Unlawful entry for committing an offence in a public place constitutes criminal trespass under IPC, regardless of access rights.

O R D E R

The revision petitioner is the accused in C.C.

No.397/1996 on the file of the Judicial Magistrate of the First Class-I, Thodupuzha. He was prosecuted by the Assistant Sub Inspector of Police, Karimannoor in Crime No.114/1996 accusing offences under Sections 448, 427 and 294(b) of the Indian Penal Code (IPC), with an allegation that at 6.45 p.m. on 27/7/1996, the revision petitioner committed criminal trespass into toddy shop No.16 of which PW5 was the contractor and committed mischief by destroying three desks and four benches; and throwing it into nearby stream. As a result, PW5 sustained damage to the tune of Rs.3,800/-. It was alleged that the revision petitioner demanded toddy on credit for which the manager was not amenable and being motivated, the offence alleged was committed.

2. The revision petitioner pleaded not guilty.

Therefore, he was sent for trial. On the side of the prosecution, PWs 1 to 7 were examined. Exhibits P1 to P4, MOs 1 and 2 were marked. During cross- examination of the witnesses, certain portions of the CD statements were marked as Exhibits D1 to D6. When questioned under Section 313 (1) (b) of the Code of Criminal Procedure, the revision petitioner took a plea of total denial. The revision petitioner further stated that the case was falsely foisted because he asked his friends not to drink toddy from that shop for the reason that adulterated toddy was sold from the shop. In pursuance to his request the customers boycotted the shop for three days. Because of that, to wreak vengeance, the prosecution was launched. However, no defence evidence was let in. On appraisal of the evidence, the learned Magistrate arrived at a finding of guilty. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for one month each under Sections 448, 427 and 294 (b) IPC. A fine of Rs.2,000/- was also slapped on the revision petitioner under Section 427 IPC. Out of the fine amount, if collected, Rs.1,000/- was ordered to be paid to PW5 as compensation.

3. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.44/1999 before the Sessions Judge, Thodupuzha. The Additional Sessions Judge Adhoc-II, to whom the appeal was made over, by the impugned judgment dated 19/9/2002, arrived at a finding that the prosecution had not succeeded to establish offence under Section 294 (b) IPC; but was succeeded to establish offences under Sections 427 and 448 IPC. Consequently while setting aside the conviction and sentence for offence under Section 294 (b) IPC, the conviction and sentence for offences under Section 448 and 427 IPC were confirmed. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition is preferred.

4. I have heard Sri. Sojan Micheal, the learned counsel appearing for the revision petitioner and Smt.Sareena George the learned Government Pleader.

The judgments of the courts below were perused.

5. PW1 is the defacto complainant who lodged Exhibit P1 First Information Statement on the basis of hear say information. PWs 2 and 3 who are the sales men had given evidence regarding the entry of the revision petitioner into the toddy shop and the mischief committed. PW6, the manager of the shop also had given evidence in support of the prosecution. PW2 was declared hostile for the reason that he deviated from the statement given to the Investigating Officer regarding the cause for the action of the respondent. It is stated by him to the Investigating Officer that the revision petitioner demanded toddy on credit for which he was not amenable and thereby the offences alleged were committed. In the Box, he did not support the prosecution on that aspect. But regarding the entry into the shop and the mischief, he supported the prosecution. PW1, 2 and 6 are harmonious regarding the trespass and mischief. They withstood cross- examination on that aspect. I find little reason to disbelieve their evidence regarding trespass and mischief