Authored By : James Quain Pigot, Banerjee

James Quain Pigot and Banerjee, JJ.

1. The prisoner has been convicted under Section 456 of theIndian Penal Code, and we are asked, in revision, to set aside the convictionas bad in law.

2. The complainant Brindabun is a labourer living atMusdail. The accused is a shopkeeper belonging to the same place. Brindabunsbari consists of two rooms, a north and south house or room. On the night ofthe 17th April 1895, Brindabun, his nephew and his brother slept in the southhouse. His mother, Bidya his wife [or who passes as such], his nephews wifeand his sister-in-law slept in the north house. About 10 or 11 the complainantheard cries from his mother from the womens room; the other women alsoscreamed out. Complainant came out and saw the prisoner jump down from theinside of the north house, ran up, and seized him.

3. It is not necessary to recite the other facts upon whichit has been found that the prisoner had got into the womens room on thisoccasion. His defence was that he had not gone there : that has beendisbelieved, and is out of the case.

4. The prisoners case has, of course, been presented to uswithout any dispute as to the findings of fact come to by the lower Courts; butit is contended that no offence is proved against him on the findings and onthe evidence.

5. The defence made by the prisoner in the lower Courtsbeing simply that he was not in the room at all, there was no attempt toexplain his presence there, as to which there is no doubt.

6. The suggestion made on his behalf before us is that hemust have gone to the room to carry on an intrigue with one of the women there;that if the woman he sought was Bidya no offence against the law wascontemplated by him, inasmuch as, although she calls herself and passes ascomplainants wife, it appears that she is not really his wife, but the widowof one Megha. It must appear to justify the conviction that prisoner enteredinto the room with intent to commit an offence; that is, something madepunishable by the-Penal Code; but an intrigue with Bidya would not be an offence,as she is not a wife. Another of the young women, who was in the room, Bidyassister, is also, it appears, a widow; and if prisoner went there to visit her,that would not be an offence against the law. Therefore, the intent of theprisoner may have been to do that which is not an offence under the law; andthat being so, he is not proved to have committed criminal trespass.

7. It is said that there is evidence from which theconclusion must be drawn that the prisoner must have got into the room with theassistance of some of the persons inside; and that this shows that he wentthere to carry on such an intrigue as is suggested.

8. The women, according to the evidence, went to bed betweenseven and eight. The old woman says she shut the door. Bidya says they were all"sleeping in the north house after having shut the door with alatch," which,, no doubt, means a bolt. She says "the door was shutfrom the inside."

9. There was no evidence showing any injury to the door orthe fastenings of it, and Lakapati said that, after her son went to the thana,she shut the door again; the inference is, therefore, that it was not injuredby having been violently broken open.

10. Now there is no evidence whatever against the characterof any of the women, except, no doubt, as to Bidya, that she passes as a wife,without having been actually married.

11. There is no proof that the door was so fastened that itcould only have-been opened by some one inside the room. There is no evidenceas to the structure of the bolt and its fastenings, or whether it could nothave been moved or removed from outside by some contrivance, without breakingopen the door. Indeed, there is no evidence that Lakapati did securely fastenthe door when they all went to bed. There is nothing to show that between thattime and 10 or 11 the door may not have been opened for some perfectly innocentpurpose by some of the women, while the fact of there being four women in theroom would render the supposition that some one of them admitted the accusedinto it for the purpose suggested in the argument a highly improbable one.

12. The point must be dealt with in some measure in the samemanner as it would be were it used in support of the commission of an offence,for it amounts to trying the character of some one or other of the young womenupon such evidence as has been referred to. They are people of humble position,but that cannot make the question of less importance, or change the conditionsunder which it is to be judged.

13. We think the facts do not justify the conclusion thatany of the inmates of the room admitted the prisoner for the purpose suggested,or at all. We are not entitled either to find or to presume that the prisonerwent to the room that night to visit a willing mistress.

14. The case, therefore, comes to this that, late at nightwhen the women were in bed (in one bed as is stated), the prisoner, a stranger,though a neighbour, went into the room where they were sleeping; that hisposition and all the facts preclude any notion of his going there to steal orfor any purpose save his own pleasure. We think the facts are good evidence ofan intent and of an intrusion on privacy within the meaning of Section 509 ofthe Indian Penal Code; and that, therefore, the intent to commit an offencewithin the meaning of Section 441 is made out.

15. We follow the ruling in Balmakand Ram v. GhansamramI.L.R. Cal. 391. We may observe that that ruling exactly coincides with theCriminal Revision Case No. 114 of 1881 before TURNER, C.J., and Kindersley, T.(Weir, 327).

16. We discharge the rule as to the setting aside of theconviction.

17. But we think 3 (three) months rigorous imprisonmentwill be a sufficient sentence; and we reduce the sentence to that amount.

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Premanundo Shaha and Ors. vs. Brindabun Chung (22.07.1895 -CALHC)