Madhya Pradesh High Court
Manoj @ Ballu vs State Of M.P. on 1 March, 2016
1
Cr.R. No. 98/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE N.K. GUPTA
Cr.R. No. 98 of 2012
Manoj @ Ballu & Ors.
Vs.
State of M.P.
Whether reportable :- Yes /No
__________________________________________________________
For Applicants : Shri Praveen Mishra, Advocate.
For Respondent : Shri Mohd. Irshad, Panel Lawyer
/State
ORDER
(Delivered on this Day of 1st March, 2016) Vide judgment dated 20/07/2011 passed by Judicial Magistrate First Class, Gwalior in criminal case No. 8725/2006, each of the applicants has been convicted of offence under section 148, 325 r/w section 149 of IPC and sentenced to suffer one year RI with fine of Rs. 300/, two years RI with fine of Rs. 500/- respectively. The applicant No. 4-Jayant Kumar @ Pappu was also convicted of offence under section 452 of IPC and sentenced to two years RI with fine of Rs. 500/-. Thereafter, the appeal was preferred and vide judgment dated 31/01/2012 passed by 1st Additional Judge to First Additional Sessions Judge, Gwalior in Cr. R. No. 447/2011, the appellate Court dismissed the appeal. Being aggrieved with the aforesaid judgments, 2 Cr.R. No. 98/2012 the applicants have preferred the present revision.
2. On 22/02/2016, the main victim Maniram appeared before this court and entered into a compromise with the applicants. Consequently, each of the applicants was acquitted from the charge of section 325 r/w section 149 and 148 of IPC due to acceptance of compromise and, hence, applicants No. 1, 2 & 3 have been acquitted from all the charges appended against them and their conviction as well as sentence was set aside. Similarly, such compoundable charges against the applicant No. 4-Jayant Kumar @ Pappu were also turned into acquittal due to compromise, but the revision is still pending for the applicant No. 4-Jayant Kumar @ Pappu for offence under section 452 of IPC only.
3. Facts of the case, in short, are that on 08/10/2003 at about 8.30 Pm, the victim Maniram (PW-1) was present in his STD shop situated at Genda Wali Road, Lashkar, Gwalior. The applicants who were armed with sticks, farsa, saria and knife surrounded the shop. The applicant No. 4-Jayant Kumar @ Pappu went inside the shop and pulled the victim Maniram (PW-1) out of his shop and thereafter the applicants assaulted him with various weapons. On shouting of Munnidevi (PW-2) wife of the Maniram, some persons came and saved the victim Maniram. The victim Maniram was taken to Dubey Nursing Home at Shinde Ki Chaoni, 3 Cr.R. No. 98/2012 Gwalior and thereafter Munnidevi (PW-2) went to the police station Janakganj, Dist. Gwalior and lodged an FIR Ex. P-1. The medico legal examination of the victim was done and radiological examination was also done. It was found that the victim Maniram sustained stab wound on his left thigh and fracture in his right leg. After due investigation, the charge sheet was filed before the trial court and the trial court after recording the prosecution evidence convicted and sentenced the applicants as mentioned above, though the applicants have examined Laxman Singh (DW-1) as defence witness. The appeal filed by the applicants was also dismissed.
4. I have heard learned counsel for the parties at length.
5. In the present case, the main offence under section 325 of IPC along with offence relating to constitution of unlawful assembly with section 148 of IPC was compounded and therefore, it would not be necessary to discuss about the overt act of the various accused persons relating to the aforesaid offences, however, for consideration the offence under section 452 of IPC relating to the applicant No. 4-Jayant Kumar @ Pappu, some portion of factual position of the aforesaid offence may be considered. The victim Maniram (PW-1) and his wife complainant Munnidevi (PW-2) have stated that the applicants surrounded the STD shop and thereafter the applicant No. 4-Jayant Kumar @ Pappu entered into 4 Cr.R. No. 98/2012 the shop and gave a slap to the victim and thereafter he pulled the victim Maniram out of his shop and thereafter the victim Maniram was beaten by all the accused persons.
6. It would be apparent that it was alleged against the applicant No. 4-Jayant Kumar @ Pappu that he entered in the shop and pulled the victim Maniram out of shop. He gave a slap because Maniram was resisting to come out of the shop. It is true that the applicant No. 4-Jayant Kumar @ Pappu gave a slap inside the shop of Maniram. For offence of criminal house trespass, if a person goes inside the shop to commit an offence then such overt act amounts to house trespass or after entering in the house/shop he continued to remain there and commits any crime then still that offence comes within the purview of house trespass. The testimony of the victim was duly corroborated by statement of complainant-Munnidevi (PW-2), timely lodged FIR Ex. P-1 and various medical reports by which such injuries were found to the victim. Hence, it is proved beyond doubt that the applicant No. 4-Jayant Kumar @ Pappu had entered in the shop of the victim Maniram, where movable property, etc. were kept inside the shop and it was a house in eyes of law, hence, when his purpose of entry was not lawful, he had committed the offence of house trespass.
7. The category of offence of various house trespass starts from section 448 to various other provisions in the IPC. For 5 Cr.R. No. 98/2012 commitment of offence under section 452 of IPC, it was for the prosecution to prove that the applicant No. 4-Jayant Kumar @ Pappu entered in the house with preparation to commit the assault, etc. It would be apparent that each of the applicant was armed with weapon, whereas, it is not alleged by Maniram (PW-1) or Munnidevi (PW-2) that the applicant No. 4-Jayant Kumar @ Pappu had entered in the shop with any weapon and, therefore, it would be said that he entered into the premises with preparation to cause assault. He gave a slap to victim Maniram because he was resisting in coming out of the shop. None of the applicants had damaged any property of the shop, on the contrary, the victim Maniram was pulled outside of the shop and thereafter he was assaulted, hence, it could not be said that the applicant No. 4-Jayant Kumar @ Pappu entered in the shop with preparation to assault and, therefore, the house trespass was done by the applicant No. 4-Jayant Kumar @ Pappu which falls within the purview of section 451 of IPC and not within the purview of section 452 of IPC.
8. However, there is concurrent findings of the Courts below relating to the offence under section 452 of IPC done by the applicant No. 4-Jayant Kumar @ Pappu and generally no interference should be done by the revisional court in concurrent findings of the Courts below and no reappreciation of evidence should be done. Under these circumstances, it would not be appropriate to interfere in 6 Cr.R. No. 98/2012 the conviction of offence under section 452 of IPC of applicant No. 4- Jayant Kumar @ Pappu. If any perverse judgment has been passed by the courts below then the revisional court may reverse the judgment of the courts below, but in the present case, if the applicant No. 4-Jayant Kumar @ Pappu is found guilty of offence under section 451 of IPC then still the order of sentence is to be passed for that offence and, therefore, it makes no much difference to the applicant No. 4-Jayant Kumar @ Pappu, if he is acquitted from the charge of section 452 of IPC and convicted of offence under section 451 of IPC because he remained in the custody during the revision for approximately more than a month and looking to his sentence, it is possible that his sentence either for offence under section 452 of IPC or section 451 of IPC would remain same in the present case and, therefore, it would not be appropriate to interfere in the concurrent findings of the courts below of conviction under section 452 of IPC.
9. So far as the sentence is concerned, the main offence done by the applicant No. 4-Jayant Kumar @ Pappu is compoundable and result is that he is acquitted from the conviction and sentence of the main charge. It would also be apparent that the trial court has directed that the sentence shall run concurrently and, therefore, if conviction and sentence of main offence shall set aside, then it would be injustice, if the applicant No. 4-Jayant Kumar @ Pappu is separately sentenced for offence undere section 452 of IPC, however, 7 Cr.R. No. 98/2012 he remained in custody for more than a month during revision and therefore, in the light of compromise which took place between the parties, it would be appropriate to reduce the sentence of offence under section 452 of IPC of applicant No. 4-Jayant Kumar @ Pappu to the period for which he remained in custody.
10. On the basis of aforesaid discussions, the revision filed by the applicants is hereby partly allowed. The conviction of offence under section 452 of IPC is maintained, but sentence is reduced to the period for which he remained in custody during trial, appeal and revision. No change in fine amount. However, each of the applicants would be entitled to get the fine amount back which was deposited for offence under section 148 and 325 r/w section 149 of IPC.
11. Copy of this order be sent to the Court below for information and compliance.
(N.K. GUPTA) JUDGE (01/03/2016) Durgekar*