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The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973
Section 320 in The Indian Penal Code, 1860
Section 341 in The Indian Penal Code, 1860
Section 506 in The Indian Penal Code, 1860
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Thakoorjee And Anr. vs State Of Madras (Now Adnhra) And ... on 4 February, 1955
Ramamurthy (M) vs State Of Madras And Ors. on 3 April, 1956
Gaddam Narsa Reddy And Ors. vs Collector, Adilabad District And ... on 21 August, 1981

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Andhra High Court
Konduri Venkata Rao And Others. vs The State Of A.P.Represented By ... on 10 March, 2011

THE HON'BLE SRI JUSTICE K.G. SHANKAR

CRIMINAL REVISION CASE.No.237 of 2006

10-03-2011

Konduri Venkata Rao and others.

The State of A.P.Represented by its Public Prosecutor

Counsel for the Petitioners: Sri Raja Reddy Koneti

Counsel for Respondent : Public Prosecutor

:ORDER:

A curious question has been posed by Sri Raja Reddy Koneti, learned counsel for the revision petitioners, with reference to Section 452 of Indian Penal Code (for short IPC). He contended that the accused had not committed the offence punishable under Section 452 IPC since the alleged criminal trespass by the accused was into the house of P.W.2, whereas the offence is alleged to have been committed against P.W.1 and that as the very offence of criminal trespass defined under Section 441 IPC is not made out, the question of the accused being guilty for the offence under Section 452 IPC does not arise.

2. As many as 19 accused were charged for the offences under Sections 147, 452, 325, 354, 427, 341 and 506 (2) IPC with the aid of Section 149 IPC. The learned Assistant Sessions Judge, Bapatla found A.1 to A.3 and A.8 guilty of the offences under Sections 452 and 353 IPC. He acquitted the rest of the accused for all the charges levelled against them. He also acquitted A.1 to A.3 and A.8 for all the charges levelled against them except the offences under Sections 452 and 353 IPC. He sentenced A.1 to A.3 and A.8 to four years rigorous imprisonment and fine of Rs.500/- each for the offence under Section 452 IPC. Holding that the offence under Section 353 IPC is an integral part of the offence under Section 452 IPC, the learned trial Judge did not impose any punishment for the offence under Section 353 IPC although A.1 to A.3 and A.8 were convicted for the offence under Section 353 IPC also.

3. The convicted accused in A.1 to A.3 and A.8 preferred appeal impugning the judgment of conviction and sentence of the trial Court. The learned VII Additional Sessions Judge, Guntur allowed the appeal in part. He found A.1 to A.3 and A.8 not guilty for the offence under Section 353 IPC and acquitted them of the same. He, however, confirmed the conviction and sentence of the accused recorded by the trial Court for the offence under Section 452 IPC. The four accused in A.1 to A.3 and A.8, consequently, preferred the present revision impugning the judgment of the trial Court and the appellate Court.

4. The point for consideration is whether the prosecution has brought home the guilt of the accused beyond reasonable doubt for the offence under Section 452 IPC or for an offence which is of lesser magnitude in the same nature of offences?

P O I N T:

5. Section 452 IPC imposes punishment for house trespass if the accused made preparation to cause hurt to any person or made preparation for assaulting or wrongfully restraining any person and other preparations with intention to cause annoyance to the victim otherwise. Sri Raja Reddy Koneti, learned counsel for the revision petitioners, took me through Section 442 IPC, which defines house trespass. Section 442 IPC defines house trespass as criminal trespass into any building or other human dwelling place.

Section 441 IPC defines criminal trespass. Criminal trespass is entering into or upon the property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. It is on the phrase 'any person in possession', the learned counsel for the revision petitioners places his whole emphasis. It is the contention of the learned counsel for the revision petitioners that it would be criminal trespass, so long as the intimidation, insult etc., are against a person in possession of the property, over which the trespass was committed. He submitted that the mere entering onto the land of another without the permission of such another person would not amount to criminal trespass unless the same is accompanied by the intention to cause intimidation, insult or annoyance. The facts relevant to appreciate the contention of the learned counsel for the revision petitioners may briefly be narrated at this stage.

6. There are about 100 families of Potters in village Nanduru. The village is situate near Ponnuru. An extent of Ac.1.40 cents of land belonging to the God and the temple presided over by the God has been treated as community property. It would appear that the family of P.W.1 and six other families were restrained by the community to enjoy the land as the community property, perhaps on the ground that P.W.1 and the members of his family as well as the other six families belonged to Congress party. There were cases before the Courts in connection with the community property of the God. There was a notice to some of the accused and some of the members of their families from the Court of Judicial First Class Magistrate, Ponnuru in connection with the dispute relating to "Devara Gudi" (the temple of the community God). It is the case of the prosecution that the accused suspected the complicity of P.W.1 in the notices that the accused and other members of the community received from the Court of Judicial First Class Magistrate, Ponnuru, perhaps because P.W.1 was a retired Village Development Officer and perhaps because P.W.1 wielded considerable influence on account of his former calling.

7. It is the futher case of the prosecution as well as P.W.1 that P.W.1 entered the house of P.W.2 and sat in the house of P.W.2 with a view to avoid rupture with the mob including all the accused against whom charge sheet was laid. It may be noticed that P.W.3 is the wife of P.W.2.

8. It is the further case of the prosecution that while P.W.1 was inside the house of P.Ws.2 and 3, various accused including the revision petitioners stood in the street in front of the house of P.W.2 and abused P.W.1 and that later they highhandedly entered into the house of P.W.2. It is also the case of the prosecution that the accused and others thereafter beat P.W.1 in the house of P.W.2. However, the accused were ultimately convicted by the appellate Court for the offence under Section 452 IPC only. Consequently, the question whether the accused and others insulted P.W.1 by calling him names and whether the accused subsequently beat P.W.1 in the house of P.W.2 and the other incidents forming part of

res gestae are not relevant in this revision. The only question that falls for consideration is whether entering into the house of P.W.2 by the revision petitioners would be tantamount to trespass punishable under Section 452 IPC.

9. I have already pointed that Section 441 IPC defines criminal trespass. Section 442 IPC defines house trespass as criminal trespass into a dwelling place. The accused were found guilty for the offence under Section 452 IPC. Section 452 IPC provides punishment for house trespass after preparation to cause hurt, assault or wrongful restraint. The basis of Section 452 IPC is house trespass defined under Section 442 IPC. The basis of house trespass is criminal trespass defined under Section 441 IPC.

10. Now, I may refer to the contention of the learned counsel for the revision petitioners with reference to the question of law raised by him. The learned counsel for the revision petitioners contended that assuming that the whole case of the prosecution is proved, the offence under Section 452 IPC is not made out. He pointed out that the alleged trespass was the entering into the house of P.W.2. Admittedly, the accused had nothing to do with P.W.2. They had a grouse against P.W.1. P.W.1 took shelter in the house of P.W.2. To tackle P.W.1, the accused entered into the house of P.W.2. Admittedly the accused were conscious that they were entering into the house of P.W.2. The learned counsel for the revision petitioners, however, contended that even though the revision petitioners entered the house of P.W.2, it would not constitute criminal trespass and house trespass. He pointed out that the trespass must be into the property in possession of the person against whom criminal trespass is committed.

11. Learned counsel for the revision petitioners drew my attention to Section 320 of Criminal Procedure Code (for short Cr.P.C.) in this context. Section 320 (2) Cr.P.C. permits compounding of the offence under Section 451 IPC. Section 451 IPC deals with house trespass with a view to commit an offence. The learned counsel for the revision petitioners drew my attention to the third column in Section 320 (2) Cr.P.C., which contemplates that the person in possession of the house trespassed upon alone is competent to compound the offence under Section 451 IPC. Drawing cue from Section 320 (2) Cr.P.C., the learned counsel for the revision petitioners contended that what is referred to under Section 441 IPC is entering into the property of a person in possession with a view to intimidate, insult or annoy such a person in possession of the property to constitute criminal trespass. Section 451 IPC is fairly clear in this regard. Applying the definition of Section 441 IPC to the present case, the accused entered into the house of P.W.2 with a view to intimidate, insult or annoy P.W.1. This is what the learned counsel for the revision petitioners submits to be not a criminal trespass within the meaning of Section 441 IPC.

12. The contention of the learned counsel for the revision petitioners is certainly hyper technical. At the same time, I do not find any explanation from the prosecution to wriggle out of this situation. If the accused entered the house of P.W.1 with a view to insult P.W1, the accused would be punishable for the offence under Section 452 IPC apart from other offences. However, if the accused entered the house of P.W.2 to insult or annoy P.W.1, who is not in possession of the house and who is not the owner of the property, I agree with the contention of the learned counsel for the revision petitioners that the offence under Section 452 IPC is not made out against the revision petitioners.

13. I would venture to repeat that criminal trespass is committed by the accused when they entered the house of an individual with a view to insult, intimidate or annoy such owner of the house/property. If the accused entered the house of an individual to insult, intimidate or annoy any person other than the owner of the property, it would not constitute criminal trespass. Once the conduct of the accused is not criminal trespass, it would not be house trespass and would not become punishable under Section 452 IPC.

14. In view of the allegation of the prosecution that the accused including the revision petitioners entered the house of P.W.2 with a view to insult, intimidate or annoy P.W.1, the offence under Section 452 IPC is not made out against the revision petitioners. The accused were already acquitted either by the trial Court or by the appellate Court for the rest of the offences levelled against them. The only offence under which the revision petitioners were convicted, and assailed before me is for the offence under Section 452 IPC. Technically, the offence under Section 452 IPC is not made out against the accused. The accused, consequently, are liable to be acquitted of the offences levelled against them.

15. Sri Raja Reddy Koneti, learned counsel for the revision petitioners, also contended on the merits of the case that the offence has not been made out as the evidence of P.W.1 is not consistent with the FIR lodged by him. I do not wish to go into the merits of the evidence of P.Ws.1 to 3 where technically it is found that the offence under Section 452 IPC is not made out as the accused entered into the house of P.W.2 to intimidate P.W.1 and that it, therefore, is not a criminal trespass, is not a house trespass and is not punishable under Section 452 IPC.

16. The trial Court as well as the appellate Court erred in properly appreciating the niceties under Sections 441, 442 and 452 IPC. The finding of the trial Court and the appellate Court in finding the revision Petitioners guilty of the offence under Section 452 IPC is erroneous and is liable to be set aside.

17. The criminal revision case, accordingly, is allowed. The revision petitioners are found not guilty for the offence under Section 452 IPC and are acquitted of the same. The bail bonds of the revision petitioners stand

discharged. The fine amount, if paid by the accused, shall be refunded to the