Kerala High Court
Shine Justus vs State Of Kerala on 1 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 1ST DAY OF SEPTEMBER 2022 / 10 TH BHADRA, 1944
CRL.A NO. 372 OF 2007
SC 2054/2004 OF ADDITIONAL SESSIONS COURT (FAST TRACK) III,
THIRUVANANTHAPURAM
APPELLANTS/ACCUSED
1 SHINE JUSTUS
S/O.JUSTUS,THANKAM NIVAS, THATTANVILA LANE,,
MUDAVANMUGAL, THIRUMALA.
2 SIVA PRAKASH
S/O.VENU, GIRIJA BHAVAN,, VATTAPARA.
BY ADVS.
SRI.R.T.PRADEEP
SRI.V.VIJULAL
RESPONDENT
STATE OF KERALA
DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF,
KERALA, ERNAKULAM.
PP-SR.GP-SRI.DENNY DEVASSY
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 01.09.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.372/2007
2
A.BADHARUDEEN. J.
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Crl.A.372 of 2007
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Dated : 1st September, 2022
JUDGMENT
1. Accused Nos.1 and 2 in S.C.No.2054/2004 on the file of Additional Sessions Court, Thiruvananthapuram impugn the conviction and sentence imposed on them by the Additional Sessions Judge, as per judgment dated 30.1.2007 on the finding that they have committed offences under Sections 324, 427 and 452 r/w 34 IPC. Respondent herein is State represented by the learned Public Prosecutor.
2. The prosecution case is that on 13.5.2003 at about 6.30 pm accused herein trespassed upon the shop room bearing No.T.C.49/1530 owned and possessed by the de facto complainant and assaulted the de facto complainant, with intention to do away him or with such knowledge that the acts would cause death of the defacto complainant. The specific allegation is that the 1st accused slashed the de facto complainant with a chopper on the right leg below the knee and second accused slashed on the neck of Crl.A.372/2007 3 PW3 and when the same was warded off, same caused injuries on his left and right hand. Further, the accused destroyed glasses to the tune of Rs.3,000/-. Accordingly, crime was registered alleging commission of offence under Sections 452, 308 and 427 r/w 34 IPC. After completing the investigation, charge laid against the accused before the Jurisdictional Magistrate.
3. Thereafter, the case was committed to the Sessions Court for trial and disposal and when the case was made over to the Additional Sessions Judge, the Additional Sessions Judge tried the case after complying the pre-trial formalities.
4. During trial, PWs 1 to 10 were examined, Exts.P1 to P7 marked and MO1 to MO4 series were marked, on the side of the prosecution. During examination of the prosecution witnesses Exts.D1 to D5 contradictions marked on the part of the defence, apart from examining DW1, on the part of the defence. The Sessions Court adduced defence evidence after questioning the accused under Section 313 (1)(b) of Cr.P.C.
Crl.A.372/20074
5. Thereafter on hearing both sides, the Sessions Court found that the accused herein committed offence under Sections 324, 427 and 452 read with Section 34 IPC.
6. The learned counsel for the appellants though not raised serious challenge as to the conviction imposed under Section 427 IPC, he has raised serious challenge as regards the finding of the Sessions Court that the accused/appellants committed offences under Sections 324 and 452 IPC.
7. It is argued by the learned counsel for the appellants that in order to attract Section 452 IPC, 'house trespass' as contemplated under Section 442 of IPC should be established and the definition of house trespass applies only when trespass upon a dwelling house is made, and a place outside a shop or building, where public as a whole are having access, is not a 'house' to attract offence under Section 452 IPC.
8. He also argued that, since the evidence does not suggest injuries to the defacto complainant by the use of weapons involved in this case marked as MOs Crl.A.372/2007 5 1 and 2, offence under Section 324 IPC also could not attract and therefore, the accused/appellants are entitled to get acquittal insofar as offences under Sections 324 and 452 IPC are concerned.
9. The learned Public Prosecutor would urge that, going by the evidence of PW3 to PW5 and other witnesses, the place of occurrence is in front of the shop room and therefore, the contention raised by the appellants is having some sort of force insofar as the offence under Section 452 of IPC is concerned. However, the learned Public Prosecutor pointed out that evaluation evidence would go to show that offence under Section 447 IPC will be attracted in this case, since it is an offence of criminal trespass dealt under Section 441 IPC.
10. Coming to the offence under Section 324 IPC, the evidence of PW3, the de facto complainant and the evidence of his wife, PW4, is available, though the independent witness examined from the side of the prosecution, PW5, turned hostile to the prosecution. It is to be noticed that during chief- examination PW3/the injured fully supported the Crl.A.372/2007 6 prosecution case. According to him, on 13.5.2003 at about 6.30 pm he was attacked in front of his shop room at Thattanmala. PW3 stated that when he demanded money due from the father of Shine (A1), A1 and his friend reached the shop with a chopper and sword in a motorbike. Thereafter he was assaulted by them with intention to do away with him.
11. The evidence of PW3 further is that, since the sword stick was brandished to assault him with intention to do away him, the same caused injuries on left leg, hand and right leg. He had given evidence further that the second accused used the sword and caused injuries on his hands and legs. PW4 is the wife of PW3. She also supported the evidence of PW3, though during cross-examination, she made an improvement in the prosecution case that injuries were also caused by broken glasses due to destruction of glasses by the accused. PW1 and PW2 categorically given evidence as to destruction and PW1 would state that he sustained loss of Rs.20,000/- on account of the mischief Crl.A.372/2007 7 committed by the accused.
12. The first question to be decided is as to whether the prosecution succeeded in establishing commission of offence under Section 452 IPC by doing house trespass as defined under Section 442 IPC. Section 442 IPC defines house trespass as under;
"House trespass.--Whoever 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 the custody of property, is said to commit "house- trespass".
13. It is argued by the learned counsel for the appellants that the place of occurrence is not the house of the de facto complainant and though the prosecution alleged that the occurrence was inside the shop room, the evidence would suggest that the occurrence was outside the shop room. Thus, place of occurrence is not either a dwelling house or at Crl.A.372/2007 8 least the shop room of the de facto complainant. As such, an occurrence outside the shop room cannot be treated as an occurrence inside a dwelling house to find that the accused committed house trespass. In this matter, PW3 given evidence that the occurrence was in front of his shop room. In the evidence of PW4, the exact place of occurrence is not stated. Though PW5 was declared hostile, his evidence is that the occurrence was in front of the shop of PW3. In this context, the scene mahazar marked as Ext.P5 is also relevant. Scene mahazar was proved through PW7. The place of occurrence is described as the shop room and its surroundings. On over all evaluation of the evidence discussed in detail, it could be gathered that the occurrence was outside the shop room and the said place of occurrence cannot be adjudged as a dwelling house or building, tent or vessel used as a human dwelling or any place used as a place of worship or a place for the custody of property as defined under Section 442 IPC. It is true that, if the evidence would suggest that the accused entered Crl.A.372/2007 9 into or upon property in the possession of another man with intention to commit an offence of criminal trespass defined under Section 441 of IPC, punishable under Section 447 IPC will be attracted in this case as urged by the learned Public Prosecutor. However, the evidence available as discussed would go to show that the occurrence was in front of the shop room. Exact evidence to find the place of occurrence as the property of PW3 is not forthcoming. Therefore, I am not inclined to hold that offence under Section 447 of IPC will be attracted in this case.
14. In view of the matter, I am inclined to accept the contention raised by the learned counsel for the appellants to hold that the prosecution failed to establish the commission of offence under Section 452 IPC and the conviction and sentence imposed by the trial court for the said offence shall stand set aside.
15. I have already pointed out the evidence of PW3 and PW4. In addition to that PW1, the doctor who had examined PW3, soon after the occurrence given Crl.A.372/2007 10 evidence that PW3 sustained the following injuries noted in Ext.P1;
(1) Abrasion with contusion haemetoma on left fore arm extenser aspect 3x3 (2) Incised wound in the right fore arm in the extenser aspect 1cmx25cmx2cm (3) Mild abrasion on right leg near the knee joint.
16. PW1 given evidence further that the above injuries could be caused by MO1 and MO2. Thus, it is has been established in evidence that the overt acts on the part of the accused spoken by PW3 and PW4 and the injuries sustained to PW3, in consequence of the said overt acts, got corroboration from the evidence of PW1 in the form of medical evidence also. That apart, PW7 admitted his signature in Ext.P7 scene mahazar, though he stated that the scene mahazar prepared at 7.30 p.m. PW10 is the Investigating Officer and he supported the prosecution as regards to the investigation conducted by him and nothing material extracted during cross-examination to disbelieve him in the Crl.A.372/2007 11 matter of investigation in any manner. It is to be noted that the defence examined DW1 to shake the prosecution case. The evidence of DW1 was not accepted by the learned Sessions Judge. In fact, the evidence of DW1 could not be believed as against the candid evidence given by PW3 and PW4 supported by the evidence of PW1 and Ext.P1. Therefore, I do endorse the said finding.
17. On re-appreciation of the entire evidence,I hold that the prosecution succeeded in establishing that the appellants/accused herein committed offences under Sections 323 and 427 read with 34 of IPC. Therefore, conviction entered into the trial court for the said offences shall not be interfered and the same stands confirmed.
18. It is submitted by the learned counsel for the appellants that maximum leniency may be shown in the matter of sentence, since the offences under Sections 324 and 427 IPC are not serious in nature and imposition of fine could also be justified.
19. In this matter, the learned Sessions Judge imposed sentence of imprisonment for a period of Crl.A.372/2007 12 one year for the offence under Section 324 read with Section 34 IPC and for a period of six months for the offence under Section 427 read with Section 34 IPC. Section 427 of IPC provides that whoever commits mischief and thereby causes loss or damages to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. In view of the matter, I am inclined to modify the sentence for the offence under Section 324 of IPC confining the same to payment of fine. Accordingly, the appellants/accused are sentenced to pay fine of Rs.3,000/- each for the offence under Section 427 read with Section 34 IPC and in default to pay the fine, they shall undergo simple imprisonment for a period of one month each.
20. Similarly, for the offence under Section 324 IPC, the punishment provided is imprisonment for a a term which may extend to three years, or with fine, or with both. Therefore, I am inclined to confine the sentence under Section 324 of IPC also Crl.A.372/2007 13 to fine. Accordingly, the appellants/accused are sentenced to pay Rs.5,000/- each under Section 324 read with Section 34 IPC. If default of payment of fine, they shall undergo default imprisonment for a period of two months.
21. Fine, if realised or deposited, the trial court is directed to pay Rs.10,000/-(Rupees Ten Thousand only) to PW3 as compensation under Section 357(1)
(b) Cr.P.C., after issuing notice to PW3 without fail.
22. The bail bond of the appellants stands cancelled and the appellants/accused are directed to surrender before the Sessions Court to pay the fine, as ordered, within three weeks from today and on failure to do so, the appellate court is directed to execute the modified sentence in accordance with law.
In the result, the appeal is allowed in part and the conviction and sentence imposed against the appellants/accused for the offence under Section 452 read with Section 34 IPC stand set aside. While confirming the conviction under Sections 324 Crl.A.372/2007 14 and 427 read with Section 34 IPC, the sentence stands modified as stated above.
Registry is directed to forward a copy of this judgment to the trial court for information and compliance.
Sd/-
A.BADHARUDEEN, Judge Mrcs