FAKIR CHANDRA DE Vs. EMPEROR

JUDGEMENT

(1.) The three petitioners have been convicted of an off nee punishable under Section 452, Indian Penal Code, and sentenced to one month's rigorous imprisonment and fine of Rs. 50 ach. The first petitioner, Fakir, has been convicted of an offence punishable under Section 379, Indian Penal Code, and sentenced to pay a further fine of Rs. 100

(2.) The Rule was issued calling on the District Magistrate to show cause why the conviction under Section 452 should not be altered to one under Section 448, why the conviction of Fakir under Section 379 should be not be set aside, and why the sentence of imprisonment passed on the petitioners should not be modified or altered Neither the Trying Magistrate nor the learned Sessions Judge who heard the appeal have given their reasons for holding that Section 452, Indian Penal Code, is applicable to the facts of the present case. On the findings there can be no doubt that house treaspass was committed, since it is found that the three accused entered the verandah of the complainant's house and draged him out. But no further fact is found from which it can be held that the accused committed horse trespass having made preparation for causing hurt to any person or for assaulting any person. From the charge framed it would appear that the Trying Magistrate misunderstood the provisions of Section 452 since it charges the accused with having trespassed into the shop of the complainant for the purpose of assaulting the complainant. This being established would not be sufficient to support a conviction under Section 452, though it might be for a conviction of the three petitioners under Section 448, Indian Penal Code.

(3.) As regards the conviction of the petitioner Fakir under Section 379, Indian Penal Code, it is found that he took away the complainant's bicycle from his shop. There are also findings in the judgment of the Trying Court that this was done dishonestly. The defence was that the bicycle was not taken from the shop. We see no reason to hold that the taking of it was not dishonest. We, therefore, see no necessity for altering the conviction under this section.