STATE Vs. BHANWARIA

JUDGEMENT

(1.) THIS is an appeal by the State against the order of Sub-Divisional Magistrate begu (Chittorgarh) dated 19th March, 1963 acquitting the respondent Bhanwaria bhil of Sukhpura of an offence under Section 448, Indian Penal Code.

(2.) THE prosecution case was that just before midnight intervening 11th December, 1962 and 12th December, 1962 the accused respondent entered the house of Jetia with an intent to commit the offence of theft. On account of his entry the oxen in the house of Jetia made some movements causing noise and there was also some noise on account of the rattling of the utensils. Balu, the nephew of Jetia heard the noise and he closed the door of Jetia's house from outside by bolting. It may be mentioned here that Jetia was not at his house, he having gone to some other place for kirtan, leaving behind his wife Sevu alone. Balu after closing the door went to inform Jetia. Jetia came to his house and opened the door from outside and found the accused inside the house. The accused wanted to get out from the house but he was not allowed to do so. He was shut up in the house, and a Police constable from a nearing Out Post Dhangramhow was called and the accused was arrested. The matter was eventually reported to the police and after investigation the accused was challaned for an offence under Section 457 Indian Penal Code. The Magistrate heard the preliminary arguments and recorded the statement of the accused. The accused admitted that he had entered the house of Jetia but he denied that he had the intention to commit theft. He admitted that he was arrested on the spot. He, however, added that he had been invited by Jetia's wife and on her invitation he entered the house of Jetia. He further added that he had been carrying on illicit intercourse with Jetia's wife for the last twelve months.

(3.) THE Magistrate framed a charge under Section 457 Indian Penal Code. After the evidence was recorded the Magistrate altered the charge to one under Section 448 indian Penal Code only. The prosecution examined seven witnesses to prove its case. The accused when examined under Section 342, Criminal Procedure Code, took the same stand. The Magistrate after discussing the evidence accepted the defence version and held that the accused entered the house with the tacit permission of Jetia's wife. He held that there was no proof that the accused had intended to commit the offence of theft. On this finding the Magistrate recorded a conclusion that the accused respondent 'did not intend to annoy the husband of the woman who had invited him. He on the contrary tried to avoid the husband'. Relying on the Full Bench decision in Abdul Majid v. Emperor, AIR 1938 Lah 534 (FB), he acquitted the respondent.