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2019 Supreme(Online)(KER) 31490
HIGH COURT OF KERALA
R. NARAYANA PISHARADI, J
SALINDRAN,
– Appellant
Versus
STATE OF KERALA, – Respondent
Crl.Rev.Pet 1163 2019
SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI, SRI C S HRITHWIK-SR PP
The legal standard for conviction under Section 452 IPC requires proven intent to cause harm, which was not established, leading to a modified conviction under Section 448 IPC.
Headnote:
Trespass - Criminal Offences - IPC Section List - The court discussed the interpretations of Sections 452, 323, and 448 of IPC, emphasizing the necessity for proof of intent in trespass. The decision altered the conviction under Section 452 to Section 448 due to insufficient evidence of preparation for harm.
Fact of the Case:
The revision petitioner, along with others, was found guilty of criminal trespass and causing hurt by entering a public servant's residence and assaulting him. The initial verdict included offenses under Sections 452 and 323 IPC, later modified by the appellate court.
Finding of the Court:
The court upheld the conviction for Section 323 IPC but found insufficient evidence to support the charge under Section 452 IPC, concluding that the act constituted trespass but lacked the necessary intent required for the higher offense.
Issues: Whether the evidence presented adequately supported a conviction under Section 452 IPC or if it should be modified to a lesser offense under Section 448 IPC.
Ratio Decidendi: The court determined that the lack of evidence of prior intent to cause harm or obstruct the complainant required a downgrade of the conviction from Section 452 IPC to Section 448 IPC.
Final Decision: The conviction under Section 452 IPC was altered to Section 448 IPC; the petitioner was sentenced to imprisonment till the rising of the court and ordered to pay compensation.
O R D E R
This revision petition is filed by the third accused in the case C.C.No.872/2011 on the file of the Court of the Judicial First Class Magistrate, Taliparamba. On the date on which the judgment was pronounced in that case, the petitioner did not appear before the court. Therefore, the case against the other accused was disposed of on that day and the case against the petitioner was split up and refiled as C.C.No.608/2016 after finding him guilty of the offences punishable under Sections 452 and 323 read with 34 I.P.C.
2. When the petitioner appeared in C.C.No.608/2016, after hearing him on the question of sentence, the trial court sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months for the offence punishable under Section 452 I.P.C and to undergo simple imprisonment for a period of three months for the offence punishable under Section 323 I.P.C and it was directed that the sentences shall run concurrently.
3. The revision petitioner filed appeal before the Court of Session, Thalassery challenging the conviction entered and the sentence imposed on him. The appellate court confirmed the conviction of the revision petitioner for the offences punishable under Sections 452 and 323 read with 34 I.P.C. However, the appellate court modified the sentence imposed on the revision petitioner for the offence punishable under Section 452 I.P.C and reduced it to simple imprisonment for a period of three months. The appellate court confirmed the sentence of fine imposed for the offence punishable under I.P.C and also the sentence of imprisonment imposed by the trial court for the offence punishable under Section 323 I.P.C.
4. The revision petitioner challenges the concurrent verdict of conviction entered against him by the courts below and also the modified sentence imposed on him by the appellate court.
5. Heard learned counsel for the revision petitioner and the learned Public Prosecutor.
6. The prosecution case is that on 06.05.2011, at about
21.00 hours, the revision petitioner along with the other accused in the case, criminally trespassed into the official residence of the de facto complainant who was working as Assistant Surgeon in a Community Health Centre and pulled him from the chair and kicked him and beat him and voluntarily caused hurt to him. It is also alleged that the accused criminally intimidated him and caused obstruction to the discharge of his duties as a public servant. The prosecution alleged that the accused committed the offences punishable under Sections 452 , 323, 353 and 506(i)
read with 34 I.P.C.
7. As noticed earlier, the trial court found the petitioner guilty of only the offences punishable under Sections 452 and 323 read with 34 I.P.C. True, there is only the solitary testimony of the de facto complainant/injured, who was examined as PW1, against the accused. However, his evidence is corroborated by medical evidence.
8. Learned counsel for the petitioner contended that the testimony of PW1 does not reveal the overt acts committed by the accused. It is contended that there is no evidence given by PW1 that the revision petitioner committed any particular act causing injury to him. Three persons had together entered into the residence of PW1. They together beat him and kicked him. Inability of a witness to speak the overt act committed by each person in such a situation cannot be found to be a lacuna in the prosecution case. The revision petitioner had entered into the residence of PW1 along with the two other accused. Therefore, common intention to commit the offences is evident.
9. It is also contended by the learned counsel for the revision petitioner that ownership certificate of the building was not proved properly. What is material in a case of house trespass is not the ownership of the house but the possession of the house or the building. There is no disp
