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Bala Bariha and ors. Vs. Kathu Bariha - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 80 of 1967
Judge
Reported inAIR1970Ori47
ActsIndian Penal Code (IPC), 1860 - Sections 441 and 447
AppellantBala Bariha and ors.
RespondentKathu Bariha
Appellant AdvocateP.V.B. Rao, Adv.
Respondent AdvocateB. Naik, Adv.
DispositionRevision allowed
Cases ReferredSmt. Mathri v. State of Punjab
Excerpt:
.....taking all circumstances into consideration including the natural consequence of the act and the plea of the petitioners whether the dominant intention of the entry was to cause annoyance......with his relations the other petitioners, trespassed into the disputed land which is a part of the jhankar lands in possession of the complainant, ploughed it and spread manure. thereby they committed criminal trespass. the defence is that complainant had given the disputed land to petitioner no. 1, while he was working as gomasta-jhankar and he has been in possession of the same. being in possession, he ploughed the land and spread manure and has been falsely implicated. the other petitioners are his relations whose assistance he took in performing the ploughing operations.3. there is no dispute that the land in question is a part of the jhankar lands and that complainant is ex-jhankar. there is also no dispute that petitioner no. 1 for 7 or 8 years worked on gomasta-jhankar being.....
Judgment:
ORDER

A. Misra, J.

1. Each of the petitioners has been convicted Under Section 447 I. P. C. and sentenced to a fine of Rs. 20/-; in default, to undergo S. I. for one week.

2. The complainant's case, in brief, is that as ex-jhankar of village Srigida, he was all along in possession of the jhankar service lands situate in the village. For some time, he engaged petitioner No. 1 to work as gomasta-jhankar under him on payment of five pudugs of paddy per year as his wages. Subsequently, when petitioner No. 1 stopped working as gomasta, he stopped payment of his remuneration. On the date of occurrence, it is alleged that petitioner No. 1 along with his relations the other petitioners, trespassed into the disputed land which is a part of the jhankar lands in possession of the complainant, ploughed it and spread manure. Thereby they committed criminal trespass. The defence is that complainant had given the disputed land to petitioner No. 1, while he was working as gomasta-jhankar and he has been in possession of the same. Being in possession, he ploughed the land and spread manure and has been falsely implicated. The other petitioners are his relations whose assistance he took in performing the ploughing operations.

3. There is no dispute that the land in question is a part of the jhankar lands and that complainant is ex-jhankar. There is also no dispute that petitioner No. 1 for 7 or 8 years worked on gomasta-jhankar being engaged by the complainant. According to the complainant, for the service of petitioner No. 1, he had offered some land, but when the latter pleaded inability to cultivate, he gave him wages in the shape of five pudugs of paddy annually, while according to the defence, the land in question had been given to him and he was in possession of it as gomasta-jhankar. The learned Magistrate, on a consideration of the evidence, accepted the version of the complainant and convicted the petitioners.

4. Learned counsel for petitioners assails the conviction only on one ground. He contends that to sustain a conviction Under Section 447 I. P. C., it is incumbent on the prosecution to prove, and for the court to give a finding that the accused committed trespass with one of the intents specified in Section 441 I. P. C., i.e. intent to insult, annoy, intimidate or commit an offence.

In this case, all that has been proved by the complainant is that on the date of occurrence, petitioners ploughed the land and spread manure. Accepting the complainant's version that he was in possession of the disputed land, the learned Magistrate has observed that the action of petitioners in the circumstances has definitely caused annoyance to the complainant who was in possession of the jhankar lands. This being the finding of the learned Magistrate, it is argued by Mr. Rao, learned counsel for petitioners that the requisite intention to justify a conviction Under Section 447 I. P. C. has not been proved and the mere fact that the action of petitioners resulted in annoyance to the complainant, even if true, cannot amount to criminal trespass. On the other hand, for the opposite party, it is contended that when the land in question was in possession of the complainant, the action of petitioners cannot but be construed as one done with intent to annoy him.

5. The principle of law has been clearly explained by the Supreme Court in the decision reported in AIR 1964 SC 986, Smt. Mathri v. State of Punjab as follows:

'In order to establish that entry on the property was with 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.'

All that the learned Magistrate has found was that the action of petitioners caused annoyance to the complainant who was in possession of the disputed land. He has failed to determine taking all circumstances into consideration including the natural consequence of the act and the plea of the petitioners whether the dominant intention of the entry was to cause annoyance.

In the present case, admittedly, petitioner No. 1 was serving as gomasta-jhankar under the complainant for 7 or 8 years and claims to have been given the piece of land in question towards his remuneration. While the complainant says that he was giving five pudugs of paddy every year as remuneration, there is no clear finding whether the remuneration consisted of paddy, as alleged by the complainant, or the land had beer. given as asserted by petitioner No. 1. In the circumstances, when all that the petitioners did was to plough the land and spread manure asserting that petitioner No. 1 has been in possession of that land in lieu of his wages, it will not be reasonable to conclude that the dominant intention of making the entry was to annoy the complainant. On the other hand, the dominant intention in all probability was to assert possession over the land. Merely because by such assertion annoyance resulted to the complainant, it cannot be said that the trespass amounted to criminal trespass punishable Under Section 447 I. P. C. 6. In the result, the revision is allowed, the conviction and sentence are set aside and the petitioners are acquitted.


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