Bombay High Court
Vicky S/O Gajanan Lone @ Rizwan ... vs State Of Maharashtra, Thr. Pso ... on 27 November, 2017
Bench: R. B. Deo
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,
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
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
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.
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.
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
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
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
