EMPEROR Vs. MULLA

JUDGEMENT

(1.) The facts found in this case are as follows : Suraj Kumar, a Brahman and cultivator, left his house on the 26th of December, 1914. His intention was to catch a train and go to 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 Mullo, a gadariya, who was trying to escape and that on Mullo 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. The facts then that have to be faced are that a complete stranger is found inside a Brahmin 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 docs 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.

(2.) I am asked to interfere in revision against this conviction and sentence, because no offence under Section 457 of the 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.

(3.) The learned vakil who appeared for the applicant took his stand upon the case of Emperor v. Jangi Singh (1903) I.L.R. 26 All. 194, and drew my attention, in particular, to the words to be found in this ruling at page 195. "His intention possibly was to obtain possession contrary to law, but this of itself would not constitute criminal trespass. Proof of an intention to commit an offence or to intimidate, insult or annoy was necessary. There was no evidence of any such intention, or from which such an intention might be reasonably inferred." The facts of that case are somewhat peculiar. A zamindar had a quarrel with an occupancy tenant and when he was absent from the village by reason of ill-health he induced the patwari to record that the occupancy tenant had left the village and abandoned his holding and therefore took possession of it. The learned Chief Justice who decided Emperor v. Jangi Singh evidently arrived at the conclusion that the facts found in this case were not sufficient to establish a prime facie case of criminal trespass and it was necessary to consider further what was the intention of the zamindar who entered on this occupancy holding.