[S.447 IPC] Intention To Commit Any Offence/ Intimidate, Insult Or Annoy Possessor Necessary To Establish Criminal Trespass: Kerala High Court

Justice C.S. Dias thus acquitted two persons who were convicted for the commission of the offence of criminal trespass, citing lack of above ingredients.

“...the accused had no intention to commit any offence or intimidate, insult or annoy PW1 when they entered his house. The prosecution has miserably failed to establish beyond doubt that the accused had entered the property with an intention to commit the offence. Therefore, the revision petitioners/accused are entitled to the benefit of doubt.”

The allegation was that the accused persons trespassed into the property and caused hurt with knowledge and intention to causing death. The Police submitted final report alleging commission of offences under Section 447 (punishment for criminal trespass), 308 (attempt to culpable homicide), Section 324 (voluntarily causing hurt by dangerous weapons or means), Section 323 r/w (punishment for voluntarily causing hurt) Section 34 (common intention) of IPC.

The Trial Court found them not guilty of the offences under Sections 323, 324 and 308 of the IPC and convicted only for the commission of the offence of criminal trespass and sentenced to three months imprisonment and fine. The appellate Court confirmed the conviction and upheld the order of the Trial Court. Aggrieved by this, the petitioners have approached the High Court by filing revision petitions.

The Court noted that the prosecution case was that the accused persons trespassed and inflicted injuries. It noted that the Trial Court on appreciating the testimonies of the prosecution witnesses stated that no incident as alleged by the prosecution had taken place. The Court noted that only a scuffle occurred between the parties based on which the Trial Court convicted the accused persons under Section 447 IPC for the commission of criminal trespass.

The Court relied upon the Apex Court decisions in Mathri and others v. State of Punjab (1964) and Rajinder and others v. State of Haryana (1995) and stated that the offence of criminal trespass will be attracted when one person unlawfully enters into the property possessed by another person with an intention to commit an offence or to cause intimidation, insult or annoyance.

The Court noted that the Trial Court on appreciation of the testimony of the prosecution witnesses came to the conclusion that it was only a scuffle between the parties and no other offences were attracted, except criminal trespass. It noted that the prosecution was unable to prove the offence beyond reasonable doubt against the accused persons.

"I do not find any material on record, to establish that the accused had entered into the property of PW1 with an intention to commit, intimidate, insult or annoy PW1. Moreover, I find more probability in the defence version that the accused had gone to see their friend Yesudasan, the other son of PWs1 and 3, which was not acceptable to the other family members."

On the above observations, the Court allowed the revision petitions and set aside the orders of conviction.

Counsel for the petitioners: Advocates Sunil Kumar, A.Salini Lal, John Britto and C.A.Rajeev

Counsel for the respondents: Public Prosecutor Nima Jacb and Senior Public Prosecutor Seetha S

Citation: 2023 LiveLaw (Ker) 637

Case title: Sunil Kumar @ Rakkan v State of Kerala and connected matter

Case number: CRL.REV.PET NO. 600 OF 2011 and CRL.REV.PET NO. 669 OF 2011

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