SUWA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition is directed against the judgment dated 15th Sept., 1982, passed by the Sessions Judge, Pali, confirming the judgment of the Judicial Magistrate, Sojat, dated 27th June, 1980.

(2.) Khivraj filed a complaint under Sections 379,454 & 461 of the Indian Penal Code against the petitioner, in the court of Judicial Magistrate, Sojat. After trial, the learned Magistrate found the petitioner guilty of offence under Section 448, Indian Penal Code and instead of sentencing her to any imprisonment, ordered to release her on probation. Against that order, an appeal was preferred, but, the learned Sessions Judge, Pall, dismissed the said appeal and confirmed the order of the learned Magistrate.

(3.) Mr. Singhvi argued that the offence under Section 448 of the Indian Penal Code, is with regard to house- trespass. According to him, every house-trespass is not an offence, and that it has to be established and proved by the prosecution that the real and dominant intention of the entry was to commit an offence, or insult, intimidate or annoy the occupant. In support of his argument, he cited the case of Jawanmal v. Mst. Bhanwari, a division bench decision of this Court. Therefore, no doubt, a house-trespass is punishable under Section 448 of the Indian Penal Code, but, it must be proved by the prosecution that the trespass was a criminal trespass with the intention to commit an offence, or insult, intimidate or annoy the occupant. In the present case, the disputed house belonged to one Pannalal. The petitioner is the daughter of Pannalal. Pannalal is said to have adopted one Pukhraj. Mst. Dhapu is the wife of Pukhraj and it is said that Mst. Dhapu created a will in the name of Tarachand, who is the son of Khivraj. So, the dispute of the complainant is that the disputed house belonged to Pannalal, but, later on, through the alleged will, it has come in the name of Tarachand, his minor son. It is not the allegation of the complainant that he is in possession of the house under his own ownership. It is also not disputed that Mst. Suwa petitioner is the daughter of Pannalal. From the evidence on record produced by the complainant, it is clear that Mst Suwa used to live in the house in dispute even during the lifetime of Pannalal and also after his death. It is also in the evidence that after adoption of Pukhraj, he resided in the said house with his wife Mst Dhapu. Khivraj is the son-in-law of Pukhraj, and he claims ownership over this house, through a will, so, the dispute between Khivraj and Mst. Suwa is of civil nature. From the evidence, it seems that both the parties are in possession of the disputed house, and it is for the parties to establish their case in an appropriate civil court. In the case of a house-trespass, one has to prove that the entry was to commit an offence, or insult, intimidate or annoy the occupant. Khivraj is not the sole-occupant of the house in question. Mst. Suwa was also occupant of a part portion thereof. So, it cannot be said that even if a trespass has been committed by Mst. Suwa, that was a criminal trespass. Unless, it is established that the trespass was of criminal nature with the intention the commit an offence or to insult, intimidate or annoy Khivram, the conviction under Section 448 of the Indian Penal Code is bad. In the case of Ram Ekbal Rai & ors. v. Jaldhari Pandey, wherein a theft was committed and the question was of possession of land and crop on the date of incident not beyond controversy, the conviction and sentence under Section 379 of the Indian Penal Code were held to be bad.