IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Rev.No.104 of 2003. Date of Decision: 26.5.2010. _______________________________________________ Prem Chand. ….Petitioner. Versus State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? For the petitioner : Mr. Bimal Gupta, Advocate. For Respondent. : Ms. Ruma Kaushik, Addl. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner is aggrieved by the concurrent judgment of the courts below sentencing him for offences under Sections 454 and 511 of the Indian Penal Code. The petitioner challenges his conviction under both these sections. The prosecution case in brief is that on 10.9.1999 at about 4 a.m., complainant Ramesh Chand, who had been residing in the first floor of his house situated at Baroi, heard some noise in the ground floor where his clinic and two rooms were situated. When he came out in Verandah of his house, he saw that one person was present in the room of Palmo, who was the tenant and the light of the room was switched on. On suspicion that things were not all right, he came down Whether reporters of the Local papers are allowed to see the judgment? . 2 and saw the person was scattering articles in the room. He thereupon raised an alarm shouting “Chor-Chor” and tried to bolt the door of the room but this person came out and tried to escape. However, he was apprehended by the complainant on the road. In the meantime, PW-3 Sh.Des Raj and another people collected at the spot. The petitioner there upon disclosed his name. The petitioner was directed to face trial under Sections 454, 380 and 511 of the Indian Penal Code. The prosecution has examined nine witnesses in all. Leaving aside the police witnesses, two witnesses, namely, PW-3 Des Raj and PW-2 Sh. Ramesh Chand are important. PW-2 Sh. Ramesh Chand states in his evidence that he is a resident of village Baroi where he has a clinic on the ground floor and his residence is above the clinic. One room in the ground floor has been rented out to one Tibetan. On 10.9.1999 at about 4 a.m., he heard some noise on the door and he went out in the Verandah and saw that the accused had forced entry in the room rented out to the Tibetan. He tried to escape but was apprehended by this witness. He proved on record F.I.R. Ext. PW7/A. PW3 Sh. Des Raj also states that on 10.9.1999 at about 4 a.m., he heard the sound of “Chor-Chor” where after he rushed to the spot and saw that PW-2 had apprehended the accused. Learned counsel for the petitioner submits that the evidence on record is inconclusive on the identity of the 3 apprehended person and on the fact that he had actually trespassed into the house with intent to commit theft. He further submits that the evidence of the prosecution even if taken on its face value untested by cross examination, does not establish the offences for which the petitioner has been charged. I cannot accept this submission of the learned counsel for the petitioner that the petitioner had not actually trespassed into the room of the complainant on the ground floor. However, the second submission that there is no evidence on record to show that the trespass was committed with intention of committing theft requires to be accepted. There is no evidence on record to show that the petitioner had broken the lock of the premises with intent to commit theft. The photographs on record Ext.PA, Ext.PB and Ext. PC which have been proved on record do not in any manner show that the articles/goods were scattered (if at all) in such a fashion which would disclose the intention of the petitioner to commit theft. On the other aspect that the petitioner was apprehended while trying to flee from the house, I cannot persuade myself to hold that the petitioner was not apprehended from the spot. The evidence of both PW-2 and PW-3 is clear and unequivocal on the identity of the petitioner. I hold that the petitioner is guilty of house trespass under Section 448 I.P.C. and not of trespass with intent of committing theft. 4 In these circumstances offences under Sections 454 and 511 I.P.C.are not made out. The sentence imposed by the courts below is modified and the petitioner is sentenced to pay a fine of Rs. 1,000/- under Section 448 I.P.C. I have been persuaded to take this view on the fact that the offence has committed in 1999 and this case has remained pending for a period of more than 11 years. The fine shall be deposited by the petitioner in the Court of Chief Judicial Magistrate, Kangra at Dharamshala within a period of two months from today. It is clarified that in case fine is not deposited, the petitioner shall serve sentence of one month simple imprisonment. The revision petition is accordingly disposed of. There shall be no order as to cost. (Dev Darshan Sud), Judge. May 26, 2010(R)