-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Dharmendra alias Phusa Ram Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.353/2007 against the judgment dt.30.4.07 passed by Addl.Sessions Judge (FT) No.1, Jodhpur, in Sessions Case No.49/2006. Date of Judgment: Aug 05, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Sandeep Mehta, for appellants. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Addl.Sessions Judge (FT) No.1, Jodhpur dated 30.4.07, whereby he has convicted & sentenced the accused appellants Dharmendra alias Phusa Ram and Ashwani alias Sheru as under: U/Sec.459 IPC One year's S.I. & a fine of Rs.3000/- & in default, to further undergo 3 months' additional imprisonment; -2- U/Sec.325/34 IPC Six months' S.I. & a fine of Rs.500/- & in default, to further undergo one month's additional imprisonment; U/Sec.323 IPC One month's S.I. & a fine of Rs.250/- & in default, to further undergo 7 days' additional imprisonment; All the substantive sentences were ordered to run concurrently. 2. The case was instituted on the basis of F.I.R., Ex.P.1 lodged by complainant Rajkumar on 11.10.2005 in which it was alleged that on 10.10.05 at 9.00 PM, when he alongwith his brother Mahesh Kumar Joshi and father Paras Ram Joshi were sitting at their house, four to five persons who were armed with weapons, abruptly entered into their house and threatened to kill them. Accused appellant Dharmendra, who was armed with sharp edged weapon, inflicted blows on his brother, upon which his brother fell down. Thereafter, the brother of Dharmendra viz; Sheru (appellant No.2) caught hold of his father and pressed his neck and also gave blows with some sharp edged weapon. Upon hearing their cries, his uncle, aunt and mother & neighbours rushed towards the place of incident. On seeing them, the accused persons fled away. Upon this report, the police registered a case u/ss.143, 148, 149, 458, 307, 342 & 323 IPC -3- and commenced investigation. After investigation, the accused were challaned u/ss.325 and 458/34 IPC. The case was committed to the court of Sessions, where accused were charged u/ss.459, 325/34 and 323 IPC. The prosecution examined 11 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led not evidence in their defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above. 3. Learned counsel for the appellants has not questioned the legality of conviction of accused u/ss.323 and 325/34 IPC but, however, submitted that offence u/s.459 IPC is not made out. In this regard, he has drawn my attention towards the statements of the prosecution witnesses, who have said that no force was used to open the gate. The learned trial Judge while discussing the scope of Section 445 IPC, held that the fifth requirement of house breaking is proved because the accused entered into the house by using criminal force, as they pushed the door. Here in the present case, if this definition of the House-breaking given u/s.445 IPC is read in the light of the statements of the prosecution witnesses, then PW 2, Paras Ram, who is the owner of the house and injured, has said in the cross examination that chick iron gate from inside was open and there was no bolt and anybody can enter into it. PW 4 Premlata Joshi, wife of Paras -4- Ram (PW 2), has said in her examination-in-chief that the gate was opened with force and the incident took place outside the house. PW 5 Mahesh Joshi, injured, son of Paras Ram (PW 2), has said in the examination-in-chief that the accused entered into the house by opening the door with the force of legs but when he was confronted with the police statement Ex.D.3, he said that he did not know why this fact was not written by the police in his statement. It is admitted position that the fighting had taken place outside the house and the accused had entered into the house but the fact of house breaking seems to be suspicious in the light of un-corroborative statements of the prosecution witnesses, who are family members. The condition No.5 of Section 445 IPC with regard to House-breaking comes into play, only when an accused, while entering or departing, uses criminal force. It is a case of house trespass in order to commit offence punishable with imprisonment u/s.451 IPC. The reasons assigned by the learned trial Judge while recording conviction u/s.459 IPC on the basis of fifth ingredient of Section 445 IPC, are not convincing, therefore, the conviction of the accused appellants u/s.459 IPC deserves to be altered to Section 451 IPC. 4. Learned counsel for the appellants submits that this is the first offence of the accused appellants and they are of young age -5- and at the time of commission of offence, they were about 22 years of age, therefore, instead of sentencing them to the period of imprisonment, they may be granted probation under the Probation of Offenders Act by virtue of provisions contained in Section 360 CrPC, as the offences u/ss.451, 325 and 323 IPC are not punishable with more than seven years. He further submits that if the accused appellants are granted probation, their future career will not get adversely affected by virtue of provisions contained in Section 12 of the Probation of Offenders Act. The contention of the learned counsel for the appellants appears to be just and reasonable. 5. Consequently, this appeal is partly allowed. While maintaining conviction of petitioners Dharmendra alias Phusa Ram and Ashwani alias Sheru u/ss.323 and 325 r/w 34 IPC, their conviction u/s.459 IPC is altered to Section 451 IPC but instead of sentencing them under the above offences, they are released u/s.4 of the Probation of Offenders Act, 1958, provided each of them furnishes a personal bond in the sum of Rs.10,000/- and one surety in the like amount to the satisfaction of the learned trial court with the condition that they will keep peace and be of good behaviour for a period of one year, within 15 days from today, else they will serve out the sentence. However, both the appellants shall pay compensation of Rs.5000/- each, in total -6- Rs.10,000/-, to both the injured viz; Paras Ram (PW 2) and Mahesh Joshi (PW 5) in equal proportion. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS