Criminal Appeal No. 1014 of 2003 · Kerala High Court · 2009

Crl. Appeal No. 1014 of 2003 -:5:-each of them was sentenced to rigorous imprisonment forsix months and to pay fine of Rs. 750/- and on default to payfine to undergo simple imprisonment for one month. Forthe conviction under Sec. 451 I.P.C. each of the appellantswas sentenced to undergo rigorous imprisonment for oneyear and to pay fine of Rs. 5,000/- and on default to pay thefine to suffer simple imprisonment for two months. Thesubstantive sentence of imprisonment was directed to runconcurrently. The fine amount, upon realisation wasdirected to be paid to P.W.2 (Jollykutty) the widow of thedeceased as compensation. It is the said judgment which isassailed in this Appeal.7.I heard the learned counsel appearing for theappellant as well as the learned Public Prosecutor.8.On behalf of the appellants, their learned counselmade the following submissions before me in support of hisfervent plea for the acquittal of the appellants:-P.W.4 (Ajay Alex) who was the independentoccurrence witness turned hostile to the prosecution. P.W. Crl. Appeal No. 1014 of 2003 -:6:-2 (Jollykutty) is none other than the wife of the deceasedand P.W.3 (Elsy) is a servant who was residing in the houseof the deceased. Apart from the fact that the interestedtestimony of P.Ws 2 and 3 is full of contradictions,omissions and exaggerations, in Ext.P2 first informationstatement what P.W.2 stated was that it was A2 whoslapped on the face of the deceased. But, as P.W.2, shesays that it was A1 who slapped the deceased on his face.As against the testimony of P.W.2, P.W.3 stated that it wasA2 who slapped on the face of the deceased. Both P.Ws 2and 3 would say that the rest of the accused persons hadalso beaten the deceased on various parts of his body.P.W.3 even claims to have seen tenderness on the body ofthe deceased. But Ext.P4 inquest report and Ext.P1 postmortem certificate do not show any external injuries ortenderness on any part of the body of the deceased. Thethree ante mortem injuries noted in the postmortemcertificate had been explained by the autopsy surgeonhimself as due to the use of the defibrillator which was Crl. Appeal No. 1014 of 2003 -:7:-evidently pressed into service as a resuscitation measureat the Karithas Hospital at Ettumanoor by CW 19 thedoctor who was not examined by the prosecution. Whenthe oral evidence adduced by the eye-witnesses do notsupport the prosecution case and there is no medicalevidence to corroborate the alleged overt acts attributed tothe accused, the court below was not justified in holdingthat the accused had committed the offence punishableunder Section 323 I.P.C. The only other offence is onepunishable under Sec. 451 I.P.C. for which the prosecutionwas bound to prove that the accused had criminallytrespassed into the house of the deceased for the purposeof committing any of the offences alleged. When there wasno acceptable evidence to substantiate the allegation ofhurt punishable under Sec. 323 I.P.C, mere entry into thehouse of the deceased cannot amount to criminal trespass.In Appukuttan v. Prakasan - 2006 (4) KLT SN 27 it hasbeen held that in order to constitute the offence punishableunder Sec. 451 I.P.C. it should be proved that the accused is Crl. Appeal No. 1014 of 2003 -:8:-guilty of an offence punishable under Sec. 323 or 497 I.P.C.Mere intention to commit those offences cannot attract anoffence punishable under Sec. 451 I.P.C. if the accusedafter entering the house, have not committed the intendedoffence. This was not a case in which the accused hadvoluntarily entered the house of the deceased. They wereinvited to the house for a mediation talk in the presence ofCW4 the Panchayath member and it was the deceased whogrew wild during the midst of the talks. Even P.W.2 thewife of the deceased was unaware that her husband was aheart patient and would succumb to the morbidity at theslightest provocation. If so, the accused who were in thedark about the morbid condition of the deceased cannot befound guilty, if in the course of the mediation talk thedeceased got excited and that was sufficient for himsuccumb to the illness he was suffering from. Theconviction recorded by the court below cannot therefore, besustained. 9.I am afraid that I cannot agree fully with the Crl. Appeal No. 1014 of 2003 -:9:-submissions made on behalf of the appellants. It is true thatthe cause of death as opined by P.W.1, the autopsy surgeonin Ext.P1 post Mortem Certificate is that the death of thedeceased was due to occlusion of the coronary artery – adisease of the heart. The findings in Ext.P1 show that thewalls of the coronary arteries were thickened and calcifiedand right coronary artery was completely occluded by athrombus looking mass. The left ventricular wall showeda fibrotic area of 5x2x1 c.m. The aorta showedatheromatous plaques with ulceration and calcification.Baby, the retired headmaster was evidently hard pressedfor money to undergo a bye-pass surgery. No doubt, thereare omissions, deviations and fringe exaggerations in thetestimony of P.Ws 2 and 3. Such descripancies are boundto occur even in the testimony of the most truthfulwitnesses, particularly, when they are giving evidence aftera lapse of time. The occurrence was on 12-8-2001. Theprosecution witnesses were giving evidence in the end ofMarch 2003. Hence there are bound to be some Crl. Appeal No. 1014 of 2003 -:10:-contradictions, omissions, exaggerations and deviations inthe oral testimony. But the main core of the testimony ofP.W.2 stands unshaken. She is a retired teacher. Herhusband, deceased Baby was a retired headmaster. 8. It is true that CW4 the panchayath member inwhose presence there was a mediation talk in the house ofthe deceased, was not examined by the prosecution. But hewas admittedly in Germany at the time of trial and theprosecution was obviously not able to examine him as awitness. According to P.W.2 for the purpose of wideningthe pathway leading to the house of the first accused, thedeceased had permitted the accused to demolish thelaterite wall of the deceased. The understanding was thatthe first accused would re-construct the wall within twomonths. But he did not keep his word and it was only after2 ½ years that he finally constructed the wall and that wasnot conforming to the height of the previous wall. Whentwo days prior to the occurrence the deceased asked theaccused about it they intimidated him. The 2nd accused is Crl. Appeal No. 1014 of 2003 -:11:-the son of the first accused and the 3rd accused is theyounger brother of the first accused. The 4th accused is aclose relative of accused 1 to 3. Going by the testimony ofP.W.2 while the first accused and the deceased were havinga talk in the drawing room of the deceased in the presenceof CW4 the Panchayath member, the rest of the accusedbarged into the room and created a commotion. PWs 2and 3 had deposed that even though the deceased asked theaccused to get out of his property they still remained thereand went on challenging him. There must have been apush and pull as deposed to by P.Ws 2 and 3. There is noevidence to the effect that all or any of the accused wereinvited to the house of the deceased for a talk. Evenaccording to the memorandum of evidence filed by thepolice along with the charge sheet the role of CW4 was onlyto prove that the occurrence took place in his presence andhe had personal knowledge about the promise by the firstaccused to re-construct the laterite wall after its demolitionand also about the dispute between the deceased and the Crl. Appeal No. 1014 of 2003 -:12:-accused with regard to the delay in the construction andthe grievance of the deceased regarding the unsatisfactorynature of the construction. Hence, the non-examination ofCW4 does not assume much importance. Even assumingthat the accused had lawfully entered the house of thedeceased for having a mediation talk in the presence ofCW4, the occurrence as spoken to by Pws 2 and 3 goes toshow that the accused after entering the house unlawfullyremained there and had even intimidated and insulted andannoyed the deceased when they were called upon to quitthe house. Hence, that conduct of the accused will clearlycome within the latter part of Sec. 441 I.P.C. which definescriminal trespass. “Criminal trespass” is defined by Sec.441 I.P.C. which reads as follows:“441. Criminal trespass – Whoever enters into or uponproperty in the possession of another with intent to commitan offence or to intimidate, insult or annoy any person inpossession of such property,or having lawfully entered into or upon suchproperty, unlawfully remains there with intent thereby tointimidate, insult or annoy any such person, or with intentto commit an offence, Crl. Appeal No. 1014 of 2003 -:13:-is said to commit “criminal trespass”.This offence is punishable under Sec. 447 I.P.C. But whencriminal trespass is committed in a dwelling house, or anybuilding, tent or vessel used for human dwelling, itbecomes, “house trespass” as defined under Section 442I.P.C. and punishable under Sec. 448 I.P.C. The offenceintended to be committed so as to constitute “criminaltrespass” is any offence. But if such offence intended to becommitted is one punishable with imprisonment and thecriminal trespass is committed in a dwelling house, thenthe offence which is made out is not one punishable underSec. 448 I.P.C. but one punishable under Sec. 451 I.P.C.which is an aggravated form of house trespass.Admittedly, the main part of the occurrence in this casetook place inside the house of the deceased and therebyattracting house trespass as defined under Section 442I.P.C. But it is not a simple house trespass punishable underSec. 448 I.P.C. The testimony of Pws 2 and 3 will go to Crl. Appeal No. 1014 of 2003 -:14:-show that the accused had assaulted the deceased and hadcaused annoyance to him even after they were asked to goout of the house. Thus, the accused were remaining in theproperty unlawfully to the annoyance of the deceased andwith the intention of committing criminal intimidation andinsult and they had even assaulted the deceased within themeaning of Sec. 351 I.P.C. as interpreted in Mathew v.State of Kerala – 1992 (2) KLT 413. Merely becausethere is no medical evidence to show that the deceased hadexternal injuries on his person it does not follow that theoffence punishable under Sec. 451 has not been committed.A close reading of Sec. 451 I.P.C. does not indicate that aperson who commits house trespass can be convictedunder the section only if he is found guilty of committingany offence punishable with imprisonment . If criminaltrespass into a dwelling house is committed with theintention of committing any offence punishable withimprisonment then the offence punishable under Sec. 451I.P.C. is complete even if the offender does not succeed in Crl. Appeal No. 1014 of 2003 -:15:-committing the offence which he intended to commit. Thelast part of Section 451 I.P.C. clearly indicates that if theintended offence is theft then it is considered to be a stillmore aggravated form of house trespass. If a personcommits criminal trespass into a dwelling house with theintention of committing an offence punishable withimprisonment and if he succeeds in accomplishing hisintention by committing those offences, then he will notonly be committing an offence punishable under Sec. 451I.P.C. but also the other offences which he has committed.Hence, Sec. 451 I.P.C. will be attracted even if thetrespasser does not accomplish the committing of the otheroffences punishable with imprisonment which he intendedto commit. I need not consider the correctness orotherwise of the decision reported in 2006 (4) KLT SN 27since the evidence already discussed above shows that theaccused persons remained in the house even after theywere asked to get out and this conduct of the accused hadevidently caused insult or annoyance to the deceased who Crl. Appeal No. 1014 of 2003 -:16:-was also intimidated and assaulted. Hence, I do not findany error in the conviction recorded by the court below forthe offence punishable under Sec. 451 I.P.C. 9.As for the conviction under Sec. 323 I.P.C, in theabsence of any evidence to the effect that deceased Babysuffered bodily pain, disease or infirmity as a proximatecause of the acts of the accused, the conviction becomesvulnerable. Deceased Baby did not survive to tell thePolice or the Court that he sustained bodily pain onaccount of the assault by the accused. There is also nocorroborating medical evidence to support the prosecutioncase. Hence, the said conviction cannot be sustained. 10.The result of the foregoing discussion is that theconviction entered under Section 323 I.P.C. is unsustainableand is accordingly set aside. The appellants are found notguilty of the offence punishable under Sec. 323 I.P.C. andare acquitted of the same. The conviction recorded by thecourt below under Sec. 451 I.P.C. is however, confirmed. 11.In the facts and circumstances of the case, I do Crl. Appeal No. 1014 of 2003 -:17:-not think that the appellants deserve penal servitude byway of incarceration for the conviction under Sec. 451I.P.C. Interests of justice will be adequately met byimposing a sentence of imprisonment till rising of court andan appropriate compensation. Accordingly, the sentenceimposed on the appellants under Sec. 451 I.P.C. is set asideand instead they are each sentenced to imprisonment tillrising of court and to pay compensation of Rs. 7,500/- eachto P.W.2, the widow of deceased Baby under Sec. 357 (3)Cr.P.C. . The said compensation amounting to Rs. 30,000/-(Rupees thirty thousand only) in all shall be depositedbefore the trial court within one month from today failingwhich the defaulting appellant shall undergo simpleimprisonment for three months by way of default sentence.In the result this appeal is allowed in part as above.Dated this the 22nd September 2009.V. RAMKUMAR, (JUDGE)ani. Crl. Appeal No. 1014 of 2003 -:18:-V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *Crl. Appeal No. 1014 of 2003 * * * * * * * * * * * * * * * * * * Dated: 22nd September 2009JUDGMENT