KESHAVA BHANDARY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE two appellants before me who are residents of Bajal Village on the outskirts of Mangalore City, are alleged to have assaulted P. W. 1-Henry Ferrao at about 5. 30 p. m. on 4-9-1988 with a 'kathi' or rather a knife and it is alleged that as a result of the injury inflicted on the abdomen of P. W. 1 that the intestines were protruding and that he had to be rushed to hospital for medical treatment. I need to clarify here that the dispute is alleged to have arisen over the question as to who is the original owner of the bund or katte between the adjoining lands and that as far as accused 2 is concerned, even though he did not physically take part in the assault that he aided and abetted accused 1 in the incident by making certain provocative statements to the effect that accused 1 should cut Ferrao to pieces. The Trial Court convicted both the accused for the offences under Sections 447 and 307 of the Indian Penal Code and as far as accused 2 is concerned, he was convicted principally by applying Section 109 of the Indian Penal Code on the ground that he had abetted the offences. The Court took a serious view of the incident and imposed jail sentences of five years rigorous imprisonment and fine of Rs. 5,000/- and Rs. 4,000/- respectively. The present appeal is directed against this conviction and sentence.

(2.) SINCE the appellants were not represented, this Court appointed learned Advocate Mr. B. V. Pinto as Amicus Curiae on their behalf. I have heard the learned Advocates on both sides and reviewed the entire record for purposes of deciding as to whether the conviction is liable to be upheld. In the first instance, what is demonstrated to me by the appellants' learned Advocate and which is really an unanswerably argument is the fact that it is condition precedent for an offence under section 447 of the Indian Penal Code that it must be demonstrated that the entry or the activity complained of is an act of trespass which again presupposes the fact that the property must be shown to have belonged or to be in the exclusive possession of the complainant. According to the prosecution, the accused was cutting grass that was growing on the divider between the fields and it is the case of P. W. 1 that this particular area belonged to him. Mr. Pinto points out to me even from the admissions of P. W. 9 that there were certain conventions or understandings in relation to adjoining lands and as per those prevailing that it was the accused who had every right to contend that he was entitled to look after or maintain the bund. It is necessary to clarify that this Court is not either deciding or laying down as to which of the parties is the rightful owner or possessor but what Mr. Pinto demonstrates is that before alleging an act of criminal trespass the reverse ought to be demonstrated namely that the accused had no right to be on the bund or to cut the grass that was growing there. Furthermore, what he points out is that even though P. W. 1 has contended that it was his exclusive domain, that he has not been able to demonstrate this from any documentary evidence such as land records nor has the prosecution examined any of the local authorities in support of this plea. The learned Government Advo-cate submitted that P. W. 1 has pointed out a convention that prevailed in that area according to which that land was deemed to be in his possession and it was therefore submitted that the accused was a trespasser and has rightly been convicted.

(3.) THERE is a basic error in the conclusion arrived at by the Trial Court insofar as what has been overlooked is that the land that divides two properties is invariably treated as no-man's land and in the absence of evidence to the contrary, this is really the position that would prevail. If the area in question belongs to one of the parties then, the onus of proving this lies on that party. In the absence of such proof, a Court will regard the dividing land as an area which is accessible to all persons using the fields and furthermore that the access to such areas is required to be thrown open. The fundamental ingredient of the offence of trespass is the concept of privacy and it is the illegal encroachment on this privacy that makes the act punishable. On the facts of the present case, there is nothing on record to indicate that the land between the two fields belonged to P. W. 1 or for that matter that accused 1 was prohibited from either entering that area or cutting grass and consequently, the conviction of accused 1 for the offence punishable under section 447 of the Indian Penal Code will have to be set aside.