apeal340.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.340 O
F 2016
Vicky s/o Gajanan Lohe @ Rizwan
Ramjan Pathan, Aged about 24 yrs.,
Occu: Labourer, R/o Mankapur,
Behind Raju Convent, Nagpur. ....... APPELLANT
...V E R S U S...
State of Maharashtra, through
P.S.O., Police Station, Jaripatka,
Nagpur. ....... RESPONDENT
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Shri Poras Kotwal, Advocate holding for Shri D.M. Dixit,
Advocate for Appellant.
Shri P.S. Tembhare, APP for Respondent/State.
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CORAM: ROHIT B. DEO , J.
DATE: th
27 NOVEMBER,
201
7 .
ORAL JUDGMENT
1] The appellant is challenging the judgment and order
dated 25.07.2016 in Sessions Trial 295/2015 delivered by Additional Sessions Judge, Nagpur, by and under which the appellant (hereinafter referred to as "the accused") is convicted for ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 2 offence punishable under sections 294, 323 and 452 of the Indian Penal Code (IPC for short) and is sentenced to suffer rigorous imprisonment for period of three month, one year and five years respectively and to payment of fine of Rs.1000/-, Rs.1000/- and Rs.5000/- respectively. The accused is however, acquitted of offence punishable under section 306 of the IPC. 2] Heard Shri Poras Kotwal, the learned Counsel holding for Shri D.M. Dixit, Advocate for the appellant and Shri P.S. Tembhare, the learned Additional Public Prosecutor for the respondent/State.
3] The learned counsel for the accused, who incidentally is in jail, Shri Kotwal submits that even if the prosecution evidence is taken at face value, no offence punishable under sections 294, 323 or 452 of the IPC is made out. The judgment impugned is against the weight of evidence, is the submission. 4] Per contra, the learned A.P.P. would submit that there ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 3 is ample evidence on record to bring home the charge under sections 294, 323 and 452 of the IPC. The judgment impugned is unexceptionable on facts and in law, is the submission. 5] I have given my anxious consideration to the evidence on record, the submissions canvassed and the judgment of the learned Sessions Judge.
6] I am not inclined to agree with the learned counsel for the accused Shri Kotwal that there is no evidence on record to bring home the charge under section 294 or 323 of the IPC. 7] The learned Sessions Judge has considered the dying declarations on record. The consideration by the learned Sessions Judge of the dying declarations appears to be unexceptionable. The contents of the dying declarations are more than amply corroborated by the evidence of P.W. 1 Sau. Sukhvanta Waghade. I am not persuaded to disturb the conviction of the accused under sections 294 and 323 of the IPC.
::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 4 8] However, the learned counsel for the accused is more than justified in contending that even if the entire evidence is taken at face value, the conviction under section 452 of the IPC is manifestly erroneous and dangerously borders on perversity. 9] Section 452 of the Indian Penal Code reads thus:
452. House-trespass after preparation for hurt, assault or wrongful restrain.-- Whoever commits house-trespass, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
10] The two essential ingredients of offence punishable under section 452 of the IPC is that the accused should have committed house-trespass and that the house-trespass must have preceded and accompanied by preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint.
::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 5 11] It is trite law, that offence under section 452 of the IPC is not proved only because the person having committed house-trespass happens to assault or hurt some other person. The prosecution must prove that the house-trespass was precedent by preparation, as referred to supra. It would be apposite to refer to paragraph 5 of the judgment of the Rajasthan High Court in Dal Chand vs. The State reported in 1966 Cri. L.J. 236 which read thus:
(5) Taking up the first branch of the argument, I must observe that there is a considerable force in it and it must be accepted. It is well settled that there must be clear evidence of preparation for causing hurt to sustain a conviction under S. 452 Indian Penal Code. The fact that a person entered another man's house and committed an assault does not necessarily presuppose such preparation for it may be a case of post hoc ergo propter hoc. The materials on the record of this case show that the fight between the parties developed on account of the complainant having protested against the collection of stones by the accused. The fight was sudden and during the course of the fight the accused took a 'salia' of the cart and inflicted blow upon the complainant. In the circumstances of the case, it is difficult to infer that the accused had made preparation for causing hurt to the complainant. Mr. Singhi appearing for the State made no attempt to counter argument on this aspect of the case.
12] I have not come across any evidence, and the learned ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 6 A.P.P. is not in a position to bring any evidence to my notice, to suggest that the accused committed house-trespass having made preparations for causing hurt to any person. Concededly, the accused and one of the two sisters who unfortunately lost their lives, Monica were in love. The accused did enter the house of Monica and concededly made an effort to impose himself on her family stating that he has been thrown out from the house by his parents. It is more than apparent from the evidence on record, that the accused did assault the father of Monica and the younger sister of Monica. However, the fact that an incident of assault did take place, would in my opinion, not be sufficient to bring home the charge under section 452 of the IPC. Indeed, it is extremely doubtful if the prosecution has proved the first ingredient that the accused must have committed criminal trespass. At any rate, and in any event, there is absolutely no evidence to establish the second ingredient that the criminal trespass must have been precedented by preparations to commit assault etc. 13] The judgment impugned, to the extent the accused is convicted of offence punishable under section 452 of the IPC is ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 ::: apeal340.16.J.odt 7 manifestly erroneous and is set aside.
14] The accused has already undergone the sentence imposed awarded for offence punishable under section 294 and 323 of the IPC.
15] The accused be released from custody forthwith, if not required in any other case.
16] The appeal is partly allowed and disposed of in the above terms.
JUDGE NSN ::: Uploaded on - 27/11/2017 ::: Downloaded on - 29/11/2017 01:50:44 :::