No Offence Of Criminal Trespass Is Attracted When Accused Enters Property Which Is In His Joint Possession: Kerala High Court

The accused was convicted and sentenced by the trial court under Sections 201 (causing disappearance of evidence or giving false information to screen offender)), 449 (house trespass to commit offence punishable with death) and 302 (punishment for murder) of the IPC for the murder of his brother at their own house. It was alleged that murder was committed after committing house trespass into the house which was under the joint possession of the appellant, deceased and their father.

The Division Bench comprising Justice A.K.Jayasankaran Nambiar and Justice Kauser Edappagath, partly allowed the appeal and acquitted the accused under Section 449 IPC and confirmed his murder conviction.

“In other words, the property into which the offender entered must not be in his possession. So also, when the property is in the joint possession of the accused and the victim, the latter's entry thereon is lawful and cannot be termed as criminal trespass. There cannot be criminal trespass into a property in which the accused himself is in joint possession. Criminal trespass under Section 441 or house- trespass with the intention to commit an offence punishable with death under Section 449 can be said to be committed only when a person enters or upon any property/house which is not in his possession, either exclusive or joint, but in the possession of another.”

Background

The accused was living with his deceased brother and their parents in their house. An altercation took place between the brothers at around 4.30 PM. Thereafter, at about 5.30 PM, the accused stabbed his brother and committed his murder.

The trial court sentenced the accused to undergo rigorous imprisonment for life and a fine for murder, to rigorous imprisonment for ten years and fine for house trespass and rigorous imprisonment of two years and a fine for causing the disappearance of evidence. The sentences were to run concurrently.

Findings

Analysing the evidence, the Court stated that the injury was inflicted intentionally upon the deceased to cause his death. It stated that the prosecution has proved beyond reasonable doubt that that the accused committed homicide of the deceased brother.

The mother gave a statement that the accused after stabbing the deceased wiped the blood from the knife and sat on the head side of the deceased with a smiling face. The court stated that the evidence of the mother appears to be natural and credible since no mother would implicate her son in the murder of another son.

The court also relied upon the statement given by the deceased under Section 32 (1) and 6 of the Evidence Act that it was the accused who stabbed him. It stated that a dying declaration could be used for conviction even without any corroboration if it inspires the confidence of the Court.

The Court further rejected the argument that exception 4 of Section 300 (murder) of IPC would be attracted that the murder was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. It stated that the injury was fatal and was inflicted upon the chest which is a vital body part which was sufficient to cause death in the ordinary course of nature. Further, the Court stated that the type of weapon, party of body attacked, and amount of force deployed would show intention.

The Court said: “Nothing has been brought out in the evidence to suggest that the incident in question, which led to the death of Sunil Kumar, took place due to a sudden fight that ensued between the appellant and the deceased without any premeditation and the act of the appellant in stabbing the deceased was an outcome of the heat of passion or upon sudden quarrel so as to attract Exception 4 to Section 300 of IPC as alternatively pleaded by the appellant. Therefore, the act of the appellant falls squarely under Section 300 thirdly of the IPC, punishable under Section 302 of the IPC.”

On the offence of criminal trespass, the Court stated that Section 441 of IPC defines criminal trespass. It stated that 'Entry into or upon property in the possession of another' is an essential ingredient for attracting the offence of criminal trespass. It stated that for committing an offence of criminal trespass, the property entered into by the offender should be in the possession of another person.

In the facts of the case, the Court stated that the house belonged to their father, the accused and the deceased. The Court found that the accused and the deceased were living jointly in the house where the offence was committed. It thus said: “That being so, it cannot be said that the appellant's entry into the said house was unlawful and amounts to criminal trespass.”

The Court held that the offence of criminal trespass was not made out and therefore conviction under Section 449 of the IPC was not sustainable.

Accordingly, the Court partly allowed the appeal and acquitted the appellant under Section 449 of IPC and confirmed the conviction for murder under Section 302 of IPC and 201 IPC.

Counsel for Appellant: Advocate Vinu Raj R

Counsel for Respondents: Public Prosecutor Alex M Thombra

Citation: 2024 LiveLaw (Ker) 187

Case title: ANILKUMAR v STATE OF KERALA

Case number: CRL.A NO. 1129 OF 2018

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