Introduction:
In Binu Thankappan and Others v. State of Kerala, decided on 18 December 2025 in Criminal Appeal No. 596 of 2019 and reported as 2025 LiveLaw (Ker) 855, the Kerala High Court was called upon to examine a complex set of questions arising from a violent incident involving alleged unlawful assembly, trespass into a police station, damage to public property, and assault on police personnel. The appeal was preferred by accused Nos. 1 to 3, who had been convicted by the trial court for multiple offences under the Indian Penal Code and the Prevention of Damage to Public Property Act, 1984, and sentenced to five years’ imprisonment. A Single Bench of Justice Bechu Kurian Thomas undertook a detailed analysis of statutory definitions under the IPC, the Code of Criminal Procedure, and the Kerala Police Act, 2011, particularly focusing on whether a police station could be treated as a “house” for the purpose of Section 442 IPC relating to house trespass. The Court also examined the evidentiary sufficiency regarding unlawful assembly, common object, individual culpability, and the applicability of offences such as assault on public servants, outraging modesty, and use of obscene words. The judgment is significant for its nuanced clarification of criminal trespass law, its reaffirmation of settled principles governing unlawful assembly, and its careful differentiation between collective liability and individual criminal responsibility.
Arguments on Behalf of the Appellants:
The appellants contended that the conviction recorded by the trial court was legally unsustainable and based on misappreciation of evidence. A primary argument raised was that the offence of house trespass under Section 452 IPC could not be attracted by trespassing into a police station, as a police station does not fall within the definition of a “house” under Section 442 IPC. It was argued that Section 442 contemplates buildings used as human dwellings or for the custody of property, and a police station, being a public office accessible to citizens, cannot be equated with a private or protected building so as to attract house trespass. The appellants further submitted that the essential ingredients of unlawful assembly under Sections 143, 147, 148, and 149 IPC were not established, as the prosecution failed to prove the existence of a common object among the alleged members of the assembly. It was emphasized that except for the appellants, the other accused were acquitted, and therefore, the minimum requirement of five persons for constituting an unlawful assembly was not satisfied. The appellants argued that once the number of convicted persons fell below five, the conviction with the aid of Section 149 IPC could not be sustained.
Another major plank of the appellants’ submissions was that there was no consistent or reliable evidence to prove their individual involvement in the alleged offences. It was contended that the prosecution witnesses gave vague and contradictory statements and failed to attribute specific overt acts to each of the accused. The appellants also argued that the prosecution had failed to explain the injuries found on the accused, which according to settled law, created serious doubt regarding the prosecution version and suggested suppression of the true genesis of the incident. With respect to offences under Sections 332, 354, and 294(b) IPC, the appellants submitted that the prosecution failed to establish the statutory ingredients, particularly that the alleged assault occurred while police officers were discharging official duties, that criminal force was used with intent to outrage modesty, or that obscene words were uttered in a manner contemplated by law. On these grounds, the appellants sought complete acquittal and setting aside of the conviction and sentence.
Arguments on Behalf of the Respondent State:
The State opposed the appeal and supported the findings of the trial court, arguing that the evidence on record clearly established that the appellants were part of an unlawful assembly that trespassed into a police station and committed acts of violence and vandalism. The Public Prosecutor contended that a police station is undoubtedly a building used for the custody of property, including official records, arms, ammunition, and seized articles, and therefore squarely falls within the definition of a “house” under Section 442 IPC. Reliance was placed on statutory provisions under the Code of Criminal Procedure and the Kerala Police Act, 2011, which mandate the establishment of police stations with facilities for safe custody of property and accused persons. The State further argued that the law does not require conviction of five persons for sustaining a charge of unlawful assembly, so long as the Court is satisfied that an unlawful assembly of five or more persons did exist, even if some participants could not be identified or convicted.
The respondent also submitted that the evidence of prosecution witnesses, particularly police personnel present at the station, clearly established that the appellants had entered the police station forcibly, damaged public property, and assaulted officers. With respect to injuries on the accused, the State argued that the injuries were minor and adequately explained by the prosecution through medical evidence and the testimony of the investigating officer, who stated that such injuries could have occurred while damaging the collapsible grill of the police station. The State contended that the trial court had correctly appreciated the evidence and that the conviction, particularly of the first accused, deserved to be upheld, though the Court could consider modifying the sentence if it deemed fit.
Court’s Judgment:
Justice Bechu Kurian Thomas delivered a detailed and reasoned judgment, partly allowing the appeal while affirming key legal principles. One of the central issues considered by the Court was whether a police station could be treated as a “house” under Section 442 IPC, thereby attracting the offence of house trespass under Section 452 IPC. The Court undertook a statutory analysis, referring to Section 2(s) of the Code of Criminal Procedure, which defines a police station, and Sections 5 and 6 of the Kerala Police Act, 2011, which provide for the establishment of police stations and mandate facilities for safe custody of articles, official records, arms, ammunition, accused persons, and detainees. The Court observed that Section 6(2) of the Kerala Police Act specifically requires sufficient storage space for the safekeeping of articles in custody and official arms and ammunition. On a combined reading of these provisions, the Court held that police stations in Kerala are buildings used for the custody of property and therefore satisfy the definition of “house” under Section 442 IPC. Consequently, the Court answered in the affirmative the question whether house trespass under Section 452 IPC can be committed by trespassing into a police station.
On the issue of unlawful assembly and the applicability of Section 149 IPC, the Court reiterated the settled legal position that while an unlawful assembly must consist of at least five persons, it is not mandatory that five persons must be convicted for sustaining such a charge. Relying on precedents of the Supreme Court, the Court observed that if evidence establishes the existence of an unlawful assembly of five or more persons, conviction can be recorded against those who are proved to be part of it, even if others are acquitted or not identified. However, applying this principle to the facts of the case, the Court found that the prosecution failed to adduce cogent evidence regarding the common object of the assembly. There was no clear proof that the group shared a common object to commit criminal trespass or the other alleged offences. As a result, the Court concluded that the offences under Sections 143, 147, 148, and 149 IPC were not attracted in the present case.
Examining the evidence with respect to individual culpability, the Court noted that there was no consistent or reliable evidence proving the involvement of anyone except the first accused. The benefit of doubt was therefore extended to the second and third accused, who were acquitted of all charges. Regarding Section 332 IPC, the Court held that the prosecution failed to establish that the alleged assault was committed while the police officers were discharging their official duties, an essential ingredient of the offence. Hence, Section 332 IPC was found not attracted. However, based on the specific testimony of prosecution witnesses, the Court held that the first accused did commit simple hurt, thereby attracting Section 323 IPC.
With respect to the offence under the Prevention of Damage to Public Property Act, the Court found that the prosecution successfully proved the charge through oral and documentary evidence, including proof of damage caused to the police station property. On the charge under Section 294(b) IPC, the Court observed that the prosecution failed to establish that the words allegedly used by the first accused were obscene in the legal sense required to constitute the offence, leading to his acquittal on that count. Similarly, regarding Section 354 IPC, the Court noted that the evidence merely showed that the first accused caught the shoulder of a woman police officer and pushed her aside while entering the station, and there was no material to conclude that criminal force was used with the intention of outraging her modesty. Consequently, he was acquitted of that offence as well.
Addressing the argument relating to unexplained injuries on the accused, the Court accepted the prosecution explanation that the injuries were minor, that the accused left the hospital immediately, and that such injuries could have been caused during the act of damaging the police station grill. The Court found this explanation satisfactory and not fatal to the prosecution case. Ultimately, the appeal was partly allowed: accused Nos. 2 and 3 were acquitted of all charges, while the conviction of the first accused under Sections 452 and 323 IPC and Section 3(1) of the PDPP Act was confirmed. Considering the nature of the offences and circumstances, the Court reduced his sentence to rigorous imprisonment for three years with a fine of Rs. 10,000, acquitting him of the remaining charges.