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Synopsis

The Supreme Court has said a man cannot be charged with an offence of house trespass for entering a restaurant which is neither a place used for human dwelling nor for worship nor for the custody of the property.  

A bench of Justices Bela M Trivedi and Satish Chandra Sharma set free appellant Sonu Choudary after setting aside his conviction by the trial court and confirmed by the High Court for offence under Section 452 of the IPC.

The court, however, affirmed his conviction under Section 324 of the IPC for causing hurt intentionally with a dangerous weapon.

According to the prosecution, on October 06, 2014, the appellant-accused had gone to a restaurant namely, Baithak Restaurant, run by the injured Rajat Dhyani. He asked for a jug of water to consume alcohol. When Rajat refused to give water, the appellant – accused took out a blade and inflicted injuries on the thigh, shoulder and back of Rajat. When Rajat called his friend Imran Khan, he tried to intervene, however, the appellant caused injury on his stomach with the blade. 

As the police were called, the appellant was apprehended on the spot.

Before the apex court, he challenged the Delhi High Court's order of February 21, 2024 confirming the trial court's judgment of November 30, 2022 holding him guilty and sentencing him to four years in jail for the offence of house trespass and two years for voluntarily causing hurt.

The appellant contended that his conviction was based on the solitary evidence of Rajat as Imran Khan, though was allegedly injured, had not supported the case of the prosecution. His counsel claimed no case for house trespass was made out and the injuries allegedly caused by the appellant were also simple in nature. He further submitted that the appellant had already undergone two years of imprisonment.

The state counsel submitted the appellant had concurrently been convicted and there was no irregularity or infirmity in the High Court's decision.

After hearing the counsel and going through the facts of the matter, the bench said, "We are of the opinion that the prosecution had proved the guilt of the appellant so far as the offence under Section 324, i.e., “voluntarily causing hurt” to the appellant was concerned and was rightly convicted and sentenced for the offence under Section 324 IPC".

However, so far as the offence under Section 452 IPC was concerned, the bench said, that both the courts below had failed to consider the ingredients of the said provision.

Having regard to the said provisions contained in Sections 441, 442 read with 452, the bench said, it appears that in order to convict a person for the offence under Section 452, it has to be proved beyond reasonable doubt that the accused had committed a house trespass within the meaning of Section 442.

"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," the bench said.

In the facts of the present case, the bench said, admittedly, the incident had taken place in a restaurant run by the injured Rajat, which could not 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. In our opinion, both the courts having miserably failed to appreciate the said provisions in the light of the facts of the case, the conviction of the appellant for the offence under Section 452 IPC is liable to be set aside," the bench said.

The court thus acquitted the appellant of the offence under Section 452 of the IPC.

The bench ordered that since the appellant had already undergone two years of sentence, so far as the conviction under Section 324 was concerned, the appellant was set free, if not required in any other case. 

"However, it is clarified that the appellant shall be liable to pay the fine (of Rs one lakh) as directed by the trial court, if not paid so far, or in default thereof, shall undergo the sentence as directed by the trial court," the bench directed.

Case Title: Sonu Choudary Vs State of NCT Delhi