421 Criminal Procedure Code the appellant or his counsel is entitled under Section 422 Criminal Procedure Code to a notice of the time and place at which the appeal will be heard. If such a notice is not given to the appellant and the appeal is heard and disposed of in his absence that by itself will not. in my opinion, vitiate the order of the appellate Judge upholding the order of conviction unless failure of justice is shown to have been caused. Learned Counsel for the petitioners submits that the defence has not been properly appreciated and considered by the appellate Court and this has resulted in the failure of justice. Instead of remanding the case. I allowed petitioners' counsel to refer to evidence that might have been helpful to the accused, but omitted by the learned Sessions Judge, from consideration, so that the matter may be finally disposed of by this Court.
6. The evidence of P. W. 1 is that he purchased the land on which the disputed house had been constructed by a registered deed from one Padmeswar Kalita. He was utilising the house for the study of his children who were coached by a private tutor Sunil Kumar Lahon (P W. 3) during the day time and at night he sent another man to stay in the house. On the day of occurrence, P. W. 1 was in his shop house and his daughter Moni. P. W. 4. aged about 12 years, and his son, Babul were in the house and their private tutor. P. W. 3. was coaching them, In cross-examination. he admits that accused Buduka and Ambeswar are co-pattadars. but he says that Buduka has his house elsewhere on the land. He also admits that Buduka instituted a proceeding under Section 145. Criminal Procedure Code with respect to the disputed land and that in the said proceedings, there was an order by the Magistrate to give possession to the 1st party, but he stated that possession had not yet been delivered to the 1st party, P. W. 3 deposes that on 12-9-65, at about 3 P. M. he was busy coaching the son and daughter of P. W. 1. At that time, the two wives of accused Buduka came and began to pelt stones at the house. He then came out and said that the owner of the house was absent and they should go away. Accused Buduka did not listen to him but became aggressive. Apprehending trouble P, W. 3 closed the door. But Buduka broke the outer fencing of the compound, cut open the door of the house and entered into it Accused Buduka then gave a dao blow on the head of P. W, 3 who snatched away the dao from the hand of Buduka P. W. 4 and her brother then ran away from the house out of fear. Then accused Ambeswar entered the house with a lathi and siprang and gave a lathi blow on P. W. 3. P. W. 3 snatched away the lathi also. In the meantime. Police arrived at the place of occurrence. P. W. 2 Matiur Rahman is a rickshaw puller. He corroborates the evidence of P. W. 3 and in his deposition he says that he saw accused Buduka entering the house of P. W. 1. At that time, according to P. W. 2, 'the master was tutoring the children of P. W. 1,' Buduka gave a dao blow to the master. Master tried to snatch away the dao. He then says that there was a struggle. He saw an injury on the head of the 'master.' Accused Ambeswar then came with a lathi and gave 2 or 3 blows on P. W. 3 with that lathi. P. W. 4. Moni. supports the prosecution case to the extent that at the time of occurrence P. W. 3 was coaching her at about 3 P. M. at their 'new house.' Then Buduka gave a dao blow on the head of P. W. 3 who sustained bleeding injuries. Seeing this.' she and her brother ran away from the place. P. W. 5 Premadhar, also supports the prosecution case. P. W. 7 is the Medical Officer, who examined the injuries on P. W. 3. He found the following injuries on the person of P. W. 3.
(1) One contused wound on the inner side of the forearm of the left side with abrasion marks in the skin 4' x 3' weapon heavy rough, injury simple.
(2) One incised wound on the scalp (head). 1' x ' x 4'; sharp cutting weapon, injury simple.
(3) One lacerated injury on the inner side of the right forearm 6' x 4' x 4'. weapon, rough injury simple.
(4) One lacerated injury on the back of the right side chest wall. 3' x 2' x '; weapon rough, injury simple.
(5) Lacerated injury on the back of the right elbow joint l' x' x ' rough edged weapon, injury simple.
In cross examination, he states that injuries No. 1 and 3 might be caused by a lathi; injury No. 2 might he caused by a sharp cutting instrument i. e. a split bamboo.
7. Both the Courts below after consideration of the entire evidence on record have believed the prosecution case. Learned counsel for the petitioners submits that the judgments of the learned courts below are not in accordance with law as they have not properly appreciated and considered the defence case. According to learned Counsel, when the defence claimed the house in question to be theirs, no offence under Section 448 or under Section 324 or 323 could be committed by the petitioners. The question is whether P. W. 1 was in occupation of the house. In this case, P. W. 1 has said that the house had been constructed by him and he was in occupation of the house and in this respect he is corroborated by P. Ws. 2, 3, 4 and 5. The learned Magistrate after considering the evidence on record found that the house in question belonged to P. W. I; that accused Buduka and Ambeswar criminally entered into the house. The defence in cross-examination did not put to P. W. 1 that the house did not belong to him and/or that it was not in his possession or that it was in possession of the petitioners. A suggestion was put to P. W. 2 that the house belonged to the accused, but he denied the suggestion. Learned counsel submits that the house being situated in the Amguri town and P. W. 1 having failed to produce any municipal record to show that the house really belonged to him. while the accused persons claimed the house for themselves, there is a doubt as to ownership of the house and the benefit should go to the accused. In my opinion. after going through the evidence of the witnesses, there is no doubt that the house in question had been constructed by P.W 1 and that he was in possession thereof and that on the date of occurrence, the two petitioners committed criminal trespass into the house and therefore the offence under Section 448 of the Penal Code was well established.
8. The petitioners rely on a decision of the Privy Council reported in (1951) 52 Cr. L.J. 173 (PC). The Privy Council interpreting Section 441 of the Ceylon Penal Code held.
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 that at any rate constituted no more than a subsidiary intent.
The relevant charge against the two petitioners is as follows:
That you on or about 12-9-65 at Amguri town criminally trespassed into the dwelling house of Mamtajuddin with intent to cause the offence of causing hurt and thereby committed an offence punishable under Section 448 of the Indian Penal Code and within my cognizance.
Section 441 of the Penal Code provides 'Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, is said to commit criminal trespass.' In the instant case, the charge shows that the dominant intention of the accused as mentioned in the charge was to assault P. W. 3 and the other occupants of the house and the learned courts below have found and I do not find any reason to differ from them, that the dominant intention of the accused was to cause hurt and did in fact cause hurt to P. W. 3.
9. In the instant case the claim of the petitioners was not bona fide but a 'mere cloak to cover the real intent. to quote from the abovementioned Privy Council decision, to take law into their own hands and take forcible possession of the house in view of the order under Section 145. Criminal Procedure Code in their favour.
10. This leaves us with the offence under Sections 324 and 323 against the petitioners No. 1 and 2 respectively. The medical evidence quoted above clearly shows that an incised injury caused by sharp cutting weapon and lacerated injuries caused by blunt weapon like lathi were found on the person of P. W, 3. On this point the evidence of P. W. 3 is corroborated by P. Ws. 2 and 4 that a do blow was given on the head of P. W. 3 by accused Buduka and that lathi blows were given by accused Ambeswar. P. Ws. 2,3 and 4 have been believed by the Courts below, and indeed there is no reason to disbelieve them. Learned counsel appearing for the accused submits that the accused had the right of private defence; so when the injuries caused were simple the accused had to cause them to defend their property. The order made in Section 145. Criminal Procedure Code, proceeding has not been proved in the case. In cross-examination, P. W. 1 admits only that there was an order in favour of accused Buduka in respect of the disputed land to give delivery of possession of the land but delivery of possession had not been given. It therefore appears, as found above, that P. W. 1 was in possession of the house and the land on which the house was situated and having obtained the order under Section 145 Criminal Procedure Code, the accused persons, taking law into their own hands came to take forcible possession of the house. They had no right of private defence at all as the property was not in their possession.
11. The offences under Section 324. Penal Code against Buduka and under Section 323. Penal Code against Ambeswar. have been established beyond doubt. In the result this application fails and is rejected. The order of conviction and sentence passed by the learned Magistrate is upheld. The rule is made absolute.