2013 Supreme(Ker) 1004
HARUN UL RASHID
Ayyappan Pillai – Appellant
Versus
State of Kerala – Respondent
Judgement Key Points
- Case Identification: Criminal Revision Petition No. 939 of 2013 before High Court of Kerala, decided on 18-07-2013 by Harun Ul Rashid, J. Appellants (A1-4 & A7) challenge conviction in C.C. No. 307/2010. [judgement_subject] (!) (!) [15000446190001]
- Trial Court Proceedings: Prosecution alleged offences under Sections 143, 147, 148, 447, 448, 427 r/w 149 IPC. Magistrate convicted A1-4 & A7 under 143, 147, 447 r/w 149 IPC; fined Rs.1000 (143), Rs.3000 + till rising of court (147), Rs.500 (447) each. Acquitted under 148, 448, 427 r/w 149. Appeal dismissed on 21.3.2013. [15000446190001]
- Prosecution Allegations: On 3.6.2010 at 10:35 pm, 9 accused + others formed unlawful assembly, trespassed PW1's house, damaged windows (front hall: 3 panes by A6; bedroom: 4 panes by A2-4,A6,A7 etc.), kicked front door (A1). [15000446190001]
- Prosecution Evidence: PWs 1-3 (PW1 complainant, PW2 wife, PW3 IO); Exts P1-P4, MO1/MO2 (sticks). Defence: Exts D1-D3/D4-D6. PW1/PW2 saw ~12 persons outside (sit-out/courtyard), armed (iron rod/sword/chopper/sticks), abusing, kicking door, breaking panes. Police arrived ~11 pm. [15000446190002][15000446190003][15000446190004]
- PW3 Testimony & Scene Mahazar: No door damage noted (Ext P3); only 2/4 bedroom panes broken (glass only, no frame/wood). MO1 (firewood stick) seized 4.6.2010, produced 30.6.2010. [15000446190004]
- Trial Court Evaluation: PW1/PW2 exaggerated/inconsistent (vs Ext P1 FIR, Ext D1 civil plaint naming only A6 for damage); no door damage; no specific proof accused caused window damage; no entry into house/sit-out; MO1 not linked to accused/used weapon. Acquitted 148/427/448 r/w149. But found entered courtyard (per PW1/PW2), hence guilty 143/147/447 r/w149. No discussion on 143/147. [15000446190004][15000446190005]
- High Court Analysis on Trespass: Section 441 IPC requires entry upon property with intent to commit offence/intimidate/insult/annoy possessor. No proof of mischief (427), house-trespass (448), or arms (148); mere compound entry insufficient without intent. Ingredients absent; cannot prove 447 r/w149 (thus also 143/147 fail). [15000446190006]
- Outcome: Petition allowed; judgments set aside; A1-4,A7 acquitted under 143/147/447 r/w149; set at liberty, bail cancelled. (!)
ORDER
Harun-Ul-Rashid, J.
1. The appellants are the accused Nos.1 to 4 & 7 in C.C.No.307/10 on the file of the Judicial First Class Magistrate-I, Mavelikkara. The prosecution charge sheeted the case against 9 accused alleging offence punishable under Section 143, 147, 148, 447, 448, 427 r/w 149 IPC. The learned Magistrate held that prosecution has successfully established offence punishable under Section 143, 147 and 447 r/w 149 IPC against accused Nos.1 to 4 & 7. The said accused are found not guilty of the offence punishable under Section 148, 448, 427 r/w 149 IPC and they are acquitted of the said offences under Section 248(1) Cr.P.C. Accused Nos. 1 to 4 & 7 are sentenced to pay a fine of Rs. 1,000/-each for the offence punishable under Section 143 IPC and in default to undergo simple imprisonment for one month, sentenced to undergo imprisonment till the rising of court and to pay a fine of Rs. 3,000/- each for the offence punishable under Section 147 IPC in default the undergo simple imprisonment for two months and they are also sentenced to pay a fine of Rs. 500/- each for the offence punishable under Section 447 IPC in default to undergo simple imprisonment for two weeks. The j
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