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2020 Supreme(Bom) 548
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
K.R. Shriram, J.
State Of Maharashtra - Appellant
Versus
Babu Bhaga Zore & Ors. - Respondents
Criminal Appeal No.592 of 2004
Decided On : 21-02-2020
Ms. Anamika Malhotra, APP for State - Appellant, for the Appellant; Mr. Jitendra K. Jadhav for respondents, for the Respondent
The main legal point established in the judgment is the requirement to fulfill the elements of the charged offenses, the principles regarding powers of the Appellate Court in appeals against acquittal, and the double presumption in favor of the accused in case of acquittal.
Headnote:
House Trespass - Property Dispute - Section 452, Section 323, Section 504, Section 506, Section 34 of Indian Penal Code - Section 452, Section 441, Section 442 of IPC - The court discussed the requirements of house trespass, criminal trespass, and the elements of the charged offenses. It highlighted the need for entering into or upon property in possession of another for a charge under Section 452 of IPC, and the lack of evidence for the offenses under Section 323, Section 504, and Section 506. The court also emphasized the principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal.
Fact of the Case:
The case involved a property dispute between cousins, with the accused being acquitted of offenses including house trespass, voluntarily causing hurt, intentional insult, and criminal intimidation.
Finding of the Court:
The court found that the accused did not meet the primary requirement of entering into or upon property in possession of another for the offense under Section 452 of IPC. It also noted the lack of evidence for the other charged offenses.
Issues: The issues revolved around the elements of the charged offenses, the property dispute between the parties, and the lack of evidence supporting the prosecution's case.
Ratio Decidendi: The court emphasized the need for fulfilling the requirements of the charged offenses and highlighted the principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal.
Final Decision: The appeal was dismissed, and the court upheld the order of acquittal, citing the double presumption in favor of the accused and the lack of fault with the judgment of the Trial Court.
JUDGMENT
1. This is an appeal impugning an order and judgment dated 23 rd January 2004 passed by the Judicial Magistrate First Class, Ratnagiri, acquitting the accused of offences punishable under Section 452 (House- trespass after preparation for hurt, assault or wrongful restraint), Section 323 (Punishment for voluntarily causing hurt), Section 504 (Intentional insult with intent to provoke breach of the peace), Section 506 (Punishment for criminal intimidation) read with Section 34 (Acts done by several persons in furtherance of common intention) of Indian Penal Code (IPC).
2. It is the case of prosecution that while PW-1 was giving food to His paralyzed father at about 7.30 p.m., the accused entered the house, which is in their possession, and assaulted PW-1. When the other family members of PW-1 intervened, they were also assaulted. The accused punched and kicked complainant and others in the house. After hearing the shout, neighbors collected and separated them, after which, complaint was filed. Post investigation, chargesheet was filed and accused pleaded not guilty and claimed to be tried. The stand of the accused is of total denial and that the whole thing is an outcome of property dispute and the attempt of complainant is to oust the accused from their ancestral house. Admittedly, the accused and complainant are cousins and there are long standing disputes going on over partition of ancestral property.
3 Section 452 of IPC reads as under :
452. House-trespass after preparation for hurt, assault or wrongful restraint. -Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
On a plain reading of the aforesaid provision it is apparent that for the purpose of invoking Section 452 of IPC two requirements are required to be cumulatively satisfied.
To postulate an offence under Section 452 of IPC, it has to be established (a) that the accused committed house trespass and (b) that the same was committed after making preparation for causing hurt to, or for assaulting or for wrongfully restraining, some person, or for putting some person in fear of hurt, or of assault, or of wrongful restraint. If either of the two requirements is not satisfied Section 452 would not be attracted.
House trespass itself, has been defined in Section 442 of IPC and it reads as under :
442. House trespass.Whoever commits criminal trespass by enter- ing into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit ''house- trespass''.
Therefore, a person, who commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for custody of property, is said to commit ''house trespass''. Criminal trespass is defined under Section 441 of IPC as under :
441. Criminal trespass.Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit ''criminal trespass''.
Therefore, criminal trespass would be complete if a person enters into or upon the property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. Criminal trespass will also take in its fold, lawful entry into or upon such property, but unlawful remaining therein, wi
