THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE NO.1764 OF 2003 ORDER: 1 Second respondent herein filed a private complaint against the petitioners before the learned 2nd Additional Judicial Magistrate of I Class, Kadapa for the offences punishable under sections 448, 427, 295 and 506 (1) of IPC and the same was referred to the Police for investigation and report. The police after registering the same as a crime and conducting investigation, however, referred the matter as false. Aggrieved thereby the second respondent filed a protest petition before the court below, which was taken on file by the learned Magistrate as C.C.No.86 of 2000 for the offences punishable under Sections 448, 427, 295 and 506 (1) of IPC. During the course of trial, the complainant examined P.Ws.1 to 4 and got marked Exs.P.1 to P.15. Though no oral evidence was adduced, Exs.D.1 to D.4 were marked on behalf of the defence. The learned Magistrate having analysed the entire evidence came to the conclusion that the petitioners are guilty of the said offences. However, the learned Magistrate, taking the fact that the accused 3 to 5 are students and are below the age group of 25 years into consideration, released them under the provisions of the Probation of Offenders Act on executing bond for an amount of Rs.5,000/- each with two sureties for the like sum each and with a direction to maintain good behaviour for a period of two years. Further, the trial court, taking a lenient view, instead of sentencing the petitioners who are accused 1 and 2 to suffer imprisonment, sentenced them to pay a fine of Rs.1,000/- each for each of the offences, totalling to Rs.4,000/- each, in default to suffer simple imprisonment for a period of three months each for the offences punishable under sections 448, 427, 295 and 506 (1) of IPC. The trial court further observed that out of the total fine amount of Rs.8,000/- collected from the petitioners, an amount of Rs.4,000/- shall be given to P.W.1 towards compensation as provided for under section 357 Cr.P.C. As against the said judgment dated 12.11.2001, the petitioners preferred Criminal Appeal No.257 of 2001 and the learned III Additional Sessions Judge, Kadapa by his judgment dated 02.07.2003 partly allowed the said appeal and set aside the conviction and sentence imposed by the trial court against the petitioners 1 and 2 for the offences punishable under sections 295 and 506(1) of IPC. However, the conviction and sentence imposed on the petitioners 1 and 2 in so far as offence punishable under sections 427 and 448 of IPC is concerned, the same is confirmed. Further, the finding of the trial court with regard to the release of the petitioners 3 to 5 under the provisions of the Probation Of Offenders Act for maintaining peace and good behaviour for a period of two years is also confirmed. Aggrieved thereby the accused preferred this revision. 2 Facts in brief are that P.W.1 is a resident of Muradia Nagar, Kadapa and that his father passed away on 02.03.1990 at Bombay and his body was brought to Kadapa and was cremated on 04.03.1990 at the graveyard of Alimura Sha Darga situated at a distance of 20 feet from his house. P.W.1 constructed a tomb and arranged an iron mesh around it and used to perform ‘urs’ at the tomb for which the first petitioner objected. Thereupon P.W.1 filed a suit and obtained an order from the competent civil court restraining the petitioners from demolishing the tomb. On 17.04.1999 at 10.30 p.m. about 50 people came there at the behest of the petitioners, threatened P.W.1 and others and high handedly demolished the tomb of the father of P.W.1. Thereafter P.W.1 approached the police for help, but as there was no action from the police, he filed private complaint before the trial court. 3 Sri C. Sadasiva Reddy, learned counsel for the petitioners vehemently contended that both the courts below erred in convicting the petitioners for the offence punishable under section 448 of IPC since the place of offence is a tomb, which, at any stretch of imagination, cannot be construed as a house or building as defined under section 442 of IPC. When once it does not satisfy the requirements of 442 of IPC, it cannot be said that the petitioners have committed the offence punishable under section 448 of IPC. The learned counsel for the petitioners further contended that there are no specific overt acts against the petitioners and hence the finding of the courts below in convicting them for the offence punishable under section 427 of IPC is erroneous. 4 Heard the learned Additional Public Prosecutor. 5 In view of the specific contention raised by the learned counsel for the petitioners that the place where the offence was alleged to have been committed is a tomb, which is not a house or building as defined under section 442 of IPC, this court deemed it appropriate to refer to the essential ingredients of the Section 448 of IPC as defined in Section 442 of IPC. In order to bring home the guilt of an accused person for the offence punishable under section 448 of IPC, the prosecution has to establish that a) the accused committed criminal trespass; b) that he trespassed by unlawfully entering into or by remaining on the property unlawfully after initial lawful entry; c) that such trespass was in respect of a building tent or vessel; d) that such building, tent or vessel was used as a human dwelling or as a place of worship or as a place for storing property. 6 Keeping in mind the above ingredients, when looked into the evidence available on record, P.W.1 i.e. the complainant has categorically stated that he used to offer prayers at the tomb where his father was cremated. Hence the said place can be taken as a place of worship and in view of the definition of house trespass under section 442 of IPC “entering into the place of worship with a view to commit offence is house trespass” it can be said that the petitioners have committed the alleged offence as they destroyed the grills and the tomb on 17.04.1999. 7 Further, according to Oxford Dictionary tomb means a monument to a dead person erected over their burial place. So naturally P.W.1 will go to the said tomb where the corpus of his father was cremated and worship. In view thereof, the possession of P.W.1 over the said tomb cannot be ruled out and he got every right to protect the said tomb and its precincts. Further, may be it is true that the place of offence is a tomb, but it shall be remembered that a tomb cannot come into existence on its own unless there is some sort of construction and when once there is a construction it shall be construed that it is a building. Hence this court has no hesitation to come to the conclusion that the place of offence i.e. tomb is a place of worship. Hence, it definitely attracts the ingredients of section 442 of IPC punishable under section 448 of IPC. Thus it can definitely be held that the petitioners have committed the said offence punishable under section 448 of IPC. 8 In view of the above discussion I am unable to agree with the contention raised by the learned counsel for the petitioners that the prosecution failed to bring home the guilt of the petitioners for the offence punishable under section 448 of IPC. 9 Coming to the next allegation that the petitioners have demolished the tomb and thereby committed an offence punishable under section 427 of IPC, there is abundant evidence available on record in that regard. It is the categorical evidence of P.W.4 that the petitioners along with other coolies came to the tomb on 17.04.1999 and demolished the tomb with crowbars and the petitioners have not taken any pains to rebut the said evidence. Hence, it can safely be held that the complainant has proved the guilt of the petitioners for the offence punishable under section 427 of IPC. 10 In the light of the above discussion, I see no merits in this revision and accordingly the same is dismissed. Since both the courts below have already taken a lenient view and have imposed punishment of fine alone on the petitioners 1 and 2, and the courts below keeping in view the age of the petitioners 3 to 5 released them under the provisions of the Probation of Offenders Act for maintaining peace and good behaviour for a period of two years the petitioners do not deserve any commiseration in this revision. -------------------------- Hon’ble Sri TGK, J. 01 -10 -2010. Kvsn