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Being aggrieved, all the accused preferred appeal before the learned Sessions Judge, Bharuch, who vide the impugned judgement and order dated 29th March 2003, confirmed the order of conviction and sentence made by the learned Judicial Magistrate First Class, Rajpipla. Being aggrieved, the applicants have moved the present revision application.

Mr. J. B. Pardiwala, learned advocate with Mr. A. B. Munshi, learned advocate for the applicants has at the outset invited attention to the provisions of section 452 IPC to submit that, to constitute an offence under that section two requirements are required to be satisfied, firstly that the accused must make preparation for causing hurt etc. to any person and secondly after making such preparation he must commit a house trespass. Thus, there must be evidence to substantiate both the aforesaid requirements. Referring to the facts of the present case, it is urged there is no evidence to even remotely suggest that there was any preparation to cause hurt etc. to any person as contemplated under section 452 IPC. It is submitting that this is where both the Courts below have erred inasmuch as neither of the Courts below have considered one of the most important ingredient for constituting the offence under section 452, that is, preparation to cause hurt etc., is missing. It is, accordingly, submitted that even if house trespass is believed, at best, the provisions of section 448 would be attracted, but in no case, would the provisions of section 452 IPC be applicable on the facts of the present case. In the circumstances, the applicants can be held to be guilty only for the offence under section 448 and section 323 IPC and as such, the conviction as well as sentence awarded by the trial Court, as confirmed by the appellate Court, is required to be altered.

However, on the facts of the case, the requirements of house trespass as envisaged under section 442 IPC stand duly satisfied, hence, the offence punishable under section 448 IPC which provides for punishment of for house-trespass is clearly made out. In the circumstances, the conviction of the applicants under section 452 IPC is required to be altered to one under section 448 IPC.

Insofar as the conviction of the applicants for the offences punishable under section 323 read with section 114 of the IPC is concerned, both the Courts below have upon appreciation of the evidence on record, recorded concurrent findings of fact which indicate that the prosecution has successfully established its case against the applicants in so far as the said offence is concerned. The learned advocate for the applicants is not in a position to dislodge the concurrent findings of fact recorded by both the Courts below. In the circumstances, it is not possible to state that the courts below have committed any error in convicting the applicants for the offence under section 323 read with section 114 IPC. The same is, therefore, required to be sustained.

Insofar as the plea for reduction of sentence is concerned, the offence under section 323 IPC is punishable with imprisonment for a term which may extend to one year, or with fine, which may extend to Rs.1,000/-, or with both; and the offence under section 448 IPC is also punishable with imprisonment for a term which may extend to one year, or with fine which may extend to Rs.1,000/-, or with both. In the circumstances, having regard to the fact that the conviction of the applicants is required to be altered as from conviction under section 452 IPC to one under section 448 IPC, the sentence imposed by the trial Court as confirmed by the appellate Court, is also required to be reduced. In the circumstances, keeping in view the fact that for an offence under section 323 as well as section 448 IPC, sentence can also be only by way of fine, the nature of the offence; the fact that the offence came to be committed on the spur of the moment; a period of 13 years has elapsed since the commission of the offence in question; the applicants herein do not have any criminal antecedents, it would be in the interest of justice if the sentence imposed upon the applicants No.1 and 2 is altered to one of fine only, as, at this stage, no useful purpose would be served if the applicants No.1 and 2 are required to undergo imprisonment.

For the foregoing reasons, the application partly succeeds and is allowed to the following extent. While maintaining the conviction of the applicants under section 323 read with section 114 IPC, the conviction under section 452 IPC is altered to one under section 448 IPC. Accordingly, in the peculiar facts and circumstances of the case, insofar as the applicants No. 1 and 2 are concerned, the sentence imposed by the learned Judicial Magistrate First Class, Rajpipla as confirmed by the learned Additional Sessions Judge, is altered to one from simple imprisonment of two years to fine of Rs.10,000/- each, in addition to the fine imposed by the learned Judicial Magistrate First Class, Rajpipla. The additional amount of fine shall be paid to the complainant Sudhaben Arvindbhai by way of compensation. The applicant No.3 shall be given the benefit of probation and he shall be released on probation on his entering into a bond for Rs.10,000/- before the Executive Magistrate, Rajpipla for keeping peace and good behaviour, within a period of three weeks from the date of receipt of a copy of this order.