K G VARGHESE Vs. ANNAMMA MARIAMMA

JUDGEMENT

(1.) In C. C. No. 151 of 1966 on the file of the Additional First Class Magistrate's Court, Pathanamthitta, the police charged the accused with an offence under S.447 of the Indian Penal Code in that they trespassed upon a property in the possession of pw. 1 with intent to intimidate and annoy pw. 1. 30 cents of land comprised in S. No. 220/1A belonged to the father of Pw.1. He sold the property to the 1st accused under Ext. D-l sab deed dated 26 5 1113. In the sale deed it is recited that possession is handed over to the 1st accused. The father of pw. 1 died in 1124 M. E. The prosecution case was that the father of pw. 1, and after his death, pw. 1 continued to be in possession and enjoyment of the property notwithstanding the sale deed, as the 1st accused was not in the station for well nigh 23 years and that they were effecting improvements in the property. 7 cents of property, adjoining the property sold, belonged to the Government. That property was obtained by pw. 1's father on 'kuthakapattom' and was also in his possession from 1123; and it was subsequently registered in the name of pw. 1. On 4 8 1965, the accused attempted to trespass into the property (37 cents). pw. 1 then submitted Ext. P-11 petition on 4-8-1965 to the Circle Inspector of Police, Pathanamthitta. The Circle Inspector directed pw. 1 to the Sub Inspector of Police, pw. 8 who on 4 8 1965 made enquiries into the petition and warned the accused 1 to 3 not to interfere with the possession of pw. 1 of the property. Thereafter, the 1st accused filed O. S.357 of 1965 on the file of the Munsiff's Court, Pathanamthitta, against pw. 1 to restrain him by an injunction from entering into the property. pw. 1 appeared and opposed the application for interim injunction and the court passed an order on 7 8 1965 stating that "the parties will maintain status quo". On the night of 8 8 1965, accused 1 to 3 trespassed into the property and put up an old hut in the western portion of the 37 cents of land. On 8 8 1965 pw. 1 gave the first information statement, Ext. P1 (a) to the Pathanamthitta Police. The police investigated the case and filed the charge against respondents to this petition and four others.

(2.) The learned Magistrate after an evaluation of the evidence in the case came to the conclusion that pw. 1 was in possession of the property notwithstanding the sale deed in favour of the 1st accused and that the accused trespassed into the property as alleged by the prosecution, but that the accused did not commit the offence of criminal trespass as the dominant intention of the accused was not to intimidate, insult or annoy, but to establish the claim of the 1st accused to the property. The court below has relied upon the ruling of the Supreme Court in Mathri v. State of Punjab 1964 (2) CriLJ 57 in support of the proposition that what the court has to look into in a case like this is the dominant intention of the party making the entry.

(3.) Mr. K. George Varghese, appearing for pw. 1, the petitioner, submitted that the court below having found that pw. 1 was in possession of the property went wrong in searching for the dominant intention of the accused for deciding the question whether the entry of the accused into the property constituted criminal trespass or not. His argument was that even if the accused entered into the property with the object of establishing the claim of the 1st accused to the property, that was only their motive, that motive is different from intention, that intention is the desire to bring about a particular result or to bring about a result with the foresight that the result would be brought about and that that is different from motive which is the purpose of doing an act and that the fact that the motive of the accused was to establish a claim to the property would not exonerate them from criminal liability.