GOPALAN & ORS vs STATE OF KERALA

The revision petitioners herein are the ten accused in C.C 136/2003 of the Chief Judicial Magistrate''s Court, Pathanamthitta. They faced

prosecution in the court below under Sections 143, 147, 148, 452, 447, 427, 324 and 506 (ii) read with 149 I.P.C, on the allegation that at about

12.30 in the night on 22.11.2002, they all trespassed into the property of one Gopalakrishna Pillai, in prosecution of the common object of forming

a road through his property illegally, and they all collectively destroyed the improvements and formed a road along the southern boundary of the

property of the said Gopalakrishna Pillai, and after that they all trespassed into his house, intimidated him, and also inflicted simple injuries on his

body with weapons like stick. The crime was registered by the Police on the First Information Statement given by the said Gopalakrishna Pillai.

After investigation, the Police submitted final report in court.

All the accused pleaded not guilty to the charges framed against them by the trial court. The prosecution examined 8 witnesses and proved

Exts.P1 to P10 documents in the trial court. The MO1 to MO3 properties were also identified during trial. These include the pieces and remnants

of the articles destroyed in the process of forming a road. When examined under Section under Section 313 Cr.P.C, the accused denied the

incriminating circumstances and projected a defence of total denial. The further defence projected by him is that a false case was foisted by the

complainant due to the then subsisting civil dispute between the parties. The accused did not adduce any oral evidence in defence, but Exts.D1 and

D2 were marked.

On an appreciation of the evidence, the trial court found all the accused guilty. On conviction, they were sentenced to undergo rigorous

imprisonment for two years each and to pay a fine of Rs.1000/- each under Section 452 read with 149 I.P.C, to undergo rigorous imprisonment

for one year each under Section 324 read with 149 I.P.C, to pay a fine of Rs.1000/- each under Sections 506 (ii) and 427 read with 149 I.P.C,

and to pay a fine of Rs.500/- each under Sections 143, 147, 148 and 447 I.P.C. A portion of the amount of fine was also ordered to be given as

compensation to PW1 and PW2 under Section 357 (1) (b) Cr.P.C. Aggrieved by the judgment of conviction, the accused approached the Court

of Session, Pathanamthitta with Crl.A 184/2005. In appeal, the learned Additional Sessions Judge (Adhoc-II), Pathanamthitta confirmed the

conviction and sentence, and accordingly dismissed the appeal. Now the accused are before this court in revision challenging the legality and

propriety of the conviction and sentence.

On hearing both sides, and on a perusal of the materials, I find that the prosecution has proved the incident of trespass, mischief and assault

alleged in this case, but the sections under which the accused were convicted by the court below require alteration. Of the eight witnesses

examined in the trial court, PW1 is the de facto complainant and PW3 is his son. PW2 is a neighbour, who witnessed the incident. All the three

witnesses have given consistent evidence proving the alleged trespass, mischief and assault. I find no reason to disbelieve them or to reject their

evidence. Of course, I find that the trespass alleged in this case will not come under Section 452 I.P.C. What is punishable under Section 452

I.P.C is house trespass with preparation to cause hurt. What is at the best proved in this case is house trespass with intention to cause hurt, and

that is punishable only under Section 451 I.P.C. The alleged house trespass was made after the trespass into the property of PW1. That is why the

court below convicted the accused under Section 447 I.P.C also. The alleged house trespass cannot be said to be a continuation of the trespass

made to the property. The object of the accused was only to form a road along the southern boundary of the property of PW1. Having formed

such a road by an act of trespass, they could have stopped it there, but they further trespassed into the house of the complainant and inflicted

injuries on his body also. In such a situation, the trespass to the property and the trespass into the house can be dealt with separately, and there can

be separate convictions also.

Of course, it is true that PW1 could not specify and identify the weapon with which the accused inflicted injuries on his body. The Doctor who

examined PW1 at the hospital was examined as PW7. The Doctor has given evidence regarding the simple injuries found on the body of PW1 on

examination. The details are contained in the Ext.P5 wound certificate issued by him. I find that PW1 had sustained simple injuries in the alleged

incident of trespass and mischief. But in the absence of proper evidence regarding the weapon of offence, the finding can be only under Section

323 I.P.C. The chopper identified during trial is not the weapon with which the injuries were inflicted on the body of PW1. MO3 is a broken

spade but that is a weapon used for the construction of the road, and not for infliction of injury. Thus, I find that there is no satisfactory evidence to

prove infliction of injury voluntarily with a weapon in this case, but a simple assault on the body of PW1 and infliction of simple injuries otherwise

than with weapon is well proved. This is punishable under Section 323 I.P.C.

The evidence given by PW1 to PW3 will convince the court that the ten accused and some others trespassed into the property of PW1 in the

night and they formed a road along his southern boundary by an act of trespass. There is reason to believe that the accused did such acts as part of

a criminal design hatched by them.

The evidence given by the material witnesses will convince the court that the trespass made by the accused to the property of PW1, and the

formation of road without his consent, was done by them in prosecution of the criminal object designed by them. I find no reason to disbelieve

PW1 to PW3, or to reject their evidence on facts. All the three witnesses have given clear evidence regarding the persons who trespassed into the

property, and formed a road illegally by an act of trespass. All are consistent as to how they could clearly see and identify each of the accused.

They have also given evidence regarding the light in which they saw the accused. On this aspect, the evidence stands not discredited. Of course, it

is true that the witnesses could not specifically say the overt act committed by each of the accused. In an incident like this involving so many

accused, and that too in the night, the witnesses may not be able to say specifically the overt act committed by each of the accused. The failure on

the part of the witnesses to specify such acts cannot be said to be an infirmity or defect. I find that the three witnesses have given definite and

consistent evidence proving the alleged acts of trespass and mischief. I find that the conviction is liable to be confirmed subject to the alterations

mentioned above as regards the house trespass and infliction of injuries.

In the result, the conviction against the revision petitioner in C.C.No. 136 of 2003 of the court below, confirmed by the Court of Session,

Pathanamthitta, in Crl.A.No. 184 of 2005 will stand confirmed, subject to the alterations that the conviction under Section 452 IPC will stand

altered to Section 451 IPC, and the conviction under Section 324 IPC will stand altered to Section 323 IPC. Consequently, the jail sentence

imposed by the courts below under Sections 452 and 324 will stand set aside, and instead, they are convicted in revision under Sections 451 and

323 IPC with the aid of Section 149 IPC, and they are sentenced to pay a fine of Rs. 1,000/- each under the two Sections. On failure to pay the

fine amount, the accused will have to undergo a default sentence of simple imprisonment for three months. The conviction and sentence under

Sections 143, 147, 148, 447, 427 and 506(ii) IPC with the aid of Section 149 IPC will stand confirmed in revision, and the default sentence

thereon is maintained. 1/3rd of the total amount of fine collected from the accused shall be paid to PW1, and another 1/3rd of the fine amount shall

be paid to PW2 under Section 357(i)(b) Cr.P.C.. To that effect, the directions of the courts below will stand modified. The revision petitioners will

surrender before the trial court within three weeks from this date to make payment of the fine amount voluntarily, on failure of which, steps shall be

taken by the trial court to realize the amount of fine, or to enforce the default sentence.