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Present ; Pereira J.
KANTHAPPU w. ARTJMUGAM679—P. C. KayUt 21,386
Criminal trespass—Assertion of right—Entry having the effect of intimi-dating or annoying.
An essential element of the offence of criminal trespass is theintention to intimidate, insult, or annoy persons in occupation .ofthe land entered, and so where the object of a person in entering. *into a parcel of land was the assertion .of a right, the mere fact thatthe actual assertion of that right had the effect of intimidating,insulting, or annoying the occupant did not convert the originaPentry into one with the intention mentioned above.
rpHE facts appear from the judgment.
H. J C. Pereira and Selvadurai, for accused, appellant.—Theaccused was merely acting in the exercise of a bona fide assertionof right in preventing the complainant’s servant from digging upthe sfon.es in the land in dispute. It cannot be said that he actedwith the intention of intimidating or insulting or annoying thecomplainant or his servant.
H„ A. Jayewardene (with him Wadsworth), for the respondent.—The land was in the possession of the complainant. If the accusedwanted to assert his right he should have, gone to Court, and notdisturb the possession of the complainant. It is not necessary thatthe prosecution should prove that accused had an intention tointimidate or annoy the complainant. The Court will presume thatthe accused knew what the consequences of his act would be.Counsel cited Suppiah v. Ponniak.1
Cur, adv. vult.
October 3, 1913.*' Pereira J—.
In this case, having read and considered the evidence carefully,
I am not prepared to say that the object with which the accusedentered upon the land referred to by the complainant was not abona fide assertion of right. According to the evidence of the policeheadman, there is some low ground between the complainant's landand the land to the north of it, and an important fact is that thislow ground “ is in dispute between the complainant and accused. ”So says the headman. – He further says: “ The first accused saidthat the part where the stones were dug' was part of the low ground,
1 (1909) 14 N. L. if. 475.
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and should not be touched. He did not claim it as his. ” A pointis made by the prosecution of this last sentence, but it counts fornothing in view of what the headman has already said, namely,that the low ground “ is in dispute between the complainant andthe accused. ” The Magistrate, who visited the spot, says that theplace where the stones were dug lies to the south of the low groundas far as its limits can be seen, and he holds in his judgment thatthere are parcels of land on the north and south belonging to theaccused and the^ complainant, respectively, and that between thetwo lies a piece , of land “ about the ownership of whiGh there is along-standing dispute. Now, the crucial question – is not whetherthe exact spot where the stones were dug was in the possession ofthe complainant, but with what mental attitude the accused inter-fered with the complainant in digging up the stones. An essentialelement of the offence of criminal trespass is the intention to intimi-date, insult, or annoy persons in occupation of property entered.Now, it is dear that, apart from his object of preventing thecomplainant’s servant from digging up stones, and thus preventingan interference with his own real or fancies rights, the accused hadno inducement to enter upon the land referred to. It is not suggestedthat he had anything to gain by merely molesting the complainant'scooly. If the entry into the land was with the intention of assertinga right, th$ mere fact that* the assertion of that right had the effectof intimidating, insulting, or annoying the . occupant dees notconvert the original entry into one with the intention of intimidating,insulting, or annoying the occupant. I think, that in view of thefacts found by the Magistrate, that there has been a long-standingdispute between the complainant and the accused in connection,with the low-lying land between their respective properties, and' that the spot where the stones were dug was in this low-lying land,or somewhere in the vicinity, it is impossible to say that the accuseddid not enter on the spot in the assertion of what he believed washis right. I set aside the conviction and acquit the accused.
KANTHAPPU v. ARUMUGAM