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Judgment
I. Mahanty, J.—The Appellant has sought to file the present appeal challenging the Order of conviction as well as the sentence recorded by the Addl. Sessions Judge, Sambalpur in Sessions Trial No. 4 / 45 of 1989 convicting the Appellant u/s 458 of Indian Penal Code and sentencing him to undergo R.I. for a period of one year.
The case of the prosecution is based on the F.I.R. lodged by one Sri Gangadhar Satpathy, the Forester, on 18.10.1988 at about 8.00 A.M. before the Officer-in-Charge, Dhama Police Station. It is alleged that the present Appellant came to the quarters of the informant (P.W.1) who was the Forester at Larasara. At that point of time, it is stated that the informant was preparing himself to go to bed after taking his dinner. It is alleged that the accused-Appellant broke upon the door, entered into the house and abused the informant with filthy language. The further case of the prosecution is that the accused allegedly pressed the throat of the informant and showing the informant three cartridges, stated that he has obtained the same in order to kill him.
It further reveals from the F.I.R. that the accused also brought out a knife and attempted to assault the informant with the same, but somehow, the informant managed to free himself and escaped from that place. Thereafter, it is alleged that the accused once again entered into the official quarters of the Forester, damaged the household articles and removed cash amounting to Rs. 500. On the basis of the aforesaid allegation as contained in the F.I.R., Dhama P.S. Case No. 43 of 1988 was registered and after investigation, charge-sheet was submitted against the Appellant under Sections 458, 307 and 380 of the Indian Penal Code. The plea of the Appellant was a complete denial.
In order to substantiate the case, the prosecution examined seven witnesses. P.W. 1 was the Forester (informant), P.W. 2 is the Forest Guard, P.W. 3 is the Choukidar of the Forest Inspection Bungalow, P.W. 4 is the post occurrence witness who was declared hostile to the prosecution, P.W. 5 is a witness to the seizure, P.W. 6 was declared hostile and P.W. 7 is the Investigating Officer. On behalf of defence, no witness is examined.
On a perusal of the judgment impugned, it appears that on the basis of the findings recorded in paragraph-8 of the Judgment, the Trial Court came to hold that "there is no evidence that the accused had entered into the quarters of the Forster, caught hold his neck and pressed his throat or attempted to stab the Forester with a knife". The Trial Court also further came to hold that "the prosecution has failed to establish that the accused had removed any cash from the room of the informant and accordingly, came to hold that the prosecution has failed to substantiate the charge under Sections 307 and 380 I.P.C.
However, the Trial Court in the impugned judgment and in particular, in paragraph-10, thereof, came to hold as follows:
I find that the prosecution has been able to prove that during the night of the occurrence the accused trespassed to the quarters of p.w.1Gangadhar Satpathy and attempted to cause hurt to him. Therefore a charge u/s 458 I.P.C. has been proved against the accused. xxx
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Thereafter, on the finding that the Appellant is guilty u/s 458 I.P.C., the Trial Court while considering the question of sentence, recorded that the accused-Appellant appears to be a first time offender but taking the nature of the offence into consideration, did not extend the benefit of the Probation of Offenders Act and sentenced the Appellant to undergo R.I. for one year without any fine for the offence u/s 458 of the Indian Penal Code.
Mr. Dayananda Mohapatra, Learned Counsel for the Appellant, has sought to challenge the said conviction and sentence, inter alia, on the following grounds:
(a) There was an in ordinate delay in lodging the F.I.R., inasmuch as the occurrence allegedly took place at 9.00 P.M. on 17.10.1988 and the F.I.R. was lodged at 8.00 A.M. on the next date and further, the delay had not been explained,
(b) The Trial Court having disbelieved the prosecution story regarding the accused entering into the quarters of the Forester and thereby acquitting him u/s 307 and 380 of Indian Penal Code, convicting the accused u/s 458 of the Indian Penal Code for commission of offence of lurking house trespass, is not sustainable.
(c) The solitary testimony of the P.W. 1 cannot be a basis for concluding that the accused entered into the quarters of the Forester.
(d) On consideration of the entire evidence on record, the requirements of Section 458 of the Indian Penal Code have not been made out.
For the purpose of appreciating the contentions advanced by the Learned Counsel for the Appellant, as well as the arguments advanced by the Learned Counsel for the State, it becomes essential to take note of Section 458 of Indian Penal Code which is as follows:
Lurking 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 causing 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.
Lurking house-trespass has been defined in Indian Penal Code u/s 443 I.P.C., which is quoted below:
Lurking house-trespass.- Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house-trespass"
Lurking house-trespass "by night" has been stipulated u/s 444 of Indian Penal Code, which is quoted below:
Lurking house-trespass by night.�Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit "lurking house trespass by night"
From the evidence recorded in course of the trial and in particular, the statement of P.W. 1-Gangadhar Satpathy, it appears that on 17.10.1988 at about 9.00 P.M. while he was going sleep, the accused-Appellant Sarat Dip came fully drunk and abused him saying "SALA MAGIHYA MAUSA YOU ARE TORTURING OUR MEN" and giving push to the door entered inside the room by breaking open the door. It further appears from the evidence of P.W. 1 that while he was coming out of the room, the accused caught hold of his neck, but P.W.l holding the hands of the accused pulled him outside. At this point of time, the informant called out for the Forest Guard (P.W.2) and Forest I.B. Choukidar (P.W.3) and some others including Raghu Mahali, (P.W.5) and Bhaja Bhoi (P.W.6). After their arrival, the accused declared that he intends to kill the informant with the cartridges which he had brought and saying so, he brought out a knife from his pocket. The informant, (P.W.1), at that point of time escaped and went to the nearby Forest I.B.. Thereafter, the informant returned to his quarters and while he was there, it is alleged that the accused returned and once again entered into the quarters of the informant. The informant out of fear ran away out of the quarters once again. It is alleged that the accused damaged various articles in the quarters, i.e. transistor, ghee etc. and removed cash of Rs. 500 / - which was kept under the pillow of the informant and after causing such damage, the accused left the place.
The Learned Sessions Judge after dealing with the evidence recorded in course of the trial, acquitted the accused of the offence under Sections 307 and 380 of Indian Penal Code by giving his finding in paragraph-8 of the judgment which is quoted herein below:
Thus it appears from the evidence of the prosecution that except P.W. 1 no other witness has seen the accused entering inside the quarters of the Forester and caught hold of his neck and pressed his throat. There is also no evidence that the accused took any attempt to stab the Forester with a knife. The evidence of the Forester that the Forest Guard (P.W.2) and the I.B. Choukidar (P.W.3) have seen that the accused was showing a knife and declared that he will kill the Forester with his cartridges. But P.W. 2 and P.W. 3 do not support this part of the evidence of P.W. 1. It also appears from the evidence of the Forester P.W. 1 that the currency notes he kept under his pillow were not removed by the accused but the same were lying on the floor of his bedroom which were collected later on. So there is no evidence in support of the charge under Sections 307 and 380 of Indian Penal Code against the accused.
The Trial Court, thereafter, dealt with the offence u/s 458 of the Indian Penal Code and after discussing the evidence of the witnesses in paragraph-9, concluded this aspect in paragraph 11 of the Judgment, which is quoted below, by holding the accused guilty of such offence. Section 458 I.P.C., reads as follows:
Lurking 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 causing 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.
On a reading of the aforesaid provision, in order to bring the offence within the ambit of the said Section, the following requirements have to be satisfied:
(a) There must be a "criminal trespass", i.e., a person must have entered into a property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person In possession of such property. Therefore, firstly the requirements of criminal trespass must be satisfied.
(b) The criminal trespass must have occurred by entering into or remaining in any building, tent, vessel used as a human dwelling etc. by the accused, as required under Section-442 of the Indian Penal Code.
(c) The "criminal house trespass" must have been committed by a person who has taken "precautions to conceal such house-trespass" as required u/s 443 of Indian Penal Code in order to commit lurking house-trespass.
(d) The "lurking house trespass by night" must have been committed after sun set and before sun rise.
Therefore, to fulfill the requirements of Section 444 of the Indian Penal Code, it must be satisfied that the "criminal trespass" into the dwelling house, must have been committed by a person who has taken precaution to conceal such house trespass and such an act must have been committed after sun set and before sun rise, then only such an act can be termed as "lurking house trespass by night".
Therefore, to make out an offence u/s 458 I.P.C., the requirements of Section 444 I.P.C. must be satisfied first and thereafter, the accused must have made "preparation" for causing 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. Therefore, to satisfy the requirements of Section 458 I.P.C., it is clear that the requirement of Section 444 I.P.C. "lurking house trespass by night" must be satisfied and therefore, evidence must be available on record to show that the "preparation" for the aforesaid act must have been made in order to commit such an offence.
On an analysis of law as noted hereinabove, the conclusion arrived at by the Learned Sessions Judge in paragraph -10 of the impugned Judgment, as noted hereinabove, is clearly perfunctory since no discussion/recording whatsoever has been made by the Learned Sessions Judge in its order to indicate as to how all the requirements of an offence u/s 458 I.P.C. have been satisfied.
On an analysis of the evidence as emanated in course of the trial, it would be clear that the accused-Appellant and P.W. 1 (informant) knew each other quite well prior to the occurrence. This fact would emanate from the evidence of P.W. 3 (Choukidar of the Forest I.B.) who has stated as follows:
We came and found accused and the forester were standing in front of my quarters and the accused was saying ''Mousa'' (Maternal Uncle) and the Forester was responding him. Except this, I have not heard any other talk. I cannot say if both of them were drunk.
Apart from the aforesaid evidence, P.W. 1 (informant) himself in his examination-in-chief alleges that the accused abused the informant by stating "SALA MAGIYA MAUSA YOU ARE TORTURING OUR MEN". The term ''Mausa'' indicates a term of endearment even if a person may not be necessarily related to each other. Therefore, such evidence establishes the fact that the informant and the accused knew each other quite well and at least socially.
Apart from the above, it also emanates from the evidence on record that the occurrence took place when the accused was drunk and gave a push to the outer door of the quarters of the victim and shouted in abusive filthy language. At that point of time, the informant came out of the room by opening the door, whereafter, the accused allegedly caught hold of the neck of the informant and the informant caught-hold the accused''s hands and pulled him outside, which is evident from the evidence of P.W. 1.
The aforesaid facts clearly indicate that although the incident took place in night at 9.00 P.M., yet there has been no attempt by the accused to take any measures to conceal such house trespass. The accused has not taken any measure or precautions to conceal himself from such house trespass and therefore, the offence u/s 443 of Indian Penal Code, i.e., lurking house trespass is not made out.
Since I am of the view that lurking house trespass has not been proved by the prosecution in the present case, I am further of the view that no conviction u/s 458 of the Indian Penal Code for lurking house trespass or house breaking by night after preparation for hurt, assault or wrongful restraint is made out.
After having come to the conclusion as noted hereinabove, that an offence u/s 458 I.P.C. has not been made out in the present case, yet, I am of the view that it remains onerous task on the Appellate Court to consider the facts of the present case and to see as to whether any other offence under the Indian Penal Code is made out or not. In this respect, it is important to take note of Section 445 I.P.C. which pertains to house-breaking and fifth proviso thereof read with Section 446 I.P.C. which are quoted below:
House breaking - A person is said to commit "house-breaking" who commits house trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say -
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Fifthly.- If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault."
House-breaking by night. - Whoever commits house-breaking after sunset and before sunrise, is said to commit "house-breaking by night
16(Sic). From the evidence on record, it transpires that the accused-Appellant was a leader of gang who were doing illicit activities inside the forests and entered into the quarters of the forester as a show of strength/intimidation. The activities of the Appellant were of such a nature that persons like the Forester, Forest Guard and Choukidar of Forest I.B. were so fearful of him that they had to hide when the accused Appellant came back for the second time into the quarters of the informant (P.W.1).
In the present case at hand, the evidence of P. Ws.1, 2 and 3 clearly establishes that the accused Appellant committed "house breaking" by breaking the door of P.W. 1 (informant). Since the Appellant effected his entrance into the house by using "criminal force" and/ or by committing an assault or by threatening to assault any person and such an offence took place at ''night'', the accused Appellant is guilty of an offence u/s 446 I.P. C, i. e., house-breaking by night, i.e. house breaking after sun set and before sun rise, since the occurrence took place at 9.00 P.M. at night, the accused-Appellant is guilty of the offence u/s 456 I.P.C., i.e., "lurking house trespass or house breaking by night", which prescribes punishment with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Considering the nature of the offence and the evidence available on record, I deem it necessary to exercise my authority vested u/s 386 (b) (ii) of the Code of Criminal Procedure and on hearing the Learned Counsel for the Appellant as well as Learned Counsel for the State, the findings arrived at by the Trial Court are modified to the extent noted above by maintaining the sentence of R.I. for one year awarded by the Trial Court.
I find from the Order Dated 21.2.1990 passed by this Court that the Appellant has been released on bail in Misc. Case No. 41 of 1990. The bail order stands cancelled and the Appellant is directed to immediately surrender before the Learned Addl. Sessions Judge, Sambalpur in S.T. Case No. 4 / 45 of 1989 to serve out the remaining period of sentence imposed against him.
The appeal is disposed of with the aforesaid directions.
Appeal disposed of.