SONU CHOUDARYversusSTATE OF NCT DELHI

          [2024] 11 S.C.R. 786 : 2024 INSC 864

                      Sonu Choudary
                              v.
                     State of NCT Delhi
             (Criminal Appeal No. 3111 of 2024)
                      06 November 2024
 [Bela M. Trivedi and Satish Chandra Sharma, JJ.]


                    Issue for Consideration
Issue arose as to whether the conviction of the appellant u/ss.324
and 452 IPC is sustainable; and whether a restaurant can be said
to be a place used for dwelling or for worship or for the custody
of property for convicting a person u/s.452 IPC for committing
offence of house tresspass.

                           Headnotes†
Penal Code, 1860 – ss.324 and 452 – Voluntarily causing
hurt – House trespass after preparation for hurt, assault
or wrongful restraint – Prosecution case that the appellant
inflicted injuries with the blade on the thigh, shoulder and
back of the owner of the restaurant, when the owner refused
to give the appellant water to consume alcohol – Victim’s
friend tried to intervene, however, he was also inflicted
injury – Conviction and sentence u/ss. 324 and 452 by the
courts below – Correctness:
Held: Prosecution proved the guilt of the appellant so far as the
offence u/s.324, “voluntarily causing hurt” to the injured and was
rightly convicted and sentenced for the offence u/s.324 – As regards
s.452, the incident took 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 – Thus, the very
ingredients of the offence u/s.452, namely, the criminal trespass
as contemplated in s.441 and house trespass as contemplated in
s.442 having not been made out by the prosecution, the appellant
could not have been convicted for the offence u/s.452 – Thus,
conviction and sentence awarded for offence u/s.452 by the trial
court and confirmed by the High Court set aside – Appellant
acquitted for the offence u/s.452. [Paras 6, 7, 9-12]
[2024] 11 S.C.R.                                                           787

                     Sonu Choudary v. State of NCT Delhi


                                List of Acts
     Penal Code, 1860.

                              List of Keywords
     Place used for dwelling or for worship or for custody of property
     for convicting a person u/s.452 IPC; Offence of house tresspass;
     Voluntarily causing hurt; House trespass after preparation for hurt,
     assault or wrongful restraint; Infliction of injuries with blade.

                             Case Arising From
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
     3111 of 2024
     From the Judgment and Order dated 21.02.2024 of the High Court
     of Delhi at New Delhi in CRLA No. 243 of 2023

                          Appearances for Parties
     Suvendu Suvasis Dash, Ms. Swati Vaibhav, M/s. Vaibhav & Dash
     Law Associates, Advs. for the Appellant.
     Mrs. Archana Pathak Dave, A.S.G., Mukesh Kumar Maroria,
     Advs. for the Respondent.

                Judgment / Order of the Supreme Court

                                 Judgment

1.   The instant appeal arises out of the impugned order dated 21.02.2024
     passed by the High Court of Delhi at New Delhi in Criminal Appeal
     No.243 of 2023, whereby the High Court had dismissed the appeal
     preferred by the appellant and confirmed the judgment of conviction
     dated 30.11.2022 and order on sentence dated 04.02.2023 passed by
     the Addl. Sessions Judge-FTC-02 (South East), Saket Courts, Delhi
     (“Trial Court”). Vide the said judgment, the appellant was convicted
     for the offences under Sections 324 and 452 of the IPC, and was
     directed to undergo simple imprisonment for a period of two years
     and to pay fine of Rs.1,00,000/- for the offence under Section 324
     IPC and in default thereof, to undergo further simple imprisonment
     for a period of six months, and was further sentenced to undergo
     simple imprisonment for a period of four years and to pay fine of
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       Rs.5,000/- for the offence under Section 452 IPC, in default thereof,
       to undergo further simple imprisonment for a period of three months.
2.     The case of the prosecution in short was that on 06.10.2014, the
       appellant-accused had gone to the restaurant namely, Baithak
       Restaurant, run by the injured Rajat Dhyani (PW-1). He asked for
       a jug of water to consume alcohol. When the said Rajat refused to
       give water, the appellant – accused took out a blade and inflicted
       injuries on the thigh, shoulder and back of the said Rajat. When the
       said Rajat called his friend Imran Khan (PW-3), he tried to intervene,
       however, the appellant caused injury on stomach with the blade to
       Imran also. On receiving the information about the incident (DD
       No.3A), the Investigating Officer found the two injured persons, and
       the appellant was apprehended on the spot.
3.     It is sought to be submitted by the learned counsel, Mr. Suvendu
       Suvasis Dash for the appellant that the entire conviction of the
       appellant is based on the solitary evidence of PW1- Rajat Dhyani,
       as the PW3 – Imran Khan, though was allegedly injured, had not
       supported the case of the prosecution. According to him, 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 has already undergone two years of imprisonment.
4.     However, the learned senior counsel, Ms. Archana Pathak Dave
       appearing for the respondent – State has supported the impugned
       order passed by the High Court and submitted that the two Courts
       having concurrently held the appellant guilty for the offences under
       Sections 324 and 452 IPC, this Court may not interfere with the same,
       more particularly, when there is no major irregularity or infirmity in
       the impugned order passed by the High Court.
5.     At the outset, it may be stated that though the PW-1, i.e., injured Rajat
       had supported the case of the prosecution, the PW-3, Imran Khan,
       who was also allegedly injured by the appellant had not supported
       the case of the prosecution and was declared hostile. The PW-1
       had inter alia stated that the appellant- accused had come to his
       restaurant, and had asked for a jug of water for consuming alcohol.
       When he refused to give him the water, he started quarreling with
       him and ultimately inflicted injuries to him with a blade. He stated
       that the injuries were caused on his thigh, back and shoulder. The
       MLC No.454231 (Ex. PW6/B) also corroborated the version of PW-1.
[2024] 11 S.C.R.                                                         789

                     Sonu Choudary v. State of NCT Delhi


     However, as per the opinion of PW7 – Dr. Biswajit Singh, the said
     injuries were found to be simple in nature.
6.   Having regard to the afore discussed evidence, 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
     injured was concerned and was rightly convicted and sentenced for
     the offence under Section 324 IPC.
7.   However, so far as the offence under Section 452 is concerned, both
     the Courts below have failed to consider the ingredients of the said
     provision. Section 452 reads as under:-
          “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 to seven years, and shall also be liable to fine.”
8.   The definitions of criminal trespass and house trespass as contained
     in Sections 441 and 442 read as under:-
          “441. Criminal trespass.—Whoever enters into or upon
          property in the possession of another with intent to commit
          an offence or to intimidate, insult or annoy any person in
          possession of such property, or having lawfully entered
          into or upon such property, unlawfully remains there with
          intent thereby to intimidate, insult or annoy any such
          person, or with intent to commit an offence, is said to
          commit “criminal trespass”.
          442. House-trespass.—Whoever commits criminal trespass
          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, is
          said to commit “house-trespass”.”
9.   Having regard to the said provisions contained in Sections 441, 442
     read with 452, it appears that in order to convict a person for the
     offence under Section 452, it has to be proved beyond reasonable
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       doubt that the accused had committed a house trespass within
       the meaning of Section 442, on he having made preparation for
       causing hurt to any person, or putting him under fear etc. 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.
10. So far as the facts of the present case are concerned, admittedly,
    the incident had taken place in a restaurant run by the injured PW-1,
    Rajat, 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.
11. 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.
12. In that view of the matter, the conviction made and sentence awarded
    by the Trial Court and confirmed by the High Court is further confirmed
    so far as the offence under Section 324 IPC is concerned, however,
    the conviction made and sentence awarded for the offence under
    Section 452 IPC by the Trial Court and confirmed by the High Court
    is hereby set aside. The appellant is acquitted for the offence under
    Section 452 IPC.
13. Since the appellant has already undergone two years of sentence, so
    far as the conviction under Section 324 is concerned, the appellant
    is set free, if not required in any other case. However, it is clarified
    that the appellant shall be liable to pay the fine 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 Trial Court shall verify
    the status of sentence undergone by the appellant and payment
    of fine, if any, made by him, and if not paid, shall proceed against
[2024] 11 S.C.R.                                                 791

                     Sonu Choudary v. State of NCT Delhi



     the appellant – accused in accordance with law and also issue the
     non-bailable warrant as may be required, for undergoing remaining
     part of sentence, if any,.
14. The Appeal stands partly allowed accordingly.
15. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal partly allowed.



     †
         Headnotes prepared by: Nidhi Jain