S.N. Modi, J.
1. This appeal by the complainant Bhanwar Lal is directed against the order of the Additional Munsif-Magistrate, Merta City, acquitting the accused-respondents of the offence under Section 448 IPC.
2. Briefly put, the case of the complainant was that in execution of a decree of a civil court the salesamin of the District Court, Merta, auctioned the house in dispute. The sale was confirmed by the executing court on 22.8 64 and a sale certificate was issued in favour of Bhanwarlal on 19.5.65. On 17 5.66 the sales amin handed over possession of the house in dispute to Bhanwarlal after breaking open its lock, as the judgment debtor accused-respondent Mst. Jadawali was not present at the house. The sales am in also prepared a list of the property lying in the house and handed over to PW 1 Sampatraj vide superdinama Ex. P. 3. Bhanwarlal put certain goods inside the house and locked it. It is alleged that on the night between the 17th and 18th May, 1966 the two accused respondents broke open the lock put by Bhanwarlal and took over possession of the house. Bhanwarlal thereupon filed a report at the police station, Degana, on the same day, that is, 18-5-66. On finding that the police was not doing any investigation, he lodged the complaint in the court of the Additional Munsif-Magistrate, Merta City, on 24-5-66. The accused-respondents pleaded not guilty and denied that they had committed house-trespass as alleged by the complainant Bhanwarlal. According to them, the house in dispute was in fact never auctioned and Bhanwarlal was never put in possession of it. In defence, the accused- respondents examined two witnesses. The learned magistrate came to the conclusion that the possession of the disputed house was given to the complainant Bhanwarlal on 17-5-66. He also came to the conclusion that the two accused-respondants entered the house on the night between 17th and 18th May, 1966 after breaking-open the lock put on by the complainant Bhanwarlal. He, however, held that there was no intent to annoy the complainant, and as such the offence under Section 448 IPC was not made out. He accordingly acquitted the accused respondents. It is against this order that the present appeal has been filed after obtaining special leave under Section 417(3) Cr. P. C.
3. The first question that arises for determination in this case is whether on the facts and circumstances of the case, the intent to annoy the complainant Bhanwarlal had been established. The law on the point is now well-settled by the decision of their lordships of the Supreme Court in Mst. Mathuri and Ors. v. State of Punjab : 5SCR916 , wherein their lordships after reviewing the authorities, stated the law thus:
The correct position in law may, in our opinion, be stated thus: In order to establish that the entry on the property was with the 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 person 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.
4. In the present case, the two accused-respondents broke open the lock and took possession of the disputed house after it was handed over to the complainant Bhanwarlal. In these circumstances, there cannot be any doubt that the intention of accused-respondents was to annoy the appellant who was in the possession of the house. The accused-respondents very well knew that the house had been auctioned and the civil court had given possession of it to the complainant Bhanwarlal. The learned counsel for the accused-respondents also did not press this point. The only point which he urged was that, according to him, the house which was taken possession of in execution of the decree, was a different one than the house in which the two accused-respondents were found in possession on 18-5-66. In this connection, I have gone through the entire evidence on the record. The boundaries of the house which was auctioned by the civil court, were as follows:
cast -- Highway
West -- Ramdeen Saveri's Prabhura's houses
North -- Manak Bambhi's house
South -- Highway
The house mentioned in the complaint comprise the same boundaries except that on the north instead of ManakBambhi's name the name of Bharmal has been shown. That does not make any difference. The entire evidence led by the complainant is to the effect that the possession was taken of the same house which was auctioned. In my opinion, there is no substance in the contention that the house which was sold in auction was not the house in dispute. Another point which has been argued is that it is not proved that accused-respondent Chothia committed house-trespass. According to the complainant's evidence, Mst. Jadawali alone was found in possession of the bouse on 18-5-66 when Narainsingh along with Sampatraj went at the spot. PW 2 Balmukand and P W 3 Nemichand have also stated that they saw only Mst. Jadawali in occupation of the house There is thus no reliable evidence that accused-respondent Chothia also committed house trespass.
5. In the result, I allow the appeal in part, affirm the order of acquittal dated 31-5-68 of the Additional Munsif-Magistrate, Merta City, so far as accused-respondent Chothia is concerned, but set it aside against Mst. Jadawali and convict her under Section 448 I. P. C. and sentence her to pay a fine of Rs. 100/-, and in default thereof, to undergo one month's rigorous imprisonment, A lenient sentence has been passed in view of the fact that the accused respondent is a lady.
6. The learned counsel for the accused-respondent Mst. Jadawali wants one month's time to deposit the amount of fine, which is allowed.