STATE Vs. GIAN CHAND

JUDGEMENT

(1.) A short point is involved in this appeal as to whether after having held by the trial court that the accused persons had committed tresspass, whether the tresspass was civil or criminal tresspass. The trial court has termed it as a civil tresspass, and the learned Chief Government Advocate assails this finding on the ground that there was sufficient evidence on the record to show that the accused had annoyed threatened and intimidated the complainant, therefore it would be criminal tresspass. According to him ingredients of sec. 441 RPC which defines tresspass are fully established in the case and therefore the accused persons were not entitled to be acquitted. The finding of the trial court is also that the complainant was in possession of the land in questions on the date of occurrence and the accused person had tresspassed into it. Mr R. N. Bhalgotra appearing for the accused has attempted to assail this finding of the trial court but we are afraid that he cannot assail this finding because he has taken benefit of this finding.

(2.) WE examined the record and heard the learned counsels for the parties.

(3.) THE authority relied upon by Mr, Bhalgotra viz Kot Singh Vs. State AIR 1965 J & K 90 is not at all applicable to the facts of this case. In that case there was a finding given by the Honble Judge that there was no suggestion on the part of the prosecution that the bullocks were unyoked by the accused with a view to take forcible possession of the land. Facts of that case reveal that the complainant had gone into the filed and unyoked the bulloucks without causing any intimidation or annoyance to the complainant. This authority is in turn based on a Supreme Court authority viz. Smt. Mathri and others Vs The State of Punjab AIR 1964 S. C. 986, The facts of this authority are that warrants of delivery of possession of land which had ceased to be executable after the expiry of the date fixed for execution were taken by the person in whose favour the warrants were issued and he had gone to the land with such warrants it was held by the Supreme Court that the person in whose favour the decree was passed had a bona fide claim over the land, the only mistake committed by him was that he had gone there with the said warrant after the expiry of the date without reffering it to the agency who could have executed the same. On the facts of that case the accused having a decree in his favour granted by a civil court, their Lordships of the Supreme Court held that ingredients of sec. 441 I P. C. were not proved.