IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 CRL.A.No. 1014 of 2003() ------------------------ SC.34/2002 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANT(S): ACCUSED: ---------------------- 1. APPUKUTTAN, S/O. PAPPU, MUNDAMATTATHILAYA MAROORTHEKKATHIL VEEDU, ONAMTHURUTHU KARA, ONAMTHURUTHU VILLAGE. 2. BABU, S/O. APPUKUTTAN, -DO-. 3. PRABHAKARAN, S/O.PAPPU, -DO-. 4. RAVI, S/O. RAMAN, MUNDAMATTATHILAYA MAROORTHEKKATHIL VEEDU, ONAMTHURUTHU KARA, ONAMTHURUTHU VILLAGE. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. . PUBLIC PROSECUTOR SRI.K.S. SIVAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-09-2009,THE COURT ON 22/09/2009 DELIVERED THE FOLLOWING: CR V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1014 of 2003 * * * * * * * * * * * * * * * * * * Dated: 22nd September 2009 JUDGMENT The four accused persons in S.C. No. 34 of 2002 on the file of the Addl. District and Sessions Court (Adhoc) II, Kottayam, are the appellants in this appeal. The appellants challenge the conviction entered and the sentence passed against them for an offence under Sec. 451 read with Sec. 34 I.P.C. 2. The case of the prosecution can be summarised as follows:- About 2 ½ years prior to the occurrence, for the purpose of widening the pathway leading to the house of the accused a laterite wall in the property of the 58 year old deceased Baby was demolished on the understanding that the accused would re-construct the laterite wall within 2 ½ months. But, they postponed the construction of the laterite wall which was, however, constructed only after Crl. Appeal No. 1014 of 2003 -:2:- about 2 ½ years. Deceased Baby who was a retired Head Master was not happy with the new construction since it did not conform to the height of the previous laterite wall which was demolished. On 12-8-2001 at about 8 a. m. the 4 accused persons criminally trespassed upon the property of the deceased situated at Onamthuruthu near Kurumattoor Church and voluntarily caused hurt to the deceased by beating him on the face and other parts of the body and when the deceased stepped out to his courtyard the accused persons pushed him and assaulted him both from the courtyard as well as from outside the gate. Accused Nos. 2 and 4 had slapped the deceased on his face. Eventhough P.W.2 (Jollykutty) the wife of the deceased, Annamma (CW2) the mother of the deceased had implored the accused not to cause harm to the deceased who was a sickly person and who might succumb to the injuries, the accused persons did not pay any heed to the entreaties of P.W.2 and CW2 and on account of the hurt caused by the accused the deceased who was a heart patient slumped to Crl. Appeal No. 1014 of 2003 -:3:- the ground. Eventhough he was rushed to the hospital he succumbed to the shock and injuries at 9 a.m. on 12-8- 2001 itself . The accused have thereby committed offences punishable under Sections 449 and 304 Part – II read with Sec. 34 I.P.C. 3. On the accused pleading not guilty to the charge framed against them by the court below for offences punishable under Sections 451 and 304 I.P.C. read with Sec. 34 I.P.C., the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as PWs 1 to 9 and got marked 9 documents as Exts.P1 to P9 and a lungi and shirt as Mos 1 and 2. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They filed a written statement to the following Crl. Appeal No. 1014 of 2003 -:4:- effect:- On the date of occurrence the deceased and CW4 the Panchayath member had called the accused to the house of the deceased for a mediation talk. During the mediation talk the deceased lost his temper and asked accused Nos. 2 to 4 to go out of the room. The deceased forcibly pushed them from his sit-out till the gate. The deceased then got engaged in an altercation with them from outside the gate. They are innocent. 5. Since this was not a case of no evidence for the prosecution, the court below did not pass an order of acquittal under Section 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on their defence. 6. The learned Addl. Sessions Judge as per judgment dated 13-6-2003 acquitted the appellants of the offence punishable under Sec. 304 Part II I.P.C. but convicted them of offences punishable under Sections 323 and 451 I.P. C. For the conviction under Sec. 323 I.P.C. Crl. Appeal No. 1014 of 2003 -:5:- each of them was sentenced to rigorous imprisonment for six months and to pay fine of Rs. 750/- and on default to pay fine to undergo simple imprisonment for one month. For the conviction under Sec. 451 I.P.C. each of the appellants was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/- and on default to pay the fine to suffer simple imprisonment for two months. The substantive sentence of imprisonment was directed to run concurrently. The fine amount, upon realisation was directed to be paid to P.W.2 (Jollykutty) the widow of the deceased as compensation. It is the said judgment which is assailed in this Appeal. 7. I heard the learned counsel appearing for the appellant as well as the learned Public Prosecutor. 8. On behalf of the appellants, their learned counsel made the following submissions before me in support of his fervent plea for the acquittal of the appellants:- P.W.4 (Ajay Alex) who was the independent occurrence witness turned hostile to the prosecution. P.W. Crl. Appeal No. 1014 of 2003 -:6:- 2 (Jollykutty) is none other than the wife of the deceased and P.W.3 (Elsy) is a servant who was residing in the house of the deceased. Apart from the fact that the interested testimony of P.Ws 2 and 3 is full of contradictions, omissions and exaggerations, in Ext.P2 first information statement what P.W.2 stated was that it was A2 who slapped on the face of the deceased. But, as P.W.2, she says that it was A1 who slapped the deceased on his face. As against the testimony of P.W.2, P.W.3 stated that it was A2 who slapped on the face of the deceased. Both P.Ws 2 and 3 would say that the rest of the accused persons had also beaten the deceased on various parts of his body. P.W.3 even claims to have seen tenderness on the body of the deceased. But Ext.P4 inquest report and Ext.P1 post mortem certificate do not show any external injuries or tenderness on any part of the body of the deceased. The three ante mortem injuries noted in the postmortem certificate had been explained by the autopsy surgeon himself as due to the use of the defibrillator which was Crl. Appeal No. 1014 of 2003 -:7:- evidently pressed into service as a resuscitation measure at the Karithas Hospital at Ettumanoor by CW 19 the doctor who was not examined by the prosecution. When the oral evidence adduced by the eye-witnesses do not support the prosecution case and there is no medical evidence to corroborate the alleged overt acts attributed to the accused, the court below was not justified in holding that the accused had committed the offence punishable under Section 323 I.P.C. The only other offence is one punishable under Sec. 451 I.P.C. for which the prosecution was bound to prove that the accused had criminally trespassed into the house of the deceased for the purpose of committing any of the offences alleged. When there was no acceptable evidence to substantiate the allegation of hurt punishable under Sec. 323 I.P.C, mere entry into the house of the deceased cannot amount to criminal trespass. In Appukuttan v. Prakasan - 2006 (4) KLT SN 27 it has been held that in order to constitute the offence punishable under Sec. 451 I.P.C. it should be proved that the accused is Crl. Appeal No. 1014 of 2003 -:8:- guilty of an offence punishable under Sec. 323 or 497 I.P.C. Mere intention to commit those offences cannot attract an offence punishable under Sec. 451 I.P.C. if the accused after entering the house, have not committed the intended offence. This was not a case in which the accused had voluntarily entered the house of the deceased. They were invited to the house for a mediation talk in the presence of CW4 the Panchayath member and it was the deceased who grew wild during the midst of the talks. Even P.W.2 the wife of the deceased was unaware that her husband was a heart patient and would succumb to the morbidity at the slightest provocation. If so, the accused who were in the dark about the morbid condition of the deceased cannot be found guilty, if in the course of the mediation talk the deceased got excited and that was sufficient for him succumb to the illness he was suffering from. The conviction recorded by the court below cannot therefore, be sustained. 9. I am afraid that I cannot agree fully with the Crl. Appeal No. 1014 of 2003 -:9:- submissions made on behalf of the appellants. It is true that the cause of death as opined by P.W.1, the autopsy surgeon in Ext.P1 post Mortem Certificate is that the death of the deceased was due to occlusion of the coronary artery – a disease of the heart. The findings in Ext.P1 show that the walls of the coronary arteries were thickened and calcified and right coronary artery was completely occluded by a thrombus looking mass. The left ventricular wall showed a fibrotic area of 5x2x1 c.m. The aorta showed atheromatous plaques with ulceration and calcification. Baby, the retired headmaster was evidently hard pressed for money to undergo a bye-pass surgery. No doubt, there are omissions, deviations and fringe exaggerations in the testimony of P.Ws 2 and 3. Such descripancies are bound to occur even in the testimony of the most truthful witnesses, particularly, when they are giving evidence after a lapse of time. The occurrence was on 12-8-2001. The prosecution witnesses were giving evidence in the end of March 2003. Hence there are bound to be some Crl. Appeal No. 1014 of 2003 -:10:- contradictions, omissions, exaggerations and deviations in the oral testimony. But the main core of the testimony of P.W.2 stands unshaken. She is a retired teacher. Her husband, deceased Baby was a retired headmaster. 8. It is true that CW4 the panchayath member in whose presence there was a mediation talk in the house of the deceased, was not examined by the prosecution. But he was admittedly in Germany at the time of trial and the prosecution was obviously not able to examine him as a witness. According to P.W.2 for the purpose of widening the pathway leading to the house of the first accused, the deceased had permitted the accused to demolish the laterite wall of the deceased. The understanding was that the first accused would re-construct the wall within two months. But he did not keep his word and it was only after 2 ½ years that he finally constructed the wall and that was not conforming to the height of the previous wall. When two days prior to the occurrence the deceased asked the accused about it they intimidated him. The 2nd accused is Crl. Appeal No. 1014 of 2003 -:11:- the son of the first accused and the 3rd accused is the younger brother of the first accused. The 4th accused is a close relative of accused 1 to 3. Going by the testimony of P.W.2 while the first accused and the deceased were having a talk in the drawing room of the deceased in the presence of CW4 the Panchayath member, the rest of the accused barged into the room and created a commotion. PWs 2 and 3 had deposed that even though the deceased asked the accused to get out of his property they still remained there and went on challenging him. There must have been a push and pull as deposed to by P.Ws 2 and 3. There is no evidence to the effect that all or any of the accused were invited to the house of the deceased for a talk. Even according to the memorandum of evidence filed by the police along with the charge sheet the role of CW4 was only to prove that the occurrence took place in his presence and he had personal knowledge about the promise by the first accused to re-construct the laterite wall after its demolition and also about the dispute between the deceased and the Crl. Appeal No. 1014 of 2003 -:12:- accused with regard to the delay in the construction and the grievance of the deceased regarding the unsatisfactory nature of the construction. Hence, the non-examination of CW4 does not assume much importance. Even assuming that the accused had lawfully entered the house of the deceased for having a mediation talk in the presence of CW4, the occurrence as spoken to by Pws 2 and 3 goes to show that the accused after entering the house unlawfully remained there and had even intimidated and insulted and annoyed the deceased when they were called upon to quit the house. Hence, that conduct of the accused will clearly come within the latter part of Sec. 441 I.P.C. which defines criminal trespass. “Criminal trespass” is defined by Sec. 441 I.P.C. which reads as follows: “441. Criminal trespass – Whoever enters into or upon 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, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, Crl. Appeal No. 1014 of 2003 -:13:- is said to commit “criminal trespass”. This offence is punishable under Sec. 447 I.P.C. But when criminal trespass is committed in a dwelling house, or any building, tent or vessel used for human dwelling, it becomes, “house trespass” as defined under Section 442 I.P.C. and punishable under Sec. 448 I.P.C. The offence intended to be committed so as to constitute “criminal trespass” is any offence. But if such offence intended to be committed is one punishable with imprisonment and the criminal trespass is committed in a dwelling house, then the offence which is made out is not one punishable under Sec. 448 I.P.C. but one punishable under Sec. 451 I.P.C. which is an aggravated form of house trespass. Admittedly, the main part of the occurrence in this case took place inside the house of the deceased and thereby attracting house trespass as defined under Section 442 I.P.C. But it is not a simple house trespass punishable under Sec. 448 I.P.C. The testimony of Pws 2 and 3 will go to Crl. Appeal No. 1014 of 2003 -:14:- show that the accused had assaulted the deceased and had caused annoyance to him even after they were asked to go out of the house. Thus, the accused were remaining in the property unlawfully to the annoyance of the deceased and with the intention of committing criminal intimidation and insult and they had even assaulted the deceased within the meaning of Sec. 351 I.P.C. as interpreted in Mathew v. State of Kerala – 1992 (2) KLT 413. Merely because there is no medical evidence to show that the deceased had external injuries on his person it does not follow that the offence punishable under Sec. 451 has not been committed. A close reading of Sec. 451 I.P.C. does not indicate that a person who commits house trespass can be convicted under the section only if he is found guilty of committing any offence punishable with imprisonment . If criminal trespass into a dwelling house is committed with the intention of committing any offence punishable with imprisonment then the offence punishable under Sec. 451 I.P.C. is complete even if the offender does not succeed in Crl. Appeal No. 1014 of 2003 -:15:- committing the offence which he intended to commit. The last part of Section 451 I.P.C. clearly indicates that if the intended offence is theft then it is considered to be a still more aggravated form of house trespass. If a person commits criminal trespass into a dwelling house with the intention of committing an offence punishable with imprisonment and if he succeeds in accomplishing his intention by committing those offences, then he will not only be committing an offence punishable under Sec. 451 I.P.C. but also the other offences which he has committed. Hence, Sec. 451 I.P.C. will be attracted even if the trespasser does not accomplish the committing of the other offences punishable with imprisonment which he intended to commit. I need not consider the correctness or otherwise of the decision reported in 2006 (4) KLT SN 27 since the evidence already discussed above shows that the accused persons remained in the house even after they were asked to get out and this conduct of the accused had evidently caused insult or annoyance to the deceased who Crl. Appeal No. 1014 of 2003 -:16:- was also intimidated and assaulted. Hence, I do not find any error in the conviction recorded by the court below for the offence punishable under Sec. 451 I.P.C. 9. As for the conviction under Sec. 323 I.P.C, in the absence of any evidence to the effect that deceased Baby suffered bodily pain, disease or infirmity as a proximate cause of the acts of the accused, the conviction becomes vulnerable. Deceased Baby did not survive to tell the Police or the Court that he sustained bodily pain on account of the assault by the accused. There is also no corroborating medical evidence to support the prosecution case. Hence, the said conviction cannot be sustained. 10. The result of the foregoing discussion is that the conviction entered under Section 323 I.P.C. is unsustainable and is accordingly set aside. The appellants are found not guilty of the offence punishable under Sec. 323 I.P.C. and are acquitted of the same. The conviction recorded by the court below under Sec. 451 I.P.C. is however, confirmed. 11. In the facts and circumstances of the case, I do Crl. Appeal No. 1014 of 2003 -:17:- not think that the appellants deserve penal servitude by way of incarceration for the conviction under Sec. 451 I.P.C. Interests of justice will be adequately met by imposing a sentence of imprisonment till rising of court and an appropriate compensation. Accordingly, the sentence imposed on the appellants under Sec. 451 I.P.C. is set aside and instead they are each sentenced to imprisonment till rising of court and to pay compensation of Rs. 7,500/- each to P.W.2, the widow of deceased Baby under Sec. 357 (3) Cr.P.C. . The said compensation amounting to Rs. 30,000/- (Rupees thirty thousand only) in all shall be deposited before the trial court within one month from today failing which the defaulting appellant shall undergo simple imprisonment for three months by way of default sentence. In the result this appeal is allowed in part as above. Dated this the 22nd September 2009. V. RAMKUMAR, (JUDGE) ani. Crl. Appeal No. 1014 of 2003 -:18:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. Appeal No. 1014 of 2003 * * * * * * * * * * * * * * * * * * Dated: 22nd September 2009 JUDGMENT