No offence of trespass committed by husband.

This is revision petition by the accused. The accused is the husband and the complaint P.W. 1 is his wife. The accused is a clerk under the Railways department, living at Podanur. P.W. 1 is a teacher living at Madurai. Of the wedlock, they had two children who are now living with their mother. Both the husband and wife were living together till 23rd September, 1983.

2. The elder brother of P.W. 1, who is a Christian married on 24-1-1973 a Muslim girl, nurse by profession. The whole family was against that marriage. But the accused gave his blessings to the marriage and even signed the document evidencing the same. On 4-9-1983, the elder brother of P.W. 1 contracted another marriage. A complaint of bigamy was filed by the first wife who has been examined in this case as D.W. 1 and in that complaint the first wife cited the accused as one of the witnesses to be examined.

3. Under the circumstances, the case of the prosecution is that, the husband came all of a sudden on 1-11-1983, to the house of the wife, beat her, fisted her on the left cheek, dashed her against the wall several times, squeezed her neck. He was prevented from inflicting further injuries by P.Ws. 3 and 4, and he left the place threatening his wife of death.

4. Upon the investigating officer filing a report under section 173 Cr.P.C. that offences under Sections 448, 323, 427 and 506(2) appeared to have been committed by the accused, charges were framed accordingly the trial court convicted the accused under all these sections and sentenced the accused to rigorous imprisonment for three months for each offence, the sentences being ordered to run concurrently. On appeal, by the accused, the accused was acquitted under S. 427 but the conviction and sentence for other offences were confirmed.

5. The learned counsel for the revision petitioner contended that in the husband coming to the house where his wife was residing when there was no judicial separation nor any other order of a competent authority banning him from entering the conjugal house, there cannot be any offence under S. 448 learned counsel appearing for the Public Prosecutor fairly conceded that an offence under S. 448 has not been made out in this case.

6. In respect of the offence under S. 323 I.P.C, it was contended on behalf of the revision petitioner that in the absence of any injury there cannot be any conviction under S. 323, I.P.C. The learned counsel appearing for the Public Prosecutor replied that P.W. 1 has complained of pain and that the same was sufficient to sustain the conviction under S. 323 I.P.C. But though P.W. 1 complained of pain before the Doctor, she did not come forward before the court while tendering evidence that she had pain after she was attacked by her husband. But the fact that the husband has used intentionally force against his wife without her consent knowing that use of such force was likely to cause injury, is clearly proved, by the evidence of P.W. 1, the complainant, as well as P.W. 2 the child witness. Therefore, the accused will be liable for an offence not under Section 323 but under S. 352 of the Indian Penal Code.

7. As far as the offence under Section 506(2) is concerned, the learned counsel for the revision petitioner contended that the threat was not a real one, that it was of the kind of words which are currently and frequently used by people when they are angry and that further the threat was not spoken to by P.W. 3 and P.W. 4 who by that time had already come to the scene of occurrence. It is, in fact, found from the records that the threat would have been lashed out after P.Ws. 3 and 4 came to the place and separated both the husband and wife. Therefore, the evidence of P.W. 1 should have been corroborated by the evidence of P.W. 3 and P.W. 4 who were necessary witnesses to the occurrence. Since they did not corroborate the testimony of P.W. 1 in this aspect, the offence cannot be held to be proved. Further for being an offence under Section 506(2)