MULLA Vs. EMPEROR

JUDGEMENT

(1.) The facts found in this case are as follows. Suraj Kumar, a Brahmin and cultivator left his house on the 26th of December 1914. His intention was to catch a train and go into Cawnpore. He took the precaution of having his house carefully closed for the night. He returned, having missed his train, somewhere about 2 A.M. He found the door which had been securely closed wide open. He says that somewhere inside his house, he caught hold of Mulla, a gadaria, who was trying to escape and that on Mulla s person were certain jewels, the property of Suraj Kumar. This portion of the evidence has apparently been discredited by both Courts and for the purpose of this case this alleged fact may be omitted from consideration altogether. The accused, when he was caught by Suraj Kumar, said that he had gone inside the house in connection with an illegal intimacy with Suraj Kumar s aunt, who is said to be a widow.

(2.) The facts then that have to be faced are a complete stranger is found inside a Brahmin s house at 2 A.M. in the morning having entered that house by a door which the Brahmin had taken care to secure at night. He is inside the house and when discovered is trying to escape. He does not, when arrested by the owner of the house, make any statement to the effect that he is there with any lawful intent. The intent with which he went was a matter within his knowledge, the burden of proving that his intention was an honest intention lies upon him. In the present case he alleges that he went with the intention of pursuing an intimacy, I will not call it criminal just now, but an intimacy with a Brahmin widow. He is not able to establish that any illegal intimacy of any kind had existed at any time between him and the Brahmin widow. Looking to the words contained in Section 3 of the Evidence Act, I hold that both the Courts below were right in holding that it had been fully proved that the accused had committed lurking house trespass by night and that it is very doubtful whether they erred in holding that an offence under Section 457 had been established against the accused.

(3.) I am asked to interfere in revision against this conviction and sentence, because no offence under Section 457, Indian Penal Code, has been made out and the conviction is bad in law. A long and laboured argument has been addressed to me which really rests on this, at its strongest point, that it was for the prosecution to establish criminal intention and that until they proved that criminal intention the accused was entitled to an acquittal.