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Kor Singh Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1965CriLJ504
AppellantKor Singh
RespondentState
Cases ReferredSupreme Court Smt. Mathri v. State of Punjab
Excerpt:
- .....there is some force in this contention. it was necessary for the trial court to have put to the accused circumstances appearing in the prosecution evidence against him in order to enable him to tender his explanation. merely asking whether he had heard the statements of the prosecution witnesses was not enough. the accused is an illiterate villager and his reply that he had heard the statements made by the prosecution witnesses does not indicate that he was required to explain the circumstances appearing in the prosecution evidence against him. it is the duty of the court to put to the accused in clear words the circumstances which emerge from the statements of the prosecution witnesses so that he is in a position to tender his explanation to those circumstances. this has not been.....
Judgment:
ORDER

J.N. Wazir, C.J.

1. This is a revision application directed against the order of Sessions Judge, Jammu, dismissing the appeal of Kor Singh accused who was convicted under Section 447, R. P. C. by Munsiff Magistrate, Samba and sentenced to three months' rigorous imprisonment with a fine of Rs. 50/-, or in default to undergo one week's further rigorous imprisonment.

2. The prosecution case, briefly stated, is as follows ! Kor Singh accused is the landlord and Lehnu is his tenant who was in possession of about ten kanals of land situate in village Sarain Tehsil Samba. On the 11th of November, 1963 Lehnu was ploughing his land and it is alleged that Kor Singh accused entered into that land, unyoked his bullocks and drove them away. Lehnu filed a complaint against Kor Singh under Section 447, R. P. C. on the 12th of November, 1963. Kor Singh denied the charge and the trial Magistrate convicted him under Section 447, R. P. C. and sentenced him as stated above.

3. In this revision application it is argued on behalf of the petitioner that the trial Magistrate has not put questions to the accused under Section 342, Cr. P. C., for the purpose of enabling him to explain any circumstances appearing in the evidence against him.

My attention has been drawn to the statement of the accused recorded under Section 342, Cr, P. C by the trial Magistrate. The first question put to the accused was whether he had heard the statements of the prosecution witnesses. The accused replied in the affirmative. The other question put to him was 'what he had to say? The accused replied that he had to say nothing. The third question posed to the accused was if he had to lead evidence in defence. The accused said that he would produce witnesses in defence. The argument of the learned Counsel appearing for the accused petitioner is that the trial Magistrate has not strictly complied with the provisions of Section 342, Cr. P. C., which has caused prejudice to the accused. There is some force in this contention. It was necessary for the trial Court to have put to the accused circumstances appearing in the prosecution evidence against him in order to enable him to tender his explanation. Merely asking whether he had heard the statements of the prosecution witnesses was not enough. The accused is an illiterate villager and his reply that he had heard the statements made by the prosecution witnesses does not indicate that he was required to explain the circumstances appearing in the prosecution evidence against him. It is the duty of the Court to put to the accused in clear words the circumstances which emerge from the statements of the prosecution witnesses so that he is in a position to tender his explanation to those circumstances. This has not been done in the present case.

4. It is further contended on behalf of the petitioner that the ingredients of the offence under Section 447, R. P. C. have not been fully brought home to the accused and the Courts below have erred in convicting him under that section. The prosecution had to prove that the complainant was in possession of the property when the accused entered into that property and remained there with the intention (a) to commit an offence; or (b) to intimidate, insult or annoy the person in possession.

No doubt there is an allegation made by the complainant that the accused entered into the land which was in his possession and hurled abuses on him but in the evidence which he has produced in support of his allegation there is no mention that the accused hurled abuses upon him, nor is there any mention that any force was used by the accused to eject the complainant from that land. Jhandu and Gigo are the witnesses produced by the complainant who have deposed that the complainant entered into the land, unyoked the bullocks and drove them away. It has been argued by the Assistant to the Advocate-General that the fact that the accused entered into the land which was in possession of the complainant and unyoked the bullocks, showed, that he used force to intimidate the complainant. But the complainant in his statement has not said a word about his being threatened or intimidated by the accused. His witnesses also have not stated that the complainant was intimidated by the accused. The fact that the accused who is landlord entered into the land and unyoked the bullocks is not a circumstance from which it can be gathered that the accused had an intention to commit any offence, or to intimidate, insult or annoy the occupant. There is no suggestion on the part of the prosecution that the bullocks were unyoked by the complainant with a view to taking forcible possession of the land.

In Marotrao Ganpatrao Jadhav v. State AIR 1960 Bom 481, it has been remarked that where there is a dispute between the owner and another person, who claims to be his tenant, it is obvious that the intent of the landlord can at the most be selfish but it cannot be said to be criminal. The trespass may be civil but not criminal. In that ruling reliance was placed on a Privy Council case Sinnasamy v. The King 52 Cri LJ 173 (PC) in which it is laid down as follows:

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 at any rate constituted no more than a subsidiary intent.

In a recent case decided by the Supreme Court Smt. Mathri v. State of Punjab : [1964]5SCR916 it is laid down as under:

The proposition that every person intends the natural consequences of his act is often a convenient and helpful rule to ascertain the intention of persons when doing a particular act. It is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. The ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural consequence of the action have to be taken into consideration. It is legitimate to think also that when Section 441, Penal Code speaks of entering on property with intent to commit an offence, or to intimidate, insult or annoy any person in possession of the property it speaks of the main intention in the action and not any subsidiary intention that may also be present. 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 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.

5. In the present case the prosecution witnesses have not said a word that the accused entered the premises with the intent to commit an offence or insult, intimidate or annoy the complainant. Under these circumstances the conviction of the accused cannot be sustained under Section 447, R. P. C. I, therefore, allow this revision application and quash the order convicting the accused under Section 447, R. P. C. and sentence passed thereunder. Fine, if paid, shall be refunded to the accused. The accused is on bail. His bail bond shall stand cancelled.


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