Decided on November 02,1973

Dura Ranbida And Ors. Appellant
STATE Respondents


G.K. Misra, C.J. - (1.) ONE Labar Ganda, an ex -Choukidar, had five daughters Nura, Draupadi, Ura, Dura (accused No. 1) and Surunani. Urkala (p.w. 1), the informant, is the natural born son of Nura. He had been adopted by Labar Ganda in 1936. Dhanapati (accused No. 3) is the son of Draupadi. Radhakanta (accused No. 2) is the son of Dura. Prosecution case is that plot Nos. 1203 and 1274 in Holding No. 85 locally known as Amburaimal were in the possession of p.w. 1 who became the Choukidar of the village after the death of Labar Ganda. The Petitioners with one Jogendra and Draupadi went upon the disputed lands in the morning of 14 -1 -1971 and forcibly ploughed them. The defence of the accused persons was that 80 decimals of land had been given to Dura by her father Labar Ganda and the disputed lands are part of 80 decimals and she was all through in possession and cultivated the lands on the date of occurrence. Both the Courts below have concurrently found that the disputed lands were in the possession of p.w. 1 and the accused persons forcibly trespassed on those lands on the date of occurrence. Jogendra and Draupadi were acquitted. Dura, Radhakanta and Dhanapati were -convicted under Section 447, Indian Penal Code. Dura was sentenced to pay a fine of Rs. 60/ - in default, to undergo Section 1 for fifteen days. Radhakanta and Dhanapati have been released under Section 3 of the Probation of Offenders Act.
(2.) THE learned Sessions Judge in a careful judgment has discussed the entire evidence. P.ws. 2 and 3 are contiguous witnesses. They support the case of p.w. 1 that he was throughout in possession. They also support the prosecution version that for the first time Dura with other accused persons forcibly trespassed upon the disputed lands and did not heed to the protests made by p.w. 1 and by others on his behalf. Ext. 10 dated 15 -11 -1970 is a notice for water rate in favour of p.w. 1 and it includes the disputed plots 1203 and 1274. After examining all the relevant evidence -oral and documentary the learned Sessions Judge recorded a den finding that p.w. 1 was all through in possession. The positive case of the defence was that Dura has been in possession of the disputed lands after her father 's death. Positive evidence could be available on behalf of the defence to prove the possession of Dura. Not a single defence witness was examined; nor the prosecution case has been destroyed by any effective cross -examinations. The concurrent finding that p.w. 1 was all through in possession is unassailable. Mr. Sen then contended that the necessary intention to commit the offence under Section 447, Indian Penal Code has not been established by the prosecution. Section 441, Indian Penal Code defines criminal trespass. So far as relevant, it runs thus: 441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person, in possession of such property xxx is said to commit "criminal trespass". Where there is no bona fide dispute between the parties as to possession but the offender for the first time comes upon the land of the rightful owner to dispossess him forcibly without any semblance of legal right, the entry into the property is to annoy the person in possession of such property. There could be no other intention. The point is so elementary that it needed no authority to be cited.
(3.) MR . Sen places reliance on Smt. Mathri and Ors. v. The State of Punjab : A.I.R. 1964 S.C. 986, end contends that the act of the Petitioners was not with the intent to annoy and as such, the conviction under Section 447 is untenable. It is difficult to appreciate why this decision was cited. The facts of that case are : The decree -holders went upon the land in possession of the judgment -debtors to take possession under a writ of delivery of possession The last date for execution of the warrants for delivery of possession was sometime in April 1960. The date of occurrence was 7th June, 1960. The warrants were not executable in law by the date of occurrence. It was accordingly contended that the prosecution committed the offence of trespass in entering upon the land on a date when the warrants of delivery of possession were not executable and the entry was with the intent to annoy the judgment -debtors who were in possession. Their Lordships laid down the correct position in law 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 persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimation or insult, the Court case 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 promoted the entry. On the aforesaid principles, their Lordships held that the entry of Ratan Singh and others was not with an intent to annoy. They were executing the warrants of delivery of possession in enforcement of their legal rights on the strength of a decree though by the date of the entry the date of the warrant had expired. This decision does riot countenance the argument of Mr. Sen that the Petitioners committed no offence of trespass. The informant was all along in possession. The Petitioners took the law into their own hands and forcibly ploughed the disputed land on the date of occurrence without any semblance, of right. The contention has no merit and is accordingly rejected.;

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