ISSREAL Vs. PATHROSE

JUDGEMENT

(1.) In this appeal, the first question that arises for determination is whether a person, who unlawfully enters into or upon the property in the possession of another so as to be guilty of a criminal trespass can be held to be guilty of the offence if he unlawfully continues to remain there with one of the intentions mentioned in S.441, IPC.

(2.) The facts of the case in brief are as follows: The accused 1 and 2 are husband and wife. They trespassed into the property by putting up a hut thereon while the property was in the possession of the complainant, who is examined as Pw 1. The alleged trespass was on 14-9-1968, as a result of which the Police prosecuted the accused 1 and 2 in C. C. 908 of 1968 and the court held the accused 1 and 2 guilty of that offence, thereby entering a conviction and sentence of one month's Rigorous Imprisonment on 18-7-1969 against them on each count under S.447 and 426 IPC. The accused 1 arid 2 underwent the imprisonment and came back upon the same property on 20-8-1969, when it is alleged that the accused 1 and 2 got into the hut by renovating it and continued to live there again. Pw 1 went over to the property, when it is alleged that the accused 1 and 2 threatened him by brandishing a knife. So, Pw 1 filed the private complaint on 21 8 1969 in C. C. 861 of 1969 which resulted in the acquittal of the accused 1 and 2 as the lower court found that it was a continuance of the earlier offence. It is against the acquittal that this appeal is filed by Pw. 1.

(3.) The present complaint was based upon a second trespass, destruction of tapioca plants and intimidation falling within the offences under S.447, 426 and 506(1) read with S.34 IPC. In support of the appellant's case, he has chosen to examine himself as Pw 1 and examined 3 more witnesses as Pws. 2 to 4. Pw4 was an Advocate Commissioner, who prepared Ext. P3, scene mahazar. The evidence is conclusive to show that the accused 1 and 2 are in possession of a hut in the disputed property. The fact that the present hut was seen erected in the same site in respect of which the trespass was committed in the former case is also admitted. Though Pws. 1 to 4 had been examined on the appellant's side, there was no indication, whatsoever, from the evidence to establish that except for a period of one month, when the accused 1 and 2 were in jail, they had discontinued their possession of the hut. Even during the said period of one month their case is that their children used to go and live in the hut. Any way, the hut was seen registered with the local Panchayat. Ext. D1 is an extract from the Register. Dw1 is the Executive Officer, It was seen that the registry was made in the name of the 1st accused. The original of Ext. D1 was registered in 1968. So, it is clear from the evidence on record that the accused had been in possession of the disputed property after the original trespass on 14-9-1958. No attempt had been made to prove any dispossession. Pw 1 had no case that he took over possession after the accused trespassed upon the property. The question for consideration is whether the accused could be convicted of the same offence under S.447 in respect of the second incident alleged to have taken place on 20-8-1969.