IN ThE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 5 th DAY OF JANUARY 2010 BEFORE THE HON’BLE MR.JUSTICE JAWAD RAHIM CrLA.NO.1373/2005 BETWEEN: MAHEBOOB AU, 5/0 JAJISAB PARWAN, AGED ABOUT 30 YEARS, 0CC: COOUE RIO KODLA, SEDAM TALUK, GULBARGA DISTRICT APPELLANT (BY SRI BABURAO MANGANE, ADV.,) AND: THE STATE THROUGH SEDAM POLICE STATION GULBARGA DISTRICT RESPONDENT THIS CRLA FILED UNDER SECTION 374 CR.P.C AGAINST THE JUDGMENT DATED 02.07.2005 PASSED BY THE I ADDL. S.J., GULBARGA. IN S.C.NO.128/04- CONVICTING ThE APPELLANT-ACCUSED FOR ThE OFFENCES P/U/Ss 458 & 398 OF IPC AND SENTENCING HIM TO UNDERGO R.I FOR 2 YEARS AND TO PAY FINE OF RS.500/- I.D TO UNDERGO S.I FOR 1 MONTH FOR ThE OFFENCE P/U/S 458 OF IPC AND FURTHER SENTENCING HIM TO UNDERSORI FOR I YFARS AND TO PAY FINE OF RS500/ LD TO UNDERGO SJ FOR I MONTH FOR THE OFFENCE P/U/S 398 OF IPC, THE SENTENCES SHAL t RUN CONCURRE NTL V This (rLA coming on for final hearing this day 1 the Court delivered the following JUDGMENT This appeal is by the second accused against conviction for the offences under Sections 458 and 398 of IPC dated 02 07 05 in S C NoA28/2004 on the file of essions Judge Gulbarga 2 Heard Sri Baburao Manqane learned Counsel for the appellant and Sri S K Babashetty learned HCGP for th State nef t a mtri t ht e a alleqo a a a 3 noticed by P.W.5 who reported presence of the appellant and his accomplice to P.W.4 Shivareddy the owner of the house who was sleeping In the company of his mother and son. Thereafter Shivareddy P.W.4 Irappa P.W.5 with the help of neighbours caught them and tied them to a pole. 5. Report in this regard was lodged by P.W.lSangayya the Dalapathi of Kodla village at the police station on the following day at about 9 a.m. It was registered as a crime In Crime No.238/2003 and the police officers visited the spot. They found the appellant and his accomplice tied to the pole. They were taken into custody and thereafter conducted further investigation which Includes preparation of spot mahazar, seIzure of torch and knife and recording of the statement of P.W.4, P.W.5 and other witnesses. 6. The investigating officer filed final report raising charge for offences under Secs.458 and 398 of IPC and thus arraigned them for the said offences. LI 4 7. On committal of the case by the jurisdictional Magistrate It was re-registered as S.C. No.128/04 on the file of Sessions Judge, Gulbarga and the accused were put to trial. During trial the prosecution examined in all seven witnesses and placed reliance on four documents and certain material objects. The accused put up defence of denial slmplicitor and declined to lead evidence in defence when called upon to do so. 8. AnalyzIng the evidence on record, the trial Court found It suffident to support the charge under Sec.458 and 398 of IPC and convicted them and sentenced• them to imprisonment of various period. Aggrieved by it the second accused is in this appeal. 9. Learned counsel Sri Baburao Mangane has assailed the conviction on several grounds amongst which following are: 1) the prosecution has failed to establish the appellant was In the company of accused No.1 Karlmsab on the night of 27/12/2003. 5 2) The prosecution has failed to establish the appellant had trespassed into the premises of P.W.4 Shivareddy armed with any object. 3) The prosecution Itself admits that the appellant was in possession of only Torch which Is not a dangerous weapon much less a weapon to raise a charge against him for the offence under Sec.398 of IPC. 4) The testimony of P.W.4 Shivareddy and P.W.5 Irappa is totally inconsistent with regard to the presence of the appellant or the first accused at the relevant date and time in the house of Shivareddy. 5. The learned Sessions Judge has seriously erred in raising certain presumptions without there being supportive evidence to find them guilty. 6 6. The Impugned judgment cannot be sustained as all Ingredients which constitute offence punishable under Secs.458 and 398 of IPC is lacking. 10. Per contra, Sri S.K. Babashetty, learned High Court Government Pleader supporting the Impugned Judgment pointed out to the following: (1) the appellant along with accused No.1 Karimsab were apprehended by P.W.4 Shlvareddy, P.W.5 Irappa along with the weapons and this very fact spells their presence. 2) The fact that neighbours had caught hold of the appellant and tied him to the pole till police arrived, by itself proves that the appellant had gone to entered the premises of Shivareddy to commit trespass. 3) since the appellant had committed trespass along with the accomplice in the middle of the night the offence falls under Sec.458 of IPC. %21 7 4) The torch which the appellant was holding was capable of being used as weapon and therefore the provisions of Sec.398 is attracted. 11. Keeping in mind what is urged by both sides I have examined the records in supplementary thereto. 12. SectIon 458 reads: “Sec.458: Lurldng house-trespass or house-breaking by night after preparatIon for hurt, assault, or wrongful restraint. - Whoever commits lurking, house-trespass by night, or house breaking by night, having made preparation for casuing 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 fourteen years, and shall also be liable to fine.” 8 Sec398. Attempt to commit robbery or decoity when armed with deadly iveapon If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon. the imprisonment with which such offender shall be punished not be less than seven years” 13 Keeping in mind the definition of the offence under these two provisions, evidence is reappraised, The evidence on which prosecution has placed evidence is of P W I Shivareddy and P W 4 Irappa therefore their adence ails for cruttny P W 5 Irappa has in his vidence ineqiiivoral trmc t1 that of h va eddy as oem paired ann the door re a o ed Ic a s1ee ing one of he no Nh I 0 1 a en a en eo a o ( 9 holding torch and accused No.1 was holding knife. On seeing them he screamed attracting attention of other members in the house. Hearing his screaming his employer Shivareddy and his son as also Vljayakumar and Iealreddy came to the spot. All of them caught hold of those intruders two persons and tied them to the pole and reported the matter to the Dalpathi (P.W.1) who has lodged report and on the next day police came and arrested them. 14. Whereas P.W.4 Shivareddy who is star witness of the prosecution had a different version. AccordIng to him while he was sleeping in his room which was under repair his servant P.W.5 Iranna woke him up and told him that some thieves have entered house, then he and P.W.5 saw two persons in a room. They identified one of them as Kasimsab who was holding knife, while petitioner is said to be in possession of torch. 15. The entire version is unbelievable. While P.W.5 says he accused and screamed, in response to It, Si lO Shivareddy went to the place where he was sleeping and woke him up, PW1 gives different version, thereafter both of them went and found the accused. If we believe version of P.W.5 that he screamed after seeing the intruders, it Is difficult to believe that after such screamIng of P.W.5 the accused along with appellant would stand at the same place till they were caught. If he accept the version of Shivareddy It shows Shivareddy’s servant was the only person, who saw accused. 16. Sangayya is the Dalapathi of Kodla village. P.W.5 names hIm who came to the spot. Viewed from other angle, if accused No.1 and accused No.2 had entered the house with an Intention to commit robbery, and if P.Ws. 4 and 5 had woken up, they would not have continued to remain at the place to be caught as alleged. The evidence of the prosecution is that after notldng accused Nos. 1 and 2, P.W.5 woke up and screamed thereafter P.W.4 Shivareddy and his son got up and came to the spot and neighbours Vljayakumar and Iealreddy cought hold of the II accused and they were arrested by police, the second aspect to be noticed is no report has been lodged in the police station of the occurrence at about 11 or 12 the midnight till next day morning at 9 am. Instead of reporting the matter to the police, P.W.5 states that Dalapathi P.W.1 Sangayya came to the spot and he lodged a report in response to which, police visited the spot, till then accused were kept tied to the pole. The whole version given by these two witnesses renders the testimony un believable. Secondly, it is seen that both of them claim that intruders trespassed into the house, whereas In the cross examination P.W.4 Shlvareddy and P.W.5 Irappa admitted that accused Nos.1 and 2 owned several Immovable propertIes in the village and they are residing in the same village. It Is also stated that the appellant herein who owned several agricultural lands had converted It Into non-agricultural lands and had formed sites and sold the same to many purchasers. It Is further admitted by these witnesses that accused and Shivareddy and other witnesses beionged to different rivai political parties. It is “-“S... 12 also elicited in the cross-examination, the day before alleged incident, he was in the political party. As a result of rivalry between the political party for which accused Nos.1 and 2 were active participants, there was a fight. 17. Thus, it is noticed from the evidence on record that all was not well between the appellant and PW4- Shivareddy and PW5-Irappa. Because of proof of enmity between them, the possibility of false Implication cannot be over-ruled. It must further be noticed the report is not lodged either by PW4-Shlvareddy or PW5-Irappa. It is filed by the Dalapathi of the village who has reported on the Incident only on the basis of what was told to him by PW4-Shlvareddy. It is further noticed from the allegation in the complaint and the evidence of PW4 and PW5 that appellant was holding only a torch and was not In possession of any object which could be termed as a dangerous weapon. Unless it is shown that the offender was In possession of a weapon, no charge under Section 398, I.P.C. could be raised or even if raised, it is A’. L fl’ ci • 13 untenable. The learned trial Judge has Ignored the requirement of Section 398, I.P.C. while framing the charge. He has failed to notice that a torch cannot be described as a dangerous weapon which is referred to In Section 398. As regards the charge for the offence under Section 458, I.P.C., the allegation in the report and the evidence of PW4-Shlvareddy and PW5-Irappa do not bring out even a prima facie case of lurking trespass. There is also no assertive from any of the prosecution witnesses that the appellant and his accomplice had committed lurking trespass as defined In Section 458, I.P.C. and had Indulged in any act coming within the mischief of the said provision. For the reasons discussed above, I am satisfied the finding of guilt recorded against the appellant and his co accused by the trial court is unsustainable. In the result, the appeal is allowed. Conviction recorded against the complainant for the offence 14 punishab!e under Sections 458 and 398, LPC. is set aside. He is acquitted of all the charges levelled against. Bail bonds executed by the appellant and surety are cancelled. If the appellant has deposited the fine amount, the same shall be refunded to him, Lnvg h *