12 November 2024 - Legal Updates

1. Offence Within Restaurant Not ‘House Trespass’ As per Sections 442, 452 IPC: Supreme Court

Observing that a restaurant cannot be said to be either a place used for human dwelling or worship or the custody of the property, the Supreme Court set aside the conviction of a person accused of the offence of “house trespassing after preparation for hurt” under section 452 of IPC ( section 333 of BNS).

The bench of Justice Bela M Trivedi and Justice Satish Chandra Sharma noted that restaurant does not meet the criteria of a “house” under section 442 of IPC (now section 330 of BNS) because it is neither a dwelling, a place of worship, nor a place for the custody of property. Thus, the necessary element for an offence under Section 452 was not fulfilled.

As per Section 442 of IPC, the offence of House Trespass is said to be committed by entering into or remaining in any building, tent, or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property.

Section 452 of the IPC punishes an act of entering or remaining on a property after preparing to cause harm or commit other criminal acts.

“452. House-trespass after preparation for hurt, assault or wrongful restraint.—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.”

It was the case where the appellant-accused had visited the Restaurant, and upon refusal of the restaurant's owner to provide a jug of water for consumption of alcohol, the accused voluntarily caused hurt to the owner with a knife. Thereafter, an FIR under Sections 324 and 452 of IPC was registered against the accused. The trial court convicted the appellant accused, and the High Court affirmed the conviction. Following this, an appeal was preferred before the Supreme Court.

Maintaining the conviction for voluntarily causing hurt under Section 324 of IPC, the court set aside the conviction under Section 452 and noted that since the essential requirement of Section 452 IPC when read with Sections 441 and 442 of IPC was not fulfilled, therefore no offence could be brought under Section 452 of IPC.

The Court observed that “the 'house trespass' being an essential ingredient for convicting a person under Section 452, it has to be proved by the prosecution that the accused committed the house trespass and criminal trespass by entering into or unlawfully remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, as contemplated in Section 442 IPC.”

Upon perusing the facts of the case, the court observed that, admittedly, “the incident had taken place in a restaurant run by the injured which cannot be said to be either a place used for human dwelling or for worship or for the custody of the property. Hence, the very ingredients of the offence under Section 452, namely, the criminal trespass as contemplated in Section 441 and house trespass as contemplated in Section 442 having not been made out by the prosecution, the appellant could not have been convicted for the offence under Section 452 IPC.”

The court partly allowed the appeal, upholding the conviction and sentence for Section 324 IPC but acquitting the appellant under Section 452 IPC.

Since the appellant had already served two years, he was ordered to be released if he was not required in any other case. However, he remained liable to pay the fine for the conviction under Section 324 IPC.

Case- Sonu Choudhary vs. State of NCT Delhi

2. Adult Sexual Predators Ought Not To Be Afforded Leeway By Micro Analysis of Child Victim’s Testimony: Sikkim High Court

The Sikkim High Court recently set aside the judgment of a Trial Court by which it acquitted a person charged with sections 9(m) and 9(n) of POCSO Act and Section 354 of IPC (now section 74 of IPC) on the ground that Trial Court was in error in acquitting the accused despite the unwavering evidence of the child victim on record and her evidence being wholly trustworthy.

The single judge bench of Justice Meenakshi Madan Rai observed.

“Adult sexual predators ought not to be dealt with leniency or extended misplaced sympathy they ought to face the penalty that their acts deserve and should not be afforded leeway by the learned Trial Court by micro analysis of time and place of incident.”

While observing that the evidence of the child does not point to penetrative sexual assault, the court invoked section 222(2) of CrPC [now section 245(2) of BNSS] and convicted the accused respondent of the offence under section 7 punishable under section 8 of the POCSO Act.

The Additional Public Prosecutor appearing for the State-Appellant contended that the Trial Court without basis or enumerating reasons for her opinion assumed that the child could have been tutored but failed to examine and consider that her statement under Section 164 CrPC and her deposition before the Court corroborated each other and had withstood the cross-examination.

It was further submitted that corroborated the victim's statement with regard to the occurrence of the incident.

On the other hand, the Senior Counsel appearing for the accused-respondent contended that consistent anomalies arose in the prosecution case. It was submitted that according to PW-1 the incident occurred after she returned from school and was playing with her younger brother in the “courtyard” of their house. However, contrary to the evidence of PW-1, the victim's mother (PW-3) stated that when she reached her 'home' she saw the accused person keeping her victim daughter on his lap and on seeing her, the accused-respondent left her child on the floor and went out of her house and on seeing her, the accused-respondent left her victim child on the floor and went out of her house.

Thus, it was argued that the place of incident is unidentified being mired in confusing evidence. It was also contended that in an effort to explain the delay in the lodging of the FIR, the prosecution has insinuated that the accused-respondent came to the victim's house with his family attempting to reconcile the matter but no evidence fortifies such an allegation.

The Court noted that the High Court is to be slow in interfering with appeals against acquittals, yet it cannot remain a mute spectator, when, on analyzing the evidence on record it arrives at a finding that there has been a travesty of justice.

It was observed by the Court that PW-1 who is the victim of the sexual assault by a predator aged fifty years has been consistent in her evidence pertaining to the sexual assault perpetrated on her.

“Relevantly, it must be mentioned that her statement under Section 164 of the Cr.P.C., Exbt-1, was recorded on 28th day of December, 2018 and her evidence before the Court was recorded on 10th day of December, 2019. Notwithstanding the passage of time of almost a year, she has been consistent and unwavering about the details of the sexual assault and no contradictions are found in her statements,” the Court said.

It was further observed by the Court that the inability of the victim to specify the date of incident cannot be a ground to raze the prosecution case in the facts and circumstances of the present matter.

“Minor contradictions which arise during the recording of evidence and translation from the Nepali vernacular to English in fact requires the Judicial Officer to be vigilant in the Court room when such evidence is rendered, translated and recorded, to prevent anomalies. Nonetheless, these anomalies do not go to the root of the case of sexual assault, as the place of occurrence described by the Prosecution witnesses are not so disparate as to lead to a total disbelief of the Prosecution case of sexual assault,” it noted.

The Court remarked that after examining the deposition of the victim in Court and her statement under Section 164 of CrPC, the statements corroborate each other, are cogent, consistent and unwavering and there is no reason to conclude that the offence was a figment of the victim's imagination or conjured up by her nor is there evidence of her having been tutored by any person.

Thus, the Court opined that Trial Court was in error in acquitting the respondent of the offences charged with despite the unwavering evidence of the child victim on record and her sole testimony suffices to convict the respondent, her evidence being wholly trustworthy.

“It may be reiterated here that a purposive interpretation is to be given to the POCSO Act and the specific mandate of Section 29 of the POCSO Act is to be extended due consideration. Matters concerning sexual offences against minors require to be dealt with sensitivity and the victim's case ought to be given due consideration in terms of Section 29 of the POCSO Act when the deposition is evidently trustworthy, moreso when the accused has failed to establish lack of culpable mind as required under Section 30 of the POCSO Act,” the Court noted.

Accordingly, the Court set aside the judgment and order of acquittal passed by the Trial Court under the aforesaid provisions of POCSO Act and IPC.

The Court further noted that though the evidence of the child does not point to penetrative sexual assault, however, the offence committed by the accused-respondent would be one under Section 7 the POCSO Act.

Therefore, the Court invoked Section 222(2) of CrPC and convicted the accused-respondent under Section 7 punishable under Section 8 of the POCSO Act.

Case- State of Sikkim vs. Lal Bahadur Rai

3. Trial Not Concluded Within 60 Days From Day Fixed For Recording Evidence: Rajasthan High Court Cites Section 480 BNSS to Grant Bail In Cheating Case

Rajasthan High Court has allowed the bail application of an accused Charged under sections 420 and 406 of IPC, (now section 318 and 316 of BNS) on grounds of section 480(6) of BNSS, since the trial did not conclude within sixty days from the date fixed for taking evidence in the case and the accused was in custody for more than two years.

Section 480(6) of BNSS provides that in a case triable by a Magistrate, if the trial of the accused of any non-bailable offence was not concluded within sixty days from the first date fixed for taking evidence and the accused was in custody during the entire period, he/she shall be released on bail.

The bench of Justice Ganesh Ram Meena was hearing a second bail application filed by the accused charged under Section 420 and 406, IPC, in view of Section 480(6) of BNSS.

It was the case of the counsel for the accused that the first bail application on the same grounds of Section 480(6), BNSS, was dismissed by the trial court on the apprehension that the accused may influence the prosecution witnesses. However, since 60 days had passed after fixing of the first date for recording evidence, and the trial was not concluded, it was argued that the accused be granted bail under Section 480(6), BNSS.

On the other hand, it was the case of the public prosecutor that the trial could not be concluded within a period of 60 days because certain applications were filed by the prosecution witnesses which came to be decided at a later stage.

The Court perused the facts of the case and highlighted that the first date for recording evidence was fixed on 14/06/2024 and the period of 60 days ended on 13/08/2024. Furthermore, the accused was in custody for more than two years now.

In this light, the Court held that as per the mandate of Section 480(6), BNSS, the accused could not be continued in custody for an indefinite period of time.

Accordingly, the petition was allowed releasing the accused on bail.

Case- Banwari Lal Kushwah vs. State of Rajasthan