II!I/Ill/Illglllyl/IHIIIIIHII I 057439 Ik\\ CFO 9 , e w K \ N THE HIGH cGURT OF WHYA Hwgsa AT JABALBJH 1 . rin‘FaLm Ams l. Satyandra~Kumaxfsonio al_Mahendrakumar Pulsaty ge 24 year§, residen / ad t f'Thakurtala,Gandai istrict &ajnandgaon o, D ,/ h DhanuK soh oi sa hobi, agéd‘3¢ y ar / andai,"distric G£ g / Z aan, mag, ”f"" N 1 V \ w W H j CR. AmaAL m l/6L0E '89. f L g, h D s, ~ XI—HC—78 WWW WWW Vmwm éawm 22.2.2007 Shri F.S.Khare, counsel “'or the appellants. Shri Arun Sao, Govt. Adyocate, for the State. I Arguments heard. Judgment passed as fellows: Sunil Kumar Sinha, J, (1) This appeal is directed against the judgment of conviction and order of sentence dated 6'" o December, 1989 passed by the Addl. Sessions Judge, Khairagarh, Distt. Rajnandgaon, in Sessions Trial No.24l1989 whereby the appell nts have been convicted u/s 457. 394 & 450 IPC and sentenced to und rgo rigorous imprisonment for 3 years, 5 years and 5 years respectively. The sentences have been directed to run concurrently. (2) The facts of the case ar that on 08.91988 P.W.1 Dulichand and his wife Kamaia (P.W.2) alo th theirvdaughter, namely Ku.Sushma, n i were sleeping in their house. lichand was a shop keeper, who was u having one small shop in a po ’on of the said house. ln the mid night, they heard some noise, on whi h they woke up. There was no light in the village, therefore, P.W.1 s itched on his Torch and saw that two / XI—HC—78 WW(W) WWW WWW 'matwm * 1’ persons were trying to take away the cash box of his shop. One of the said persons had covered his Face with some cloth (Lungi). When they saw that the complainant (P.W.1) has woken up, the person who had covered his face. assauited him with the help of iron chain (Sakai which is used in the village for closing the doors). P.W.1_ received injuries on head, left arm & face and blood started oozing from his nostrils. During scuffle, P.W,1 Dulichand removed the veil of the assailantvand he could identify that the assailant was this, the other assailant also tried to- assault the complainant, on which hue and cry and the intruders ran away I from the place of occurrence leaving the cash box there in the house of arpit, the complainant had tried to defend , due to which, the glass portion of the articles contained in the cash box also fell Torch was broken and various down from the hands of accused and those things were scattered on the Pila Ram, Aktu Ram, Sada Ram, Vipat and Nanku etc., reached to he house of complainant Dulichand, to whom, he narrated the story b telling the names of both the assailants 2. The report of the incident was taken on Dehati Nalishi Ex.P.1 on 9.1988, which was recorded by P.W.7 WW§WW éswm EW,W,W W W .Qi; gosNoQ; A. X go’bj. ggi 200 accused Satyanedra Kumar. seeing all the complainant started raising complainant. At the time of M himself with the help of Torch floor. On hearing hue and cry, i,e., accused appellants no.1 Devkinandan Sharma. This pehafi Nalishi Ex.P.1 élso contains the names of assailants and it lso contains the description of articies (properties) which were involv d in commission of the aforesaid crime. On the basis of this report, th investigating Officer prepared site plan under EXP-9. The injured co plainant Dulichand was sent for medical examinatien under Ex.P-5. H was examined by Dr. Sudhakar Damle (P.W.6) who gave his repo under EXP-6. Since the victim was complaining about injuries in n strils, he‘ was sent for further examination to ENT specialist under Ex.P. and was examined by Dr.S.K. Agrawal (P.W.5) who gave his report da ed 16.9.1988 (Ex.P,4). (3), ’A perusal of M.L.C. report, Ex.P,6, would show that the complainant has received abr ion in size of 5cm x 1/4cm on the upper portion of left arm. One bruise was present in size of 4cm x 2cm on the left shoulder. It was reddish in colour. An abrasion was found on the left j side of the head which was in size of 1/2cm x 1/2cm and he was ‘ complaining pain in the nose. Dr.Sudhakar Damle (P.W.6) opined that all the iniuries were simple in nature and except injury No.4, all the injuries were caused by hard and blunt object. He has advised for further examination of injury no.4 by an ENT Specialist. it is for this reason, the victim was again referred to ENT Specialist on 16.9.198é and a report mg '1 Jl?u /a A XI—HC-78 Hw,m, Wm 9?}...Aooooio‘o. . WW(W) mmw ' mmer‘wm mmm mmwm “$' agmm <32 XI—HC—78 saw, WWI—s: W Wmkgkoa..~?o:o‘}.az 3% WW(W) WWW WW§WW WWW mmxwm / Ll, %53Ti?dwaq1%31 was obtained under Ex.P.4. Tl'e property in question was also seized by ' the investigating Officer under Ex.P.Z. These are the various articles which were seiZed from the place of occurrence itself i.e., Cash Box made of Aluminum , currency notes, broken piece of wooden chair, one used Ever'eady Torch, one Lungi, One small Chitkani (used for bolting the doors), an iron chain and one small Axe. After completion of \w investigation, charge sheet was filed in the Court of J.M.F.C Khairagarh, who in tUrn committed the case to the Court of Sessions, Rajnandgaon from ;where the learned Add. Sessions Judge, received the file on transfer and conducted the trial (4)' (The prosecution in order to establish the guilt of the appellants, examined as many as 8 witnesses. Thereaiter, the accused persons were examined u/s 313 Cr.F.C., in which they denied the material appearing against them in the prosecution evidence and proposed for examination of a defence witness, in consequence of which, defence witness Jairam Singh (D.W.1) was examined. (5) After completion of the trial the learned Sessions Judge, convicted the accused appellants u/ss 457, 394 & 450 of IPC and sentenced them to undergo rigorous imprisonment as aforementioned. XI-HC-78 EW,WW,1%IW mm mAw’l.g}? a? 200 WWW WWW A WW§WWA maw1%am ‘5 ’ éawm (6) Learned counsel for the appellants argues that the version of P.W.1 & P.W.2 regarding idemimcation of the appenant$ are not reliabie a3 they have given a totaHy upon their testimonies is not s stainable. He also argues that when the accused abpellants were convi ted u/s 457 IPC by holding them guilty of committing Iurking house tresp ss or house breaking by night, in order to commit the offence punishable with imprisonment, they could not have been further convicted u/s 450 IPC because none of the ingredients of the offence u/s 450 are made in this case. (7) On the other hand, learn d State Counsel supports the judgment ot conviction and order of sente ce passed by the trial Court. (8) l have heard learned co nsel for the parties at length and have also perused the records of the essions trial. (9) ln order to appreciate th first point of identitication, evidence of P.W.1 Dulichand is required t be scrutinized. P.W.1 Dulichand has stated that the accused person were previously known to him. On the fateful night. they were sleepi in their house. At about 11.45 in the night, his wife Kamla Bai (P.W. ) heard some noise. She told it to him and when he switched on his to ch, in the torch focus, he saw that there were two persons out of who one had covered his face with Lungi. 44‘2:“ J I: / natural version and the conviction based u o n q XI~HC-78 WW,WWW ema- WW /3§E 200 WWW WWW mmwm ”é” WW§WW éamm When those persons were see his face with Lungi (appeiiant no,1 Satyendra Kumar), assauited im with the help of an iron chain (Sakab by which he received injuries o hand, head and nose. He stated that the other pers‘on Dhanuk Ram ai o assaulted him with the heip of broken piece of wooden chair. chased the first man, he got hi off by this witness and at that witness identified that the said Kumar and the other person wi Dhanuk was taking away the c the amount contained in the c: scattered on the floor. He has hue and cry, on which, Sadar etc., came to his house and specifically stated that at the s disclosed the names of assailar Dhanuk as the persons who h n by him, they rushed to assault him and the person who had covere‘ He h s further stated in Para 2 that when he face uncovered as the Lungi was taken time also, in the Torch light focus, this person was accused appellant Satyendra as Dhanuk. He also stated that accused ash box which fell down on the way and ash box, alongwith various other articles, further stated vide para 3 that he made am, Vipat, Akturam. Pilaram and Nanku saw him in injured condition. He has tame time i.e., in the night itself he had its i.e., accused appellants Satyendra and tried to commit robbery in his shop and had assaulted him during the c urse of such act. He has also stated that a report under Ex.P.1 was gi en to the S.H.O. in Police Station, on \IQZ/ Ld M__;/ “(J g; XI—HC—78 3a W, m,W Wm .QxJAHMkkl.35% 1H 200 WWW WW(W) m uma‘r’§WWT WWW mmHFs'am :l h amanm which, the investigation has commenced and various articies etc., were seized by the Police. He was sent for medical examination on which the Doctor has examined him. (1 0) P.W.2 Kamla Bai has ccrroborated the version of P.W.1. She has stated that both the accused persons are well known to her. On the \t fateful night, she and her husband both woke up after hearing the noise and in the torch light they saw that the accused persons have entered into their house and they had broke open the doors of their shop. She has stated that the accused a peiiant Satyendra had covered his face with Lungi and he was assists by accused appellant Dhanuk. She has aiso stated that Satyendra has assauited her husband on which he has received injuries. She has further stated that Dhanuk was trying to take away the cash box from the shop which fell down and the amount etc., contained in the box were scattered on the floor of shop. She has also stated that during the course clf scuffle, when her husband was trying to catch Satyendra, the Lungi by which he has covered his face came in the hands of her husband and his face was unveiled and they could see that he was Satyendra and he was identified by them. She has specifically stated that they had identified toth the accused persons. \o\s ‘ 5$ v (12) Though lengthy cross examination has been done by the defence, but the defence has not been aIble to bring out any such fact on record which may suggest that these two witnesses, P.W.1 Duiichand and his identify the assailants or they are falsely wife P.W.2 Kamla Bai could not implicating them in this case. The conduct of these witnesses are quite naturai and their versions are supported by the evidence of P.W.3 and the same village and have stated that P.W.4 who are the villagers of when the hue and cry were made they had reached to the house of the XI-HC—78 3a W, Wan—ct, lam Wm .......o.o.o... Q~K'A- it toil35 o M 200 mmwaiawr) WWW WWW mwewm mawm cg a a: areamar (11) Akturam has been exam ned as P.W.3. He has stated that on hearing hue and cry, he rushed t3 the house of complainant on the fateful night at about 12 p.m. and saw the complainant in injured condition. He has specifically stated that complainant Dulichand (P.W.1) had told him that these accused persons namely Satyendra and Dhanuk had tried to w commit robbery in his shop and they have assaulted him. He has further stated that he has seen various articles including currency notes etc., in the house of complainant. which were scattered on the floor. Similar is the statement of Sadaram who also stated that when he reached the house of the complainant after hearing his hue and cry. he saw various articles lying on the floor and at that time, complainant Duiichand P.W.1 had disclosed the names of the assailants to him also. XI~HC-78 mw,m,%m ' .¢?.\:.$;.19?.;U.%%/ WW $58? 200 Wm<m> WWW wmm mmai%aan%$ J? V, WWffWW %WW complainant in the night itself a nd the complainant had disclosed to them that these two accused persons had entered into their house and tried to commit robbery of the cash bo and they have also injured him with the help of above articles. ln light of the evidence of P.W.1 and P.W.Z (complainant and his wife) which is duly corroborated by evidence the identification or presence of estabiished by the prosecutio‘ witnesses is false or unbelie‘ supported by P.W.3 and P.W.4'and nothing unnatural is coming out from the story. The version of thet seizure of various articles and 2 in which the injuries sustainec examined him on 09.091988. argument raised by learned COL nsel for the appeilants that the appellants were not duly identified to be tl the house of the complainant for committing robbery, and the same cannot be accepted. (13) Now we come to the sec 457 & 450 IPC. Section 450 ll 3C provides punishment for house tress- x and various other articles in the house P.W.3 and P.WA, it cannot be said that these two accused persons has not been 1 and the story set forth by these two Iable, This story has been admittedly ie two witnesses is further supported by also by the medical examination of P.W.1 by P.W.1 were noticed by Doctor who Therefore, there is no force in the first re assailants or the persons entering into ond point about conviction under sections XI—HC-78 3w WWW wmm \vu pass in order to commit offencé punishable with imprisonment for iife. it provides that whoever commits house trespass in order to the committing of any offence pu'nishabie wi imprisonment for life, shall be punished t‘ with imprisonment of either de cription for a term not exceeding 1O years and shaii also be liabie to ti . Section 457 provides punishment for n iurking house—trespass or ho se-breaking by night in order to commit offence punishable with impris nment. it provides that whoever commits lurking house-trespass by nig t or house-breaking by night, in order to the committing of any offenc punishable with imprisonment, shall be punished with imprisonment o either description for a term which may extend to 5 years, and shalt so be liable to tine; and if the offence l intended to be committed is heft, the term of imprisonment may be extended to 14 years. (14) House-trespass. lurki trespass by night are defined under Sections 442, 443 and 444 IPC which reads as under: 442. House trespass -— whoever commits criminal trespass by entering into or emaining in any building, tent or vessel used as a huma dwetling or any building used as a piace for worship, or as a place for the custody of property, is said to commit "house trespass". house-trespass and lurking house- XI—HC*78 HW,WWI§,%ETH§I WTm .g;9.\;j§; . E A.El‘<1 WW(W> ”9711? 200 WWW wmm WW§W®W éamm WWWW ’H’ 443. Lurking house-trespass.—-Whoever commits house trespass having t n precautions to conceal such house- trespass from som person who has a right to exclude or eject the trespass rfrom the building, tent or vessel which is the subject of t e trespass, is said to commit "lurking house-trespass”. 444. Lurking house-tr spass by night—Whoever commits lurking house tres ass after sunset and before sunrise, is said to commit “lur _'ng house- trespass by night”. (15) By the above definitions, it is clear that if the house trespass is committed by taking precauti to conceal such trespass from some o person who has a right to ex lude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, then it shall be termed as lurking house-tre pass. It has further been defined that if such trespass is made aher su et and before sunrise it shall be termed as lurking house- trespass by ght. Therefore, the diiTerence between i the house trespass and lurkin house-trespass by night is writ large which is, that in the former, t ere is no element of concealment or precaution to conceal or to con eal such act of trespass from the person who is having a right to exclud or eject the trespasser from the subject matter of the trespass which ma be a building, or other place as defined in the said sections, but in the la er, the element of concealment is a vital a e ‘4 ” 1 XI-HC-78 HW,W,W 9" ”Mk2, Wm...o ...o. !.o%oo‘o§~ In 200 Wm<W> WWW WWW WW§WW mmaf%aan%m _ V);- éawm factor. Another important factor is that in former the house-trespass must have been committed in ordei to commit an offence punishable with imprisonment for iife, whereas in latter it must have been committed in order to commit an offence punishable with imprisonment only. (16) In the present case, there is evidence to this effect that these appeiiants had tried to com‘ robbery after the sunset and before mt sunrise by making house tre pass of the complainant having taken precautions regarding their co cealment from the complainant and the act committed by the accuse persons would be covered under the definitions of lurking house- tespass by night and in the facts and circumstances, they would be iable for punishment uls 457 IPC. But, since they have been held gui of the offence punishable uls 394 IPC, l which is punishable with impris nment for life, the trial Court has rightly held them guilty of offence pun shable uls 450 IPC also. There appears to be no illegality in convicting he appellants u/s 450 as well as 457 of the IPC and the second argum nt advanced by learned counsel for the appellants can also not be sust ined. (17) Lastly, learned counse for the appellants argues that the appellants were aged about 2 and 30 years on the date of incident. therefore, the punishment awar ed to them u/ss 394 & 450 appears to be ,u XI—HC—78 LH ) Wm .%1%5.ilgkz.g§ an; 200 WW<W> Wwm WWW WW§W®W WWWW ”@f ggwm harsh. He submits that the punishment part should be considered by the Court. (1 8) The offence is said to have taken place in the year 1988 and the conviction and sentence were awarded in the year 1989 and the appeiiants were on bail during trial and they are also on bail during the pendency of this appeal. Ther ore, looking to the long time elapsed and further looking to the quantum property in question, the prayer appears to be reasonable. (19) After hearing learning ounsel for the appellants and learned counsel for the State on this nt, l deem it proper to award R.l. for 3 years with a tine of Rs.500/- u der each section i.e., 450 & 394 IPC to each appellant to meet the en s of justice and to this extent, the said prayer is allowed. (20) ln the result. the appeal is partly allowed. The conviction of the appellants awarded under S ctions 450, 394 & 457 of IPC are maintained. The sentencetaw rded to them under Section 457 is also maintained. However, the sen ences awarded to them under $ections 450 & 394 of IPC are set aside. instead of 5 — 5 years R.l. under these two sections, they are senten to undergo R.l. for 3 - 3 years and to c pay a tine of Rs.500—500/-, default of payment of tine to further i i Ei’ !V XI-HC-78 3a W, Wig,W W K amfas ‘ .§?.\:.’§;JJ.QL.[. . . Fl? 200 Wm<li§faaw mwm WW§WW wmm Wwm 44x gammsr undergo RJ. for 6 - 6 months under each of these Sections. The above . sentences awarded/moditied kyy this Court sha" run concurrentty. It is stated that the appellants are on bait. They are required to surrender K before the triai Court for underoloing the remaining sentences. A‘copy of this judgment be sent to the trial Court immediately for compliance. \‘wf