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Present: De Sampayo A.J.
DE VOS ERNST.28&—P. C. Matara, 3,146.
Criminal trespass—Entering the room of a lady by night for immoralpurpose—Intention to intimidate, insult, or annoy.
A person who climbed up about mid nigh! into the sleepingapartment of a young lady with the object of carrying out someimmoral purpose was held (in the circumstances) to have beenguilty of criminal trespass.
"If in such circumstances the accused intended to make improperproposals in which he could not possibly have hoped to succeed,and which he must have known would be resented by the young
‘ lady, then it is quite plain he thereby primarily intended tointimidate, insult, and annoy the young lady by such proposals."
fJ^HE facts -are set out in the judgment.
A. St. V. Jayewardene, for the accused, appellant.—The factsdisclosed do not prove that the accused had any intention to inti-midate, insult, or annoy. The only intention of the accused wasto carry out some immoral purpose. It has been held that anentry into a house for such a purpose does not constitute criminaltrespass. See Veronia v. Santia;1 Balmakand Ram v. Ghansam-ram;2 Queen Empress v. Rayapadayachi;3 Mayne’s Criminal Law,section 577.
The inteiit mentioned in section 427 is the primary or main intent.Pitche Bawa v. Abdul Cader* See also In re Gobind Prashad.s Inthis case the primary or main intent is not to annoy or insult.
H. B. Koch, for respondent.—Intention to intimidate or annoywill be presumed from foreknowledge that intimidation or annoyancewill be the natural result of an act. Suppaiya i?. Ponniak et aJ.*The accused must have known what the result of his act would be.
May 15, 1912. Db Sampayo A.J.—
The case for the prosecution was that the accused on April 15,1912, about midnight, climbed up from the street into a certainhouse at Matara and entered by the window an upper room in which
Cur. adv. vult.
7 S. C. C. 35.
(1894) 22 Cal. $91.3 (1336) 29 Mad. 240
* (1909) 3 S. C. D. 47.s (1879) 2 All. 465.
« 0909) 14 N. L. R. 475 4 Bal. 157.
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1M2. two young ladies—Miss de Vos and Miss van der Smaght—were thenDb Sampayo sleeping; that he stooped over Miss de Vos’s bed, touched her arm,AJT. and whispered something to her; that he bent over Miss van derDe Voa v. Smaght and touched her on the arm; and that the young ladiesBrn$t being greatly frightened set up cries of alarm, thereupon theaccused jumped out again and escaped into the street. The accusedwas accordingly charged with the offence of house trespass undersection 434 of the Penal Code, and whs convicted and sentenced tothree months’ rigorous imprisonment. It was contended for theaccused in appeal that there Was not sufficient identification of theaccused as the person who was found in the bedroom on the nightin question. The young ladies, it was argued, had not reallyIdentified the accused at the time, but had subsequently discussedthe question between them and hit upon the accused as the likelyperson. There is no good ground for this suggestion. On thecontrary, I find their evidence is very restrained and moderate.Miss van der Smaght did not recognize the accused, and said so inher evidence, only adding that the man was one like the accused.Miss de Vos, who was the first person roused, and had better meansof identification, was quite sure that the accused was the man. Anayah, who came up at the uproar and went out of the house to lookfor the person who had just escaped, saw the accused in the streetwalking away with another man. There were certain minor con-tradictions which have been dwelt on as falsifying the evidence ofthese witnesses, but all these were urged -in the Police Courtand fully considered by the Magistrate, and he, in a well-consideredjudgment, has found that the accused was the person who com-mitted the trespass. I have no reason whatever to differ from himon this point.
It was next contended that the charge failed because the intentionto intimidate, insult, or annoy as required in the definition of theoffence had not been proved. It was not denied that the naturalconsequence of the accused’s conduct was to intimidate, insult,and annoy the young ladies, but it was urged that his primary andulterior intention, which must alone be taken into account, wasnone of these things, but to carry out some immoral purpose. Anumber of decisions of the Indian Courts was cited to me on thispoint, but all these and many other Indian decisions were carefullyexamined by Wood Benton J. in Suppaiya v. Ponniah et al. ,l andhe expressed the view, in which I may be allowed to say I entirelyconcur, that we should not easily whittle away the law by curiousrefinements as to the primary or secondary intention of a trespasser,but that in criminal trespass, as in other cases, we should applythe ordinary rule of law and of common sense, that a man mightfairly be held to have intended the natural consequences of hisacts. Mr. A. St. V. Jayewardene, for the appellant, also cited to1 U909) 14 N. L. R. 475 ; 4 Bat. 157.
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me the case of Pitche Bawa v. Abdul Cadet ^ in which HutchinsonC.J. remarked that “ the intention mentioned in section 427 is theprimary or main intention The circumstances of that case areentirely different from this. The question after all is one of fact,and the learned Chief Justice himself gave the warning that we mustnot go by a rule of thumb but must examine the evidence in eachcase as to the real intention of the person charged. Now, lookingat the case in this way, I have not the slightest doubt on theevidence that the accused's real intention was to intimidate, insult,and annoy. Take even what is said to be the ulterior motive of theaccused. Here are two young ladies of respectability, refinement,and character; one is seventeen years and the other twenty years ofage; they are socially total strangers to the accused; and the accused,a Burgher young man, but at the time wearing a cloth and banian,stealthily climbs up to their bedroom at dead of night and rousesthem from sleep and behaves in a manner to outrage their modestyand cause them serious alarm. If in such circumstainces the accusedintended to make improper proposals in which die could not possiblyhave hoped to succeed, and which he must have known would be. resented by the young ladies, then it is quite plain to me he therebyprimarily intended to intimidate, insult, and annoy the young ladiesby such proposals. I may add that the remarks of Lawrie J. inVeronia v. Santia2 are quite £n accord with what I have just said.
In my opinion the conviction and sentence are right, and Idismiss the appeal.
Appeal dismissed. 1
De Voe v.Ernst
1 (19C9) 9 S. C. D. 47.
*7 8. C.. C. 96.
DE VOS v. ERNST