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Chandrappa and ors. Vs. Megharaj - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Reported in1952CriLJ343
AppellantChandrappa and ors.
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer..........imposing on all of them a fine of rs. 15/- only. hence these revision petitions by each of the accused. the learned addl. district magistrate by order dated 19th december 1950 directed also that the possession of the house should be restored to the complainant, megharaj. two revisions have been filed against this order also. i have heard the arguments of the learned advocates of the parties and record my opinion below. this judgment will cover all the revisions filed.2. the facts alleged are that on 30th thir 1357 f., the complainant megaraj's house in the village of sayyidapur, ishapur taluk, gulbarga dt., was entered into by force by the accused; that the house was under the supervision of siddalingappa, the complainant's 'gumastha'; that at the time of the forceful entry,.....

Siadatali Khan, J.

1. These are seven revision petitions in a criminal case. The Addl, District Court, Gulbarga, by judgment dated 9th December 1950 has convicted and sentenced the accused, Chandrappa, Ella, Ashappa, Shivalinga, Hyali, Sukrappa and Hanmappa for criminal trespass under Section 377, H.P.C. corresponding to Section 448, I.P.C. imposing on all of them a fine of Rs. 15/- only. Hence these revision petitions by each of the accused. The learned Addl. District Magistrate by order dated 19th December 1950 directed also that the possession of the house should be restored to the complainant, Megharaj. Two revisions have been filed against this order also. I have heard the arguments of the learned advocates of the parties and record my opinion below. This judgment will cover all the revisions filed.

2. The facts alleged are that on 30th Thir 1357 F., the complainant Megaraj's house in the village of Sayyidapur, Ishapur Taluk, Gulbarga Dt., was entered into by force by the accused; that the house was under the supervision of Siddalingappa, the complainant's 'Gumastha'; that at the time of the forceful entry, Siddalingappa's brother Dodappa was cleaning the house; that the accused asked him to go away and threatened to beat him if he did not go away; that they removed foodgrains, household utensils, agricultural implements, cash and ornaments of gold and silver. The complainant laid information to the police of Wadgira Police Station-house on 1st of Shehrewar 1357 F; that the Police issued the F.I.R. but after investigation reported to the Court that there appears to be a dispute of a civil nature between the complainant and the accused and, therefore, the proceedings should, in their opinion, be closed. Thereupon the complainant lodged a complaint and it was enquired into and the abovementioned order was passed convicting and sentencing the accused to a fine of Rs. 15. The complainant has adduced ten witnesses and the accused two. I have carefully perused the evidence of the complainant's witnesses and also that of the defence. There are no less than four eye-witnesses, viz., P.Ws. 2, 3, 5 and 9. P.W. 3 has deposed, that he was cleaning the house of the complainant when the accused entered it by force and beat the complainant's colt and untying its string drove it from the house; that he asked them to desist but they replied by throwing him out of the house and tying their own bullocks in the complainant's house. P.W. 2, Irappa, a 'Saith-Sindhi' deposed that he saw the accused going armed to the house of the complainant with some bullocks: that he went behind and saw the beating of the colt and the throwing out of P.W. 3; that thereupon they went to the Police patel and informed him of the incident; that the Police Patel also came to the scene but the accused asked him to go away; that the complainant lives in Sayyidapur and comes to Wadgira every now and then; that he was informed of the incident immediately but he returned to the house many days later. Similarly C.Ws. 5 and 9 are Yenkappa and Sayanna and they have deposed to witnessing the forceful entry of the accused and the ejectment of C.Ws 1 and 2. Moreover, C.W. 3, Bimrao, has deposed to recording the occurrence in his daily diary and sending the information to the Police Station-house. C.W. 10, Mohammad Osman, Circle Inspector, has deposed to the receipt of the report of Police Patel on 30th Their 1357 F; and C.W. 6, Imam-saheb, has deposed to writing to the complainant that the accused wants to come to an understanding with him about the house and that he should come to Wadgira; that he wrote this letter at the instance of the accused but, later on, finding that the accused want to harm the complainant he wrote to him again, that he should come (sic) to Wadgira as his life would be in danger. Witness No. 8 is Megaraj, the complainant himself, and he has deposed to the above facts and to the receipt of the letters of Imamsaheb and that he delayed going to Wadgira for fear of his life. He has totally denied that he sold or agreed to sell the house to the accused or received any price for the same.

3. On this evidence I have to determine whether the offence of criminal trespass can be said to have committed by the accused or not. The criminality under this rather difficult Section (441 I.P.C.)

depends not on the use of force or the unlawfulness of the entry, but upon the intention, to commit an offence, or to intimidate, insult or annoy any person in possession

It is also to be noted that-

an unlawful entry is not necessarily an offence and an intention to commit an unlawful act, not being an act mentioned in this section, does not render the accompanying trespass a criminal trespass.

The learned advocate for the accused has argued that It cannot be said that the offence of criminal trespass has been committed as no acts of the accused have been proved by which, their intention to commit an offence or to intimidate, insult or annoy the complainant can be gathered. I do not agree as entering the house of the complainant and throwing his servant out is not only intimidating the complainant or his servants, but is also causing annoyance to him. The criminal intent can be gathered from these very acts. The learned advocate argued also that the learned Addl. District Magistrate has not framed any charge of dacoity or burglary with which the complainant had charged the accused. This is true but is no reply to the charge of criminal trespass framed and held to be proved by the Magistrate, because of Intimidation of complainant's witness No. 3 and resulting annoyance to the complainant. The learned advocate has also argued that the learned AddL District Magistrate did not pay any attention to the defence witnesses. This is incorrect. The learned Addl. Dt. Magistrate has referred to the defence witnesses in his judgment and has held that their story that the accused purchased the house from the complainant for Rs. 2000/- arid paid Rs. 1800/- to him and that only Rs. 200/- were still to be paid cannot be believed as not even a receipt for the payment of Rs. 1800/- was taken by the accused, In view of this finding, with which I agree, the argument of the learned advocate for the accused that the entry of the accused was under a bona fide claim of right and was, there-tore, not criminal is wholly untenable. For,

the mere assertion of a claim of right is not sufficient defence to a charge of criminal trespass; to be a good defence it must be a claim made in good faith; that is to say, it must be a claim in which the person must have himself believed that it cannot be legally tenable' (sic. untenable?)

As already stated the only evidence of a contract of purchase of the house for Rs. 2,000 and the payment of Rs. 1,800 out of it is the deposition of two defence witnesses which is wholly unsupported by any documentary evidence whatsoever. The alleged contract was not reduced to writing and though a huge sum of Rs. 1,800 is alleged to have been given to the complainant, even a receipt was not taken. The learned Magistrate has, therefore, justly remarked that the claim of right is wholly unrelated to facts and is made as an excuse for the unlawful act of the accused. With this finding I agree, for it is a hard exercise of faith to believe the transaction because of the evidence of two witnesses only when having regard to the ordinary experience of mankind such a large sum would not have been paid without a contract in writing and a receipt for the money. Again, the learned Advocate pointed out that the witnesses produced by the complainant in the Court were different from the witnesses he had produced before the Police and this shows that the witnesses produced in the Court were false and mercenary witnesses. The learned Additional District Magistrate has considered this point and held that the complainant had other witnesses and seeing that the witnesses he had produced before the Police colluded with the accused, produced other witnesses in the Court and that cannot be considered to be a suspicious proceeding. In my opinion, when the witnesses produced in the Court were not shaken in the cross-examination and the lower Court believed in them and I myself on perusing their deposition find no reason why I should not believe them this argument of the learned Advocate also does not carry any weight. Lastly, the learned Advocate laid great stress upon the delay in filing the information of the incident to the Police. He argued that the alleged incident took place on the 30th Their 1356 P and the F.I.R. was issued by the Police under Section 155 Criminal P.C. corresponding to Section 160, Indian Criminal P.C. on the 1st of Shehrewar 1356 F; that this delay taken with the admitted fact that the complainant did not produce in Court a single witness Which he had previously adduced before the Police during the investigation lays bare the naked fact that the complainant is wholly baseless. I have carefully considered this argument and of course delay in laying the complaint is generally considered as a fact tending to discredit the complaint. But I am afraid, in this case the learned Advocate for the accused has not got his dates correct. The incident occurred not on 30th Thir 1356 F; but on 30th Thir 1357 F which is admittedly a time of disturbance in this State and it is on this ground that the learned Magistrate has excused the delay holding that as the complainant has stated in his deposition that when he went to the Police Station-House for laying information, there was nobody present there. Besides, it is evident from the complainant's deposition that he laid the information on the 3rd Amardad 1357 F.C.W. 10, Mohd. Osman, the Circle Inspector, does not deny this On the other hand, he has admitted that the information of the incident was received at the Station-House on the day of occurrence, that is, on 30th Thir 1357 Fasli as the Police Patel sent the information through his daily diary dated 30th Thir 1357 F. It is evident from the deposition of this witnesses that no action was taken on this information by the Police Patel, In the circumstances, the deposition of the complainant that he went to lodge a complaint with the Police on, the 3rd Amardad cannot necessarily be discredited. A persual of the deposition of C.W. 10, the Circle Inspector of Police, will show further that on receipt of the information of the incident through Police Patel's diary he sent for the complainant twice in Amardad 1357 F; that the first time when he sent for the complainant was about 24th Amardad 1357 F but the complainant was not to be found at his place of residence and that he was again sent for and he appeared on 1st Shehrewar 1357 F and filed a written application on which the F.I.R. was issued. The position then comes to this that the Police was informed of the incident on the very day of incident, 30th Thir 1357 F; but it appears that they failed in their duty and did not issue the F.I.R. on that date or even a day or two of that date after satisfying themselves of the truth of the Police Patel's report; that for some reason best known to themselves they delayed the issuing of the F.I.R., and it was issued only when the complainant was summoned and filed a written application, in the circumstances, the delay argued by the learned Advocate for the accused does not detract from the truth of the incident. In the result, these revision petitions against conviction and sentence cannot be accepted and, similarly, the revision petitions against the order of restoring the house to the complainant cannot be allowed for the reason that the accused themselves do not dispute that the house belongs to the complainant and only claim to have purchased it from him/and their claim is not proved.

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