Patna High Court
Phul Kumari vs Sheodahin Tiwary And Anr. on 25 January, 1965
Equivalent citations: AIR1965PAT507, 1965CRILJ798, AIR 1965 PATNA 507, 1965 BLJR 166
JUDGMENT G.N. Prasad, J.
1. The complainant Phul Ku-mari has filed this appeal with special leave under Section 417(3), Code of Criminal Procedure. The two respondents, who are husband and wife, were convicted by the trying Magis trate under Sections 323 and 448, Indian Penal Code, and sentenced to pay a fine of Rs. 600/-each, but on appeal the conviction and sentence were set aside by the learned Additional Sessions Judge. The parties are residents of the same village, Ram Sahar, within Barbara Police station, in the district of Shahabad. The dispute centres round a house standing on plot No. 9th of khata No. 333.
2. Plot No. 916 originally belonged to respondent Sheodahin Tiwary who made a gift of his properties to his wife, respondent Jugna Kuer. under a registered deed dated the 24th March 1949. The deed of gift included 0.94 acre out of plot No. 1522 of khata No. 604 and 0.03 acre out of the disputed plot, which bears plot No. 916. Plot No. 1522 measured 1.02 acres and plot No. 916 measured 0.25 acre. Before making the gift in favour of his wife, respondent Sheodahin had created a usufructuary mortgage for Rs. 1800/- in favour of one Dulhin Prasad Kuer. After the gift in her favour, respondent Jugna Kuer executed a registered sale deed dated the 23rd July, 1951 for Rs. 3,000/- in favour of Radhika Devi and Bageshwari Devi, who are the Bhaujais of the complainant Under this deed, respondent Jugna Kuer purported to convey the entire 0.25 acre in plot No. 916 to her vendees. A sum of Rs. 1200/- out of the consideration for the sale deed was received by Jugna Kuer in cash and the balance was left with the vendees for redemption of the usufructuary mortgage which stood in favour of Dulhin Prasad Kuer in respect of plot No. 1522. But the vendees did not redeem the mortgage and, therefore, Jugna Kuer remained out of possession over plot No. 1522. Accordingly, she instituted a money quit against her vendees for recovery of damages due to breach of contract alleging the measure of the damages to be the value of the produce of her interest in plot No. 1522 for the years 1959-60. In that suit a modified decree was granted to her by the Courts below and the vendees came up to this Court in Second Appeal No. 508 of 1957. Kanhaiya Siugh, J. who heard the appeal dismissed the suit for damages by his judgment dated the 3rd March 1960, holding that the sale deed executed by Jugna Kuer was invalid inasmuch as she purported to sell 0.25 acres in plot No. 916, although her interest in that plot was confined to 0.03 acre only.
3. While the second appeal was pending in this court, Jugna Kuer instituted another suit against her vendees for recovery of Rs. 1800/-which was the unpaid balance of the consideration money for the sale deed dated the 23rd July 1951, but that suit was also dismissed by the trial court on the 23rd December 1959. It is in this background that present occurrence is alleged to have taken place on the 25th July 1960, about four months after the decision of this Court in Second Appeal No. 508 of 1957. (3) The case put forward by the complainant is that she was living alone in the house standing on plot No. 916 and her Bhaujais with their respective families were living in Calcutta and Monghyi. In the morning of the 25th July 1960, both the respondents entered into the house, assaulted her, drove her out of the house and occupied it, also retaining therein her belongings, such as ornaments and clothes worth approximately Rs. 5,000/ . She filed the complain on the following day.
4. In due course, the respondents were put on trial and charges were framed against them under Sections 323, 380 and 448, Indian Penal Code. These charges were denied by the respondents who alleged that the complainant was neither in possession of the house nor she was disposessed in the manner alleged by her.
5. Upon the materials on the record, the trying Magistrate came to the conclusion that (i) the vendees of the sale deed of July 1951 had come in possession over the house and the complainant was living therein at the time of the occurrence; (ii) the respondents had taken forcible possession of the house by assaulting the complainant and driving her out of it : (iii) but the charge of theft had not been substantiated. Upon these findings, the trying Magistrate convicted both the respondents under Sections 323 and 448, Indian Penal Code. But in consideration of their old ago (81 years in case of the husband and 75 years in case of the wife), he sentenced them to pay a line of Rs. 600/- each, with three months simple imprisonment in default under Section 448. imposing no separate sentence under Section 323
6. In appeal, the learned Additional Sessions Judge did not feel impressed with the evidence adduced by the complainant as to the manner in which she was alleged to have been dispossessed from the house and he was not able to believe that the complainant was assault ed when she was driven out of the house. The learned Judge accepted the complainant's case that she was in possession of the house at the time of the occurrence, but he was not satisfied that the accused persons were actuated with the intention of intimidating, insulting or annoying her when they had proceeded to take possession of the house, In this view, the learned Judge acquitted the respondents of both the charges. The complainant has accordingly preferred this appeal.
7. So far as the charge under Section 323 is concerned, I find it difficult to interfere with the order of the Court of appeal below which has fully considered the evidence of the complainant (P. W. 1) and her three witnesses onthe point of the occurrence; Ram Adhar Tiwary (P. W. 2), Chandra Sekhar Choubey (P. W .3) and Jugeshwar Nath Tripathi (P. W. 5). The learned Judge lias noticed that P Ws. 3 and 5 were not named as witnesses in the petition of complaint. It may be mentioned that P. W 3 had also not been relied upon by the trial court: P. W. 2 was the only witness examined out of eight persons named as witnesses in the petition of complaint, but he was a partisan witness who besides being related to the husband of one of the vendees, had deposed in one of the Civil suits to which t have referred. The learned Judge has also noticed certain discrepancies in the evidence of these witnesses and pointed out that the story of assault was not supported by medical evidence. The learned Judge also took into consideration the fact that the accused persons were "undoubtedly very old people" and it has not been suggested that they had taken help of any one else in dispossessing the complainant who is woman aged about 40 years and who could of course be in a position to otter some resistance against the action of these two people. The appraisement of the evidence made by the Judge cannot be said to be unreasonable or perverse so as to furnish any compelling reason for interference therewith in an appeal from an order of acquit tal. The acquittal of the respondents of the charge under Section 323, Indian Penal Code. must, therefore, be upheld.
8. The substantial question which falls for my consideration is whether the charge of house trespass has been brought home to the respondents The learned Additional Sessions Judge has come to the conclusion that the element of intention to intimidate, insult or annoy the complainant has not been established in this case and has referred to the various decisions of this Court and one decision of the Allahabad High Court for the proposition that there can be no offence of criminal trespass without proof of one or other of the intents necessary to constitute such an offence.
9. Mr. S.N. Misra has assailed the conclusion of the learned Judge on the ground that an inference of intent to annoy must be drawn from the fact that in committing the act the respondents must have been conscious that annoyance was bound to be caused to the complainant who was in occupation of the house. According to the learned counsel, the respondents must be deemed to have acted with such an intention, having regard to the well-established principle that a person is deemed to intend the natural and probable consequence of his or her ad. A number of rulings of the different High Courts have been cited at the bar, but it is unnecessary to refer to them because the point is now concluded by the decision of the Supreme Court in Smt. Mathri v. State of Punjab. Criminal Appeals Nos. 93 and 142 of 1962. D/- 11-12-1963: (reported in AIR 1964 SC 986). Therein it has been pointed out that the proposition that every person intends the natural consequences of his act i.s 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 paticular intention, all the circumstances including the natural consequence of the action has to he taken into consideration Their Lordships have further poinleu out.
"It is legitimate to think also that when Section 444 speaks of entering on properly '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 he present."
Their Lordships have approved of the follow ing observation made by Batty, J. in Bhagwant v. Kedari, ILK 25 Bom 202 is Conning ''one of the best expositions of the weaning of the word 'intent' as used in the Indian Penal Code."
"The word 'intent' by its etymotogy, seems to have metaphorical allusion to archery, and implies 'aim' and thus connotes not a casual or merely possible result foreseen perhaps as a not improbable incident, but not desired but rather connotes the one object for which the effort is made and thus lias reference to what has been called the dominant motive, without which the action would not have been taken. This being the settled principle of law. what has to be decided in the present case is whether in entering into the house, the respondents aimed at causing intimidation, insult or annoyance to the complainant or whether that was only a casual or merely possible result which they may have foreseen but not desired. In other words, can it be said that but for causing intimidation, insult or annoyance to the complainant, the respondents would not have effected their entry into the house.
IN THe background of events in which the occurrence took place, it is. in my opinion, impossible to hold that the dominant motive of the respondents was to commit an offence or to intimidate, insult or annoy the complainant. The dominant motive of the respondents, after their failure in the two civil suits, was undoubtedly to fake possession of the house, since the sale deed of July 1951, which Jogna Kuer had executed in favour of the Bhauiais of the com plaintiff had been declared invalid by this Court in the Second Appeal It is manifest that the respondents though I that when the sale deed had been found to be invalid, the property still belonged to them, and even though they may not have been justified in enicring upon the properly, without recourse to a court of law, there can be no doubt that their dominant motive was to lake possession of the property which bad not been validly conveved to the vendees. In entering into the properly, they may have been conscious that annovance to the complainant might be a natural and inevitable consequence of their action, but that was not the purpose with which they had entered into the house The respondents may well have though that the sale deed, would at best be operative in regard to 0.03 acre out of 0.25 acre in the disputed plot, and that on that score also, the vendees could not retain possession ever the major portion of the plot, I, am, therefore, not satisfied that the element of in tent to constitute the offence of house trespass has been established on the part of the respondents
10. In this view, I am unable to interfere with the order of acquittal passed be the learn ed Additional Sessions Judge. The appeal fails and it is accordingly dismissed.