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1988 Supreme(Gau) 81
GAUHATI HIGH COURT
T.C.Das, J.
Imraisung Zeliang -Appellant
Versus
State of Nagaland -Respondent
Criminal Appeal No. 1 of 1988
Decided On : 24-05-1988
K.Meruno, U.Das
The prosecution must prove the essential ingredients of criminal trespass and mischief beyond a reasonable doubt, including the identity of the property in question, the intent of the accused, and the extent of the mischief caused.
Headnote:
CRIMINAL TRESPASS - SECTIONS 447/427 OF INDIAN PENAL CODE - PROOF OF INGREDIENTS - IDENTITY OF PROPERTY - MENS REA - ESSENTIAL ELEMENTS - INTERPRETATION AND APPLICATION.
Fact of the Case:
Four appellants were convicted and sentenced for criminal trespass and mischief under sections 447 and 427 of the Indian Penal Code. The prosecution alleged that they trespassed into a protected reserve forest, destroyed forest products, and started cultivation on the land. The appellants claimed they were allowed to cultivate the land by the Ex-Gaon Burah and had a bonafide claim to the property.
Finding of the Court:
The court found that the prosecution failed to prove the essential ingredients of criminal trespass and mischief beyond a reasonable doubt. The identity of the property in question was not established, and the prosecution did not provide sufficient evidence to show that the appellants had the necessary intent to commit the offenses. The court also held that the prosecution failed to prove that the appellants caused mischief to the extent of Rs. 50 or more, which is required for a conviction under section 427 of the Indian Penal Code.
Issues: 1. Whether the prosecution proved the essential ingredients of criminal trespass and mischief beyond a reasonable doubt. 2. Whether the identity of the property in question was established. 3. Whether the prosecution proved that the appellants had the necessary intent to commit the offenses. 4. Whether the prosecution proved that the appellants caused mischief to the extent of Rs. 50 or more.
Ratio Decidendi: 1. The court relied on the case of Nishikanta Das vs. State of Assam to establish the essential ingredients of criminal trespass. The court held that the prosecution must prove that there was entry into or upon a property in possession of another, that the person entering unlawfully remained upon the property, and that the entry or remaining was with the intent to commit an offense, intimidate, insult, or annoy the person in possession of the property. 2. The court found that the prosecution failed to establish the identity of the property in question. The agreement between the Tribal Council authority and the Government of Nagaland regarding the protected forest was not produced in court, and the prosecution did not provide sufficient evidence to show the actual area of the protected forest. 3. The court found that the prosecution failed to prove that the appellants had the necessary intent to commit the offenses. The appellants claimed they were allowed to cultivate the land by the Ex-Gaon Burah and had a bonafide claim to the property. The court held that even if their claim was ill-founded in law, they could not be held liable under section 447 of the Indian Penal Code. 4. The court found that the prosecution failed to prove that the appellants caused mischief to the extent of Rs. 50 or more. The prosecution did not provide any evidence to show that the appellants had the mens rea to cause mischief or that the value of the mischief was at least Rs. 50.
Final Decision: The court set aside the conviction and sentence of the appellants under both counts, sections 447 and 427 of the Indian Penal Code. The appellants were acquitted, and the appeal was allowed.
2. I have heard the learned counsel for the appellants as well as the learned Public Prosecutor, Nagaland on behalf of the respondent. My attention has been drawn to the impugned judgment and order dated 12. 8. 80 by the learned counsel for the appellants. In that context it is submitted that the learned trial Court didnot consider the evidence on record nor the facts as revealed from the evidence of P.W. 4 but in one sentence disposed of the case holding the accused persons guilty U/ss. 447/427, Indian Penal Code. The learned counsel for the appellants has also drawn any attention to the fact that the copies of the impugned judgment and order which were furnished to the appellants are different from that of the order as recorded in the case records dated 12.8.80 in respect of which an affidavit has also filed by the appellants stating the aforesaid fact. I have perused the copy of the judgment and order which is stated to be furnished to the accused-appellants and annexed as Annexure-'2' to this petition, I have myself noticed the discrepancy of both the orders. In this context I would like to say that while the accused persons are entitled to free copy of the judgment it is expected that correct copy of the judgment should be furnished to the accused. But in this case the copy which was furnished to the accused was not a true and correct copy as it appears from the impugned judgment and order dated 12.8.80, as recorded in the order sheet maintained by the Court.
3. Let me enter into the merit of the case. The prosecution examined
