Principles

·  Criminal Law—Lurking house trespass to commit offence punishable with imprisonment—Intent provable by all circumstances—Penal Code, s. 396

The purpose of the accused to commit an offence punishable with imprisonment when he commits lurking house trespass by night may be inferred from all the circumstances under Penal Code, s. 396.
 

Judgment

      M. E. Mobarak P.J. February 24, 1963 :—The two appellants were on February 11, 1963, tried and convicted by Abdulla Ahmed Eisa under Sudan Penal Code, s. 396, and each was sentenced to imprisonment for four months as from date of conviction and £S.10,000m/ms fine and in default of payment to imprisonment for a further term of one month.

      On appeal by the two appellants I confirm findings and sentences.

I was a little worried about the strict proof of the intention to commit an offence but on referring to 4 Gour, Penal Law of India 2390 (7th ed., Verma and Subrahmanyan, 1962), I find the following commentary:

      “The question with what intention the accused entered the house must be inferred from circumstances. The fact that the entry was made late at night would be such a circumstance and if unaccounted for, it would warrant an inference that it was for some illegal purpose. And what that purpose must be would then have to be discovered by a process of elimination. For instance, if the accused was a well-to- do man, and the complainant comparatively poor, it may be presumed that his object was something other than theft. Now, if he entered a room containing a young woman, the intruder might be presumed to have entered to gratify his carnal appetite. This would bring his case up to section 456. And it may stop short there if the evidence fails to show that the accused had singled out some one out of the inmates, cohabitation with whom would be adultery.”

      In this case it seems clear that the two accused did not go into the house of the school mistresses for the purpose of theft. The intention, it is clear, was to gratify carnal appetite.

      On perusal of your record of trial I have the following comments to make:

(a) I always prefer to have the examination of the accused under Sudan Penal Code, s. 218, before the framing of the charge. Such examination will enable the magistrate to discharge the accused before the framing of a charge in the case if he is satisfied that the explanation made by the accused is satisfactory and convincing. In this case the charge was framed before examining the two accused. I refer you in this respect of this matter to Criminal Court Circular No. 11, part II, dealing with non-summary trial by magistrate of the first class and second class, procedure, paragraph 2, sub-paragraphs (iii) and (iv).

(b) In this case both accused pleaded not guilty. Under such circumstances the magistrate will ask the accused whether he wishes to cross-examine any, and if so which, of the witnesses for the prosecution whose evidence has been taken. Any of these witnesses named by the accused will then be recalled and after cross-examination, if any, will be discharged (Criminal Procedure Code, s. 151). This procedure was not followed in this case.

(c) The judgment of the court, i.e., brief narratives of the facts and reasons for finding, is recorded immediately after the finding. In this case I find that notes on the previous convictions of the two accused, their

statements in mitigation and the magistrate’s note on sentence were entered in the record immediately after the court’s finding and before the judgment.

(d) In this reason for finding, the trial magistrate stated that each of the two accused had committed the offence of breaking twice, in that he entered (1) into the school hosh and (2) into the gutiya where P.W. 2, Nagat Mohamed El Khidir, P.W. 3, Habeeba Mohamed Dafalla and P.W. 4, Fatma Mohamed Gabrel Dar were asleep. Once an accused person breaks into and gets inside a house the offence of house breaking is complete and is not repeated or multiplied by his entering into different apartments inside the same house.

      I agree with you that the offence committed by the accused is serious in many respects. In this case the two young school mistresses (aged respectively seventeen and twenty years) lived together and slept in one room with the school headmistress (fifty years). These three women are guarded by an old Ghaffir, Mahmoud Ahmed Higeir, who is about sixty years of age. Under such circumstances it is the duty of the court, when it is established that someone had stealthily entered in the dead of the night into these women’s apartment, to impose sufficiently deterrent punishments so as to protect not only the bodies and property of the school mistresses but also their reputation.