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PETITIONER: CHERUBIN GREGORY

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 31/07/1963

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SHAH, J.C.

CITATION:  1964 AIR  205            1964 SCR  (4) 199

ACT: Criminal trial-Trespasser-Duty of owners towards trespassers Indian Penal Code S. 99, 103, 304A.

HEADNOTE: The  appellant  was charged under s. 304-A of  Indian  Penal Code  for  causing the death of a woman.  The  deceased  was residing  near  the house of the accused.  The wall  of  the latrine of the house of the deceased had fallen down about a week  prior  to the day of occurrence and  so  the  deceased along with others started using the latrine of the  accused. The accused protested against their coming there.  The  oral warnings  however, proved ineffective and so he fixed  up  a naked  copper  wire  across the  passage  leading  upto  his latrine  and that wire carried current from  the  electrical wiring of his home to which it was connected.  On the day of the  occurrence,  the deceased went to the  latrine  of  the appellant and there she touched the aforesaid fixed wire  as a  result of which she died soon after.  The trial  and  the appellate court convicted and sentenced the appellant  under S. 304A of the Indian Penal Code.  Hence this appeal. 200 Held  :  (1)  The plea of the right of  private  defence  of property was not sustainable for the reason that the type of injury  caused by the trap laid by the accused could not  be brought  within  the purview of S. 99 or 103 of  the  Indian Penal Code. (2)  A trespasser was not an outlaw, a caput  lupinem.   The mere  fact that the person entering a land was a  trespasser did  not  entitle the owner or occupier to  inflict  on  him personal  injury by direct violence and the  same  principle would  govern the infliction of injury by  indirectly  doing something  on the land the effect of which he must know  was likely to cause serious injury to the trespasser.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  3  of 1962. Appeal  by special leave from the judgment and  order  dated

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September  20,  1961  of the Patna High  Court  in  Criminal Appeal No. 124 of 1960. D. Goburdhan, for the appellant. S.P. Ferma, for the respondent. July 31, 1963.  The judgment of the Court was delivered by AYYANGAR  J.-This is an appeal by special leave against  the judgment of the High Court of Patna dismissing an appeal  by the appellant against his conviction and the sentence passed on him by the Sessions Judge, Champaran. The  appellant was charged with an offence under S. 304A  of the  Indian  Penal Code for causing the death  of  one  Mst. Madilen by contact with an electrically charged naked copper wire  which he had fixed up at the back of his house with  a view  to  prevent the entry of intruders into  his  latrine. The  deceased Madilen was an inmate of a house near that  of the  accused.  The wall of the latrine of the house  of  the deceased  had fallen down about a week prior to the  day  of the  occurrence-July  16,  1959, with the  result  that  her latrine had become exposed to public view.  Consequently the deceased  among  others, started using the  latrine  of  the accused.   The  accused resented this and made it  clear  to them  that  they did not have his permission to use  it  and protested  against their coming there.  The  oral  warnings, however, proved inef- 201 fective  and  it was for this reason that on the  facts,  as found by the courts below, the accused wanted to make  entry into his latrine dangerous to the intruders. Though  some  of the facts alleged by the  prosecution  were disputed  by  the  accused, they are now  concluded  by  the findings  of  the  courts below and are no  longer  open  to challenge and, indeed, learned Counsel for the appellant did not  attempt to controvert them.  The facts, as  found,  are that  in  order to prevent the ingress of persons  like  the deceased  into his latrine by making such ingress  dangerous (1)  the accused fixed up a copper wire across  the  passage leading up to his latrine, (2) that this wire was naked  and uninsulated  and carried current from the electrical  wiring of  his  house to which it was connected, (3) there  was  no warning that the wire was live, (4) the deceased managed  to pass  into the latrine without contacting the wire but  that as she came out her hand happened to touch it and she got  a shock  as a result of which she died soon after.   On  these facts  the Courts below held that the accused was guilty  of an offence under s. 304A of the Indian Penal Code which  en- acts : "304A.  Whoever causes the death of any person by doing  any rash  or  negligent act not amounting to  culpable  homicide shall  be punished with imprisonment of  either  description for  a term which may extend to two years, or with fine,  or with both." The  accused  made a suggestion that the deceased  had  been sufficiently  warned  and  the  facts  relied  on  in   this connection  were two : (1) that at the time of the  accident it was past day break and there was therefore enough  light, and  (2)  that an electric light was burning  some  distance away.   But  it  is manifest that  neither  of  these  could constitute  warning  as  the conditions of  the  wire  being charged  with  electric current could not obviously  be  de- tected merely by the place being properly lit. The  voltage of the current passing through the  naked  wire being  high enough to be lethal, there could be  no  dispute that  charging it with current of that voltage was  a  ’rash act’ done in reckless disregard of the serious  consequences to people coming in contact with it.

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It might be mentioned that the accused was also cliar- 14--2 S. C. India/64 202 ged before the learned Sessions Judge with an offence  under section 304 of the Indian Penal Code but on the finding that the  accused  had  no intention to cause the  death  of  the deceased he was acquitted of that charge. The principal point of law which appears to have been argued before  the  learned judges of the High Court was  that  the accused had a right of private defence of property and  that the  death was caused in the course of the exercise of  that right.  The learned judges repelled this defence and in  our opinion,  quite correctly.  The right of private defence  of property which is set out in s. 97 of the Indian Penal  Code is,  as  that  section  itself  provides,  subject  to   the provisions  of  s. 99 of the Code.  It is obvious  that  the type of injury caused by the trap laid by the accused cannot be  brought within the scope of s. 99, nor of course  of  s. 103 of the Code.  As this defence was not pressed before  us with  any seriousness it is not necessary to deal with  this at more length. Learned  Counsel,  however,  tried  to  adopt  a   different approach.   The  contention  was that  the  deceased  was  a trespasser  and that there was no duty owed by  an  occupier like  the accused towards the trespasser and  therefore  the latter would have had no cause of action for damages for the injury inflicted and that if the act of the accused was  not a tort, it could not also be a crime.  There is no substance in this line of argument.  In the first place, where we have a  Code  like  the  Indian Penal  Code  which  defines  with particularity  the ingredients of a crime and  the  defences open  to an accused charged with any of the  offences  there set  out  we  consider  that  it  would  not  be  proper  or justifiable  to  permit the invocation of  some  Common  Law principle outside that Code for the purpose of treating what on the words of the statute is a crime into a permissible or other than unlawful act.  But that apart, learned Counsel is also not right in his submission that the act of the accused as  a  result  of  which  the  deceased  suffered   injuries resulting  in  her  death was not an  actionable  wrong.   A trespasser is not an outlaw, a Caput lupinem.  The mere fact that  the  person entering a land is a trespasser  does  not entitle the owner or occupier to inflict on him personal in- jury by direct violence and the same principle would 203 govern  the infliction of injury by indirectly  doing  some- thing  on  the  land the effect of which he  must  know  was likely  to cause serious injury to the trespasser.  Thus  in England  it  has been held that one who sets  springguns  to shoot at trespassers is guilty of a tort and that the person injured is entitled to recover.  The laying of such a  trap, and there is little difference between the spring-gun  which was  the trap with which the English Courts had to deal  and the  naked  live wire in the present case, is in  truth  "an arrangement  to  shoot  a man without  personally  firing  a shot".  It is, no doubt true that the trespasser enters  the property  at his own risk and the occupier owes no  duty  to take any reasonable care for his protection, but at the same time the occupier is not entitled to do willfully acts  such as  set a trap or set a naked live wire with the  deliberate intention  of  causing harm to trespassers  or  in  reckless disregard of the presence of the trespassers.  As we pointed out  earlier, the voltage of the current fed into  the  wire precludes  any  contention that it was merely  a  reasonable precaution  for  the protection of  private  property.   The

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position   as  to  the  obligation  of   occupiers   towards trespassers  has  been neatly summarised by the  Law  Reform Committee of the United Kingdom in the following words:               "The  trespasser  enters entirely at  his  own               risk,  but  the occupier must  not  set  traps               designed  to do him bodily harm or to  do  any               act  calculated  to  do  bodily  harm  to  the               trespasser  whom he knows to be or who to  his               knowledge is likely to be on his premises. For               example,  he must not set man-traps or  spring               guns. This  is no more than ordinary civilised behaviour."  judged in  the  light of these tests, it is clear  that  the  point urged is wholly without merit. The appeal fails and is dismissed. Appeal dismissed. 204