1 Tarachand Mourya vs. State of Rajasthan S.B.Cri. Revision Petition No.710/2008 Date of Order : 16.10.2008 HON'BLE MR. MANAK MOHTA, J. Mr.Suresh Kumbhat for the petitioner. Mr.Vishnu Kachhawaha , Public Prosecutor. Heard learned counsel for the accused petitioner as well as the learned Public Prosecutor. This revision petition has been filed against the oder of framing of charge against the sole accused under section 459, 323 and 325 IPC. During the course of argument, learned counsel for the petitioner submitted that while framing the charge, learned trial court has not properly appreciated and considered the material available on record and wrongly framed charge under section 459 and 325 IPC. During the course of arguments, learned counsel drew my attention towards the statement of witness as well as the evidence collected by the police during investigation. Learned counsel for the petitioner further submitted that it is no where the allegation of the witnesses that the accused petitioner concealed himself while trespassing. Further, there is no material on record that he entered in the house by breaking or making new way for entry. Further it is stated that at the most, the allegation 2 regarding house trespass with causing hurt, that does not travel beyond section 452 IPC. A request was made to accept the revision and order of framing charge under the aforesaid section, be quashed and set aside. The learned Public Prosecutor opposed the application and submitted that at the stage of framing charge, it was not expected from the learned trial court to minutely scrutinise the evidence and other material available on record and prayed that the revision petition may be dismissed. I have considered the rival submissions and perused the material available on record. I have gone through the statements of the witnesses and specially the site plan prepared during investigation and other material collected by the police. From the perusal of the material available on record and from the perusal of the statements of the witnesses, it is no where stated that while house trespassing accused petitioner concealed his presence. It reveals that allegations against the accused are that on 03.03.08 he came to the house of complainant and gave beating on the door of the house. At that time, the complainant opened the door and during that time, the occurrence took place . At the same time, there is no material that the accused petitioner broke the wall or made any way for entrance. For the charge under section 459 IPC, ingredients mentioned under section 443 and 445 IPC are required to be existed. Without observing 3 anything on the merit of the case, these ingredients are lacking, therefore, charge under section 459 IPC is not maintainable. On the basis of aforesaid discussion, the impugned order is quashed and set aside and the case is remanded back for afresh hearing on the charge. The learned trial court, without being influenced by any observation made in this order, will hear both the parties and frame the charge in accordance with law, on the material available on record. The revision petition is partly allowed accordingly. (MANAK MOHTA), J. l.george