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Fakir Chandra De and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal556(1),76Ind.Cas.392
AppellantFakir Chandra De and ors.
RespondentEmperor
Excerpt:
penal code (act xlv of 1860), sections 448, 452 - house trespass with intention to assault--offence. - 1. the three petitioners have been convicted of an off nee punishable under section 452, indian penal code, and sentenced to one month's rigorous imprisonment and fine of rs. 50 ach. the first petitioner, fakir, has been convicted of an offence punishable under section 379, indian penal code, and sentenced to pay a further fine of rs. 1002. the rule was issued calling on the district magistrate to show cause why the conviction under section 452 should not be altered to one under section 448, why the conviction of fakir under section 379 should be not be set aside, and why the sentence of imprisonment passed on the petitioners should not be modified or altered neither the trying magistrate nor the learned sessions judge who heard the appeal have given their reasons for holding that section.....
Judgment:

1. The three petitioners have been convicted of an off nee punishable under Section 452, Indian Penal Code, and sentenced to one month's rigorous imprisonment and fine of Rs. 50 ach. The first petitioner, Fakir, has been convicted of an offence punishable under Section 379, Indian Penal Code, and sentenced to pay a further fine of Rs. 100

2. The Rule was issued calling on the District Magistrate to show cause why the conviction under Section 452 should not be altered to one under Section 448, why the conviction of Fakir under Section 379 should be not be set aside, and why the sentence of imprisonment passed on the petitioners should not be modified or altered Neither the Trying Magistrate nor the learned Sessions Judge who heard the appeal have given their reasons for holding that Section 452, Indian Penal Code, is applicable to the facts of the present case. On the findings there can be no doubt that house treaspass was committed, since it is found that the three accused entered the verandah of the complainant's house and draged him out. But no further fact is found from which it can be held that the accused committed horse trespass having made preparation for causing hurt to any person or for assaulting any person. From the charge framed it would appear that the Trying Magistrate misunderstood the provisions of Section 452 since it charges the accused with having trespassed into the shop of the complainant for the purpose of assaulting the complainant. This being established would not be sufficient to support a conviction under Section 452, though it might be for a conviction of the three petitioners under Section 448, Indian Penal Code.

3. As regards the conviction of the petitioner Fakir under Section 379, Indian Penal Code, it is found that he took away the complainant's bicycle from his shop. There are also findings in the judgment of the Trying Court that this was done dishonestly. The defence was that the bicycle was not taken from the shop. We see no reason to hold that the taking of it was not dishonest. We, therefore, see no necessity for altering the conviction under this section.

4. As regards the sentence the three accused are respectable young men of whom the oldest is aged 19, and the youngest 15, years. They appear to have acted under the influence of excitement The complainant had run down an old woman with his bicycle and apparently the accused took it upon themselves to punish the complainant and to take steps to compel him to pay compensation to the woman. Under these circumstances, we do not think that the petitioners should have been sentenced to imprisonment and also as regards the sentence passed on Fakir the finding of both Courts is that the offence was purely technical.

5. We, therefore, make this Rule absolute to this extent. The conviction of the petitioners under Section 452 are altered to convictions under Section 448, Indian Penal Code, and the sentence of each of the petitioners under this section will be a fine of Rs. 50 each with one fortnight's rigorous imprisonment in default of payment. The sentence on the petitioner Fakir under Section 379, Indian Penal Code, is reduced to a fine of Rs. 50 with one fortnight's rigorous imprisonment in default of payment. The order as to compensation to complainant will remain unchanged


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