Himachal Pradesh High Court
State Of H.P vs Om Parkash on 6 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 299 of 2010 Reserved on: 12.10.2023 .
Date of Decision:06.11.2023
State of H.P. ....Appellant
Versus
Om Parkash .....Respondent
of
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes rt For the Appellant : Mr. R.P. Singh, Deputy Advocate General.
For the Respondent : Mr Chander Narayan Singh, Advocate.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 16.01.2010 passed by learned Judicial Magistrate First Class (JMFC), Rajgarh, Camp at Sarahan, District Sirmaur, H.P., vide which, the respondent (accused before the learned Trial Court) was acquitted of the commission of offences punishable under Sections 451, 323, and 325 of IPC. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 2
2. Briefly stated, the facts giving rise to the present appeal are that the prosecution presented a challan against the .
accused for the commission of offences punishable under Sections 451, 323, and 325 of IPC. It was asserted that informant Promila Devi (PW1), her husband Shyam Dutt (PW4), and her children were taking food on 15.09.2007 at around 10:00 AM in of their kitchen. Her mother-in-law Satya Devi (PW-5) was working in her field. Somebody called Shyam Dutt from the rt courtyard of the informant's house. Shyam Dutt came out and saw the accused in the courtyard. The accused gave beatings to Shyam Dutt. When Promila and her mother-in-law Satya Devi (PW5) tried to rescue Shyam Dutt, the accused gave beatings to them. The informant sustained injuries on her left hand and the waist. Satya Devi suffered injuries on her stomach and back.
Shyam Dutt became unconscious. Om Prakash gave beatings to the informant party without any reason. The injured were taken to the hospital and intimation was given to the police. The police recorded entry no. 10 (Ext. PW6/A). HC-Ashok Kumar (PW8) went to the hospital for verification. He recorded the statement of informant Promila Devi (Ext. PW1/A), which was sent to the police station where FIR (Ext. PA) was registered. Dr. Vinay ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 3 Kumar (PW7) medically examined Promila Devi and advised an X-ray. A fracture on the little finger was detected. Hence, the .
injury was stated to be grievous. He issued the MLC (EX PW7/A).
He also examined Satya Devi and found simple injuries on her person. He issued the MLC (Ext. PW7/B). He examined Shyam Dutt and found simple injuries on his person. He issued the MLC of (Ext. PW7/C). Ashok Kumar went to the spot and prepared the site plan (Ext. PW8/C). The informant produced her slippers rt (Ext.P1), which were seized vide memo (Ext. PW1/A). Statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.
3. The accused was charged with the commission of offences punishable under Sections 451, 323, and 325 of the IPC.
He pleaded not guilty and claimed to be tried.
4. The prosecution examined 9 witnesses to prove its case. Promila Devi (PW1) is the victim/informant. Sheela Devi (PW2), and Bimla Devi (PW3) are the eyewitnesses. Shyam Dutt (PW4) and Satya Devi (PW5) sustained injuries in the incident.
Constable-Virender Singh (PW6) proved the entry in the daily ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 4 diary. Dr. Vinay Kumar (PW7) prepared the medico-legal certificates of the injured. HC-Ashok Kumar (PW8) conducted .
the investigation. Dr. D.D. Sharma (PW9) went through the X-
ray and issued a report that the informant had suffered a fracture.
5. The accused in his statement recorded under Section of 313 of Cr.P.C. denied the prosecution case in its entirety. He rt stated that a false case was made against him due to enmity.
6. Learned Trial Court held that there was no evidence of the house trespass. There was nothing on record to establish that the incident happened over the land belonging to Shyam Dutt and Promila Devi; hence, the offence under Section 451 of IPC was not made out. Rattan and Tulsi resided in the vicinity;
however, they were not associated. Sheela and Bimla claimed to be the eye-witnesses but they were not residents of the village.
There were contradictions in their testimonies. It was stated by them that villagers had gathered on the spot; however, no villagers were examined. The prosecution's version that Shyam Dutt had become unconscious on the spot and was not taken to the hospital was improbable. A reasonable doubt was created in ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 5 the prosecution version, the benefit of which would go to the accused; hence, the accused was acquitted.
.
7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court had not properly appreciated the evidence on record. The reasoning of the learned Trial Court is of unsustainable. There was no enmity between the parties. The prosecution rt witnesses deposed consistently, and their testimonies could not have been discarded due to the non-
examination of the other persons of the locality. It was wrongly held that Section 451 of IPC was not attracted. It was specifically stated by the witnesses that the accused gave beatings outside the kitchen and the map shows the point 'C' as the vacant courtyard between the room and the kitchen. The testimonies of the injured witnesses supported the prosecution version and the learned Trial Court erred in acquitting the accused. Hence, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
8. I have heard Mr. R.P. Singh learned Deputy Advocate General for the State/appellant and Mr. Chander Narayan Singh learned counsel for the accused/respondent.
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 69. Mr. R.P. Singh, learned Deputy Advocate General for the appellant submitted that the learned Trial Court below erred .
in holding that the offence punishable under Section 451 of IPC was not made out. It was duly proved by the site plan that the place of incident was located between the room and the kitchen of the informant and it was part of the house. The testimonies of of injured witnesses could not have been discarded on the ground that independent persons were not associated. The presence of rt the injured witnesses on the spot was duly established by the injuries and their testimonies should not have been discarded.
Hence, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.
10. Mr C.N. Singh, learned counsel for the accused/respondent supported the judgment of the Trial Court and submitted that no interference is required with the same. He submitted that this Court would not disturb the findings recorded by the Trial Court in an appeal against the acquittal unless they were perverse. The view taken by the learned Trial Court was reasonable and there was no perversity in it; hence, he prayed that the appeal be dismissed.
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 711. I have given considerable thought to the rival submissions at the bar and have gone through the records .
carefully.
12. The present appeal has been filed against a judgment of acquittal. The Hon'ble Supreme Court laid down the parameters of deciding an appeal against acquittal in of Jafarudheen v. State of Kerala, (2022) 8 SCC 440, as under:-
rt "Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened.
Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
13. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:-
"15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 8 Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of .
police(2012) 10 SCC 383 whereunder it came to be held as follows:
"33. The expressions "erroneous", "wrong" and "possible" are defined in the Oxford English Dictionary in the following terms:
"erroneous.-- wrong; incorrect.
of wrong.--(1) not correct or true, mistaken.
(2) unjust, dishonest, or immoral.
rt possible.--(1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable."
34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 9 agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of .
the trial court."
16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 it has been held by this Court as under:
rt "14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" in terms as understood in law has been defined to mean "against the weight of evidence". We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.
17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 10 power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed.
.
18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, it has been held by the Privy Council as under:
But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:
of
1) The views/opinion of the trial judge as to the credibility of the witnesses;
2) The presumption of innocence in favour of the accused;
rt 3) The right of the accused to the benefit of any doubt; and
4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect:
"42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge:
(1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 11 on the evidence before it may reach its own conclusion, both on questions of fact and law. (3) Various expressions, such as, "substantial .
and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of of "flourishes of language" to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to rt its own conclusion.
(4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court."
14. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court.
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 1215. The Learned Trial Court held that the offence punishable under Section 451 of IPC was not made out, because .
the place of incident was not proved to be the part of the house owned/possessed by the informant. Sh. R.P. Singh learned Deputy Advocate General, relied upon the site plan (Ext. PW8/C) to submit that the place of incident has been shown as point 'C' of between the kitchen and the house. This clearly shows that the place of the incident was part of the house. This submission rt cannot be accepted. In Jagdish Narain v. State of U.P., (1996) 8 SCC 199: 1996 SCC (Cri) 565, the Trial Court held that the Investigating Officer had failed to show the spot from where the shots were fired by the accused and this would affect the truthfulness of the prosecution case. The Hon'ble Supreme Court held that whatever has been told to the Investigating Officer during the investigation cannot be proved as substantive evidence because of the prohibition contained in Section 162 of Cr.P.C. The site plan is only admissible to establish what was seen by the I.O. himself and not what was told to him. It was observed at page 202:
"9. In responding to the next criticism of the trial court regarding the failure of the Investigating Officer to indicate in the site plan prepared by him the spot ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 13 wherefrom the shots were allegedly fired by the appellants and its resultant effect upon the investigation itself, the High Court observed that such failure did not .
detract from the truthfulness of the eyewitnesses and only amounted to an omission on the part of the Investigating Officer. In our opinion, neither the criticism of the trial court nor the reason ascribed by the High Court in its rebuttal can be legally sustained. While preparing a site plan an Investigating Police Officer can certainly record what he sees and observes, for that will of be direct and substantive evidence being based on his personal knowledge; but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who rt had seen the incident. When a witness testifies about what he heard from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the latter in accordance with Section 157 CrPC (sic Evidence Act). However, such a statement made to a police officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) CrPC appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub-section (2) of the section applies. That necessarily means that if in the site plan, PW 6 had even shown the place from which the shots were allegedly fired after ascertaining the same from the eyewitnesses it could not have been admitted in evidence being hit by Section 162 CrPC. The law on this subject has been succinctly laid down by a three-judge Bench of this Court in Tori Singh v. State of U.P. [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] In that case it was contended on behalf of the appellant therein that if one looked at the sketch map, on ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 14 which the place where the deceased was said to have been hit was marked, and compared it with the statements of the prosecution witnesses and the medical evidence, it .
would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it had been actually caused if the deceased was at the place marked on the map. In repelling the above contention this Court observed, inter alia:
"... the mark on the sketch map was put by the Sub- Inspector who was obviously not an eyewitness to the of incident. He could only have put it there after taking the statements of the eyewitnesses. The marking of the spot on the sketch map is really bringing on record the conclusion of the Sub-Inspector on the basis of the rt statements made by the witnesses to him. This in our opinion would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot, but any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during the investigation."
(emphasis supplied)
10. While on this point, it will be pertinent to mention that if in a given case the site plan is prepared by a draftsman
-- and not by the Investigating Officer -- entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence as has been observed by this Court in Tori Singh case [AIR 1962 SC 399 : (1962) 1 Cri LJ 469 : (1962) 3 SCR 580] in the following passage:
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 15"This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where .
exactly the assailants and the victims stood at the time of the commission of the offence, the draftsman put down the places in the map, in Santa Singh v. State of Punjab [AIR 1956 SC 526: 1956 Cri LJ 930]. It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by of Section 162 of the Code of Criminal Procedure."
(emphasis supplied)"
16. Therefore, the place which is depicted in the site plan rt cannot be taken as the place of incident.
17. Even, if the site plan is taken into consideration, it does not show that the place of the incident was surrounded by walls. It was mentioned in the FIR that the accused called Shyam Dutt from outside the home. Promila Devi (PW1) and Shyam Dutt (PW5) stated that the accused came outside the home and enquired about Shyam Dutt, on which Shyam Dutt went outside the room. Bimla Devi (PW3) stated that the accused was beating Shyam Dutt near the kitchen. These statements clearly show that the accused had called Shyam Dutt from outside the home.
The site plan does not show that the place of incident is surrounded by a wall. It was laid down in Lakshmana Koundan v.
King-Emperor, 1926 SCC OnLine Mad 460: AIR 1927 Mad 343: 1927 ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 16 Cri LJ 248 : (1927) 52 Mad LJ 143, that an open plot of land with a mere boundary fence or even a masonry will not fall within the .
definition of building or the house. Since the building is followed by the words tent and vessels, therefore, presence of some structure is necessary to protect the persons residing in it. It was observed:
of "5. Similarly as regards the conviction under S. 454 there is no finding in the case that the place where the trespass rt was committed was a building, tent or, vessel within the meaning of S. 442, Penal Code, 1860, which defines house-trespass, because to constitute an offence of housebreaking there must be house-trespass. If the place where the offence was committed was a building, tent or vessel, then there is in the evidence sufficient to constitute the act of the accused an offence of housebreaking by reason of his Entering the passage which the accused knew to have been fastened against such entrance as explained in Cl. 6 of S. 445, Penal Code, 1860, but in the absence of a finding that the place was a house or building, it follows that the conviction under that section could not be possibly regarded as proper.
6. I have already referred to the difficulty in finding that an open plot of land with a mere boundary fence even a masonry wall, could, for purposes of either of the said sections, be regarded as a building or a house. The expression 'building,' more especially having regard to the expressions 'Tent' and, 'Vessel' that follow must be regarded as indicating some structure intended for affording some sort of protection to the persons dwelling inside it or for the property placed there for custody. Any structure which does not afford any such protection by itself but merely serves as fencing or other means of merely preventing ingress or egress cannot make the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 17 place a building or a house within the meaning of either of those two sections. Though the facts proved cannot in my judgment constitute an offence under either of the .
said sections, there may, however, arise a question whether the facts proved would or would not amount to an offence of criminal trespass as defined by S. 441, Penal Code, 1860. There is no question in this case with reference to this section of any house or building but it is only property in possession of another and that requisite is satisfied in this case because the pound was of undoubtedly property in possession of the authorities. The purpose for which the accused entered upon the property was not, however, to intimidate, insult or annoy any person in possession, and therefore in order to rt constitute an offence of criminal trespass the person entering, as in this case the accused, must have entered with the intention of committing an offence. The word 'offence' is defined under S. 40, Penal Code, 1860, as follows:
Except in the chapter and sections mentioned in Cls. 2 and 3 of this section, the word 'offence' denotes a, thing made punishable by this Code."
18. Lahore High Court also considered this question in Sundar versus Emperor, 1919 SCC OnLineLah85: AIR 1919 Lah 333 and held that a courtyard partly surrounded on the front by the wall without any roof over it or a door leading to the street, will not fall within the definition of the building. It was observed:
"1. The petitioner has been convicted of having committed house-trespass in order to the committing of an offence punishable with imprisonment and has been sentenced under S. 451, I.P.C., to six months of rigorous ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 18 imprisonment. Now, a perusal of the plan and the evidence on the record makes it absolutely clear that the place, where the woman, Mt. Nur Bhari, was sleeping, is a .
courtyard outside her house; and I do not think that this courtyard can be regarded as a house or a building used as a human dwelling. This is the view taken by the Bombay High Court in Queen-Empress v. Rama [Rat. Unrep. Cr. Cas.
484.]. The same point is discussed at p. 2058 of Gour's Penal Law of India, Vol. 2, Ed. 2, where the learned author points out that a compound or enclosure is not a building of or a house within the purview of the section. It is to be observed that though the courtyard is partly surrounded on the front by a mud wall, that wall does not surround the whole front of the courtyard. Further, there is neither rt a roof over the courtyard, nor a door or gateway leading into the street. The courtyard is in many respects similar to the enclosure dealt with in Kohmi v. Emperor [A.I.R. 1914 Lah. 584: 26 I.C. 305: 24 P.R. 1914 Cr.].
2. Accordingly I hold that an essential ingredient of the offence of house trespass has not been established, and it is unnecessary to discuss the case on the merits. I must however say that there is considerable force in the contention of the learned counsel for the petitioner that the accused was beaten by the woman's husband and his relatives when he demanded his debt; and that this case was brought in order to avoid the consequences of the assault made on the petitioner."
19. Allahabad High Court also held in Emperor v.
Makkhan, 1945 SCC OnLine All 67: ILR 1945 All 558: 1945 OWN 227:
AIR 1945 All 81: 1945 Cri LJ 750, that an uncovered sehan will not fall within the definition of the house and trespass into the same will not constitute the house-trespass. It was observed:
"The report of the incident was made at 5.30 a.m., at ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 19 police station Tewari, circle No. 1 which is at a distance of five miles from Nagla Shamla by means of a letter in Hindi sent by Nek Ram through Rameshri chaukidar of .
the village. The name of these four accused was mentioned in the first information report. Learned counsel for the appellants has argued that his clients were charged only with the offence of dacoity, and house-
breaking is not one of the necessary ingredients of that offence which includes robbery and extortion or attempt to commit robbery or extortion by five or more persons.
of His second submission is that on the findings, recorded by the learned Sessions Judge, no offence of house- breaking was established against the appellants. Japte, a prosecution witness stated in his deposition that the fight rt took place in the lane, outside the house of Nek Ram, but according to the learned counsel, even if the fight had taken place inside the outer sehan, there could be no case of housebreaking, as it is admitted that the entrance to the sehan was open and there were no door leaves. A person is said to commit housebreaking under section 445 of the Penal Code, 1860 who commits house-trespass and if he affects his entrance into the house or any part of it, in any of the six ways mentioned in that section. The six ways in the sections are: If he enters or quits through a passage made by himself or by any abettor of the house trespass, in order to the committing of the house- trespass. There is no suggestion here that the accused made any passage through which they entered. If the case of the prosecution be true they walked into the sehan through an opening which was already there and which remains open all the time. Secondly, if he enters or quits through any passage not intended by any person, other than himself or any abettor of the offence, for human entrance or through any passage, to which he had obtained access, by scaling or climbing over any wall or building. Thirdly, if he enters or quits through any passage which he has opened in order to the committing of the house trespass., Fourthly if he enters or quits by opening any lock in order to the committing of the house ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 20 trespass, or in order to the quitting of the house after a house-trespass. Fifthly, if he affects his entrance or departure by using criminal force committing an assault, .
or by threatening any person with assault. Sixthly if he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house trespass. Learned Government Advocate at one time suggested that the case may come under the fifth head, but when it was pointed out to him that there was of no threat used at the time of entering the sehan and it is not alleged by the prosecution that the accused ever entered the room when the door was opened by Nek Ram, he had to concede that the offence of house-breaking as rt defined under section 445 was not completed. It was then suggested by the learned Government Advocate that if the accused could not be convicted under section 458 for house-breaking they could at least be convicted under section 448 for house trespass. Learned counsel appearing for the appellants, however, raised two objections. According to him the accused having been charged in the manner indicated above could not be convicted either under section 458 or 448 of the Penal Code, 1860, the ingredients of which offences were not the same as the ingredients of an offence under section
395. His other contention was that merely entering an open sehan like the one in question, in this case, was not entering a house. In support of his proposition, he cited three cases before me. One is a single-judge decision of this Court reported in Munshi v. Emperor [A.I.R. 1928 All.
607.] and two decisions of the Lahore High Court, reported in Sunder v. Emperor [(1919) 49 I.C. 864.] and Mul Chand v. Emperor [(1924) 84 I.C. 863.]. The word "house- trespass" is defined in section 442 of the Penal Code, 1860 as "criminal trespass by entering into or remaining in any building, tent, or vessel, used as a human dwelling". What is a building must always be a question of degree and circumstances, and it is therefore ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 21 impossible to lay down a general definition. In Moir v. William [[1892] 1 Q.B. 264.] Esher, M.R., said "ordinary and usual meaning of a building is a block of .
brick or stonework covered by a roof." If an open piece of land is surrounded by a wall it would probably be impossible to call it a building. In Indian houses generally, there is a courtyard which is not covered. It may be a matter of some difficulty in such cases to say that when a man commits criminal trespass and enters the courtyard of the house, he is not guilty of "house of trespass". Moreover, there may be cases where a man may be living in a house the roof of which has fallen down, but he has put up some sort of shelter inside within the boundaries. In such cases too it may be difficult to say rt that the man has not been guilty of "house-trespass"
simply because the roof of the house has fallen down. As I have already said, it would depend on the facts of each case whether the trespass has been committed of a "building" used for human dwelling so as to come within the definition of the word "house trespass". In the case before me, however, this was an outer sehan of the type mentioned in the case of Munshi v. Emperor. In that case, thorny bushes were placed around to fence the land off from the rest of the open space. In this case, it is not clear how the land was demarcated from another land, but there may have been some sort of a kacha boundary wall which had no doors or door leaves and to reach the rooms one had to pass through this outer sehan. "House trespass" is only an aggravated form of "criminal trespass" inasmuch as the legislature considered it proper to impose a more severe penalty for "house trespass" than for ordinary "criminal trespass". House- breaking is a more aggravated form of "criminal trespass' and the punishment under it is severer still. In a case like the present I do not consider that the accused could be convicted for "house-trespass" as they never entered any building in the sense in which the term is ordinarily used."
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 2220. Therefore, it is apparent from the judgments that in order to constitute the house, the disputed portion should, at .
least, be surrounded by the wall, so that it can be called to the part of the house. The site plan shows the open space between the kitchen and the house. No walls have been shown around it and it cannot be called to be part of the house. Learned Trial of Court had rightly held that no case of house trespass was made out because there was no entry into the building, tent or vessel.
rt
21. No person deposed that the vacant space was in possession of the informant. It was submitted that since it was between the kitchen and the house, an inference can be drawn that it was in possession of the informant. It is difficult to agree with this submission. The criminal cases cannot be decided on conjecture and surmises and in the absence of any statement by any of the witnesses that the land over which the incident had taken place was possessed by the informant, no case of criminal trespass is made out.
22. The incident had taken place at around 10:00 AM. The matter was reported to the Police by the Medical Officer at 3:45 PM. The place of incident is stated to be at a distance of 22 ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 23 Kilometers. Shyam Dutt (PW5) stated that his house falls on Shimla-Nahan Road. 15-20 buses ply on the road daily. There .
are telephones in the village and private jeeps also ply. This statement clearly shows that the place of the incident was located on the highway. The bus service was available. The matter could have been reported at the earliest but was not of reported. There is no explanation for the delay. It was laid down in Mehraj Singh v. State of U.P.(1994) 5 SCC 188 that the delay in rt lodging FIR leads to embellishments, concoction and fabrication, and therefore, the Court should see the prosecution case with utmost care and caution in case of delay. It was observed:
"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of the delay, the FIR not only gets bereft of the advantage of spontaneity, but danger also creeps in the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 24 checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late .
it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course, the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. The prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of a copy of of the FIR along with the dead body and its reference in the inquest report. Even though the inquest, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the rt details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report.
The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
23. This position was reiterated in P Rajagopal vs. State of Tamil Nadu 2019 (5) SCC 40, wherein it was observed:-
"12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of a concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 25 given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the .
accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1]."
24. Therefore, the prosecution case is to be seen with due care and caution keeping in view the delay in reporting the matter.
of
25. The medical examination of Promila Devi and Satya Devi was conducted on 15.09.2007 at 3:40-4:00 PM, whereas, rt the medical examination of Shyam Dutt was conducted on 15.09.2007 at 6:05 PM. Shyam Dutt stated in his cross-
examination that he went to the hospital after his mother and wife. His wife and mother went to the hospital on a bus, whereas, he went in a jeep. Satya Devi (PW5) stated that Shyam Dutt was unconscious on the spot; therefore, he came subsequently. Shyam Dutt was left on the spot in a state of unconsciousness.
26. The explanation given by these witnesses for the late examination of Shyam Dutt was rightly disbelieved by the learned Trial Court. It is difficult to believe that a person who was lying unconscious was not taken to the hospital and only the person, who had sustained lesser injuries was taken to the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 26 hospital. This is contrary to reasonable conduct and the learned Trial Court had rightly declined to place reliance on the same.
.
27. Promila Devi (PW1) admitted in her cross-
examination that the houses of Gopal and Jiya Lal are located towards the upper side of her house. The houses of Rattan Chand and Tulsi Ram are located towards the lower side. Sheela Devi of (PW2) also stated that the houses of Rattan Chand and Tulsi rt Ram were located near the house of Shyam Dutt. The houses of Jiya Lal and Gopal Singh were located towards the upper side.
Shyam Dutt (PW5) also made a similar statement.
28. Ashok Kumar (PW8) stated in his cross-examination that he had not associated Rattan Singh, Tulsi Ram and other villagers. He volunteered to say that no person resided in those houses. No person except him has deposed that no one was residing in the houses of Rattan Singh and Tulsi Ram; hence, the explanation given by the Investigating Officer is not acceptable.
He further stated that he had not made any enquiries from any person except the witnesses mentioned by him. This shows that the investigation was not fair and the Investigating Officer had only examined the witnesses produced by the informant. It was ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 27 laid down by the Hon'ble Supreme Court in Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385: 2010 SCC .
OnLine SC 480 that the investigation should be fair without a biased mind. It was observed at page 80:
199. It is not only the responsibility of the investigating agency but as well as that of the courts to ensure that the of investigation is fair and does not in any way hamper the freedom of an individual except in accordance with the law. Equally enforceable canon of the criminal law is that the high responsibility lies upon the investigating agency rt not to conduct an investigation in a tainted and unfair manner. The investigation should not prima facie be indicative of a biased mind and every effort should be made to bring the guilty to the law as nobody stands above the law dehors his position and influence in society.
200. In Kashmeri Devi v. Delhi Admn. [1988 Supp SCC 482:
1988 SCC (Cri) 864: JT (1988) 2 SC 293] It has been held that the record of investigation should not show that efforts are being made to protect and shield the guilty even where they are police officers and are alleged to have committed a barbaric offence/crime. The courts have even declined to accept the report submitted by the investigating officer where it is glaringly unfair and offends basic canons of the criminal investigation and jurisprudence. Contra veritatem lex nunquam aliquid permittit: implies a duty on the court to accept and accord its approval only to a report which is the result of faithful and fruitful investigation. The Court is not to accept the report which is contra legem but (sic) to conduct a judicious and fair investigation and submit a report in accordance with Section 173 of the Code which places a burden and obligation on the State Administration. The aim of criminal justice is two-fold. Severely punishing and really or sufficiently preventing the crime. Both these objects can be achieved only by fair investigation into the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 28 commission of the crime, sincerely proving the case of the prosecution before the court and the guilty is punished in accordance with the law.
.
201. Historically but consistently the view of this Court has been that an investigation must be fair and effective, must proceed in the proper direction in consonance with the ingredients of the offence and not in a haphazard manner. In some cases besides the investigation being effective the accused may have to prove miscarriage of justice but once it is shown the accused would be entitled of to definite benefit in accordance with the law. The investigation should be conducted in a manner so as to draw a just balance between citizens' rights under Articles 19 and 21 and the expansive power of the police to rt conduct the investigation. These well-established principles have been stated by this Court in Sasi Thomas v.
State [(2006) 12 SCC 421 : (2007) 2 SCC (Cri) 72], State (Inspector of Police) v. Surya Sankaram Karri [(2006) 7 SCC 172 : (2006) 3 SCC (Cri) 225] and T.T. Antony v. State of Kerala [(2001) 6 SCC 181: 2001 SCC (Cri) 1048].
202. In Nirmal Singh Kahlon v. State of Punjab [(2009) 1 SCC 441 : (2009) 1 SCC (Cri) 523] this Court specifically stated that a concept of fair investigation and fair trial are concomitant to the preservation of the fundamental right of the accused under Article 21 of the Constitution of India. We have referred to this concept of judicious and fair investigation as the right of the accused to fair defence emerges from this concept itself. The accused is not subjected to harassment, his right to defence is not unduly hampered and what he is entitled to receive in accordance with law is not denied to him contrary to law.
29. It was held in Manohar Lal Sharma v. Principal Secy., (2014) 2 SCC 532 : (2014) 4 SCC (Cri) 1: 2013 SCC OnLine SC 1120 that the police is bound to protect the life and liberty of the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 29 citizens and it must search for the truth. It was observed at page 553:
.
25. Lord Denning [The Due Process of Law, First Indian Reprint 1993, p. 102.] has described the role of the police thus:
"In safeguarding our freedoms, the police play a vital role. Society for its defence needs a well-led, well- trained and well-disciplined force of police whom it of can trust: and enough of them to be able to prevent crime before it happens, or if it does happen, to detect it and bring the accused to justice.
rt The police, of course, must act properly. They must obey the rules of right conduct. They must not extort confessions by threats or promises. They must not search a man's house without authority. They must not use more force than the occasion warrants."
26. One of the responsibilities of the police is the protection of the life, liberty and property of citizens. The investigation of offences is one of the important duties the police has to perform. The aim of investigation is ultimately to search for truth and bring the offender to the book.
30. This position was reiterated in Babubhai v. State of Gujarat [(2010) 12 SCC 254 : (2011) 1 SCC (Cri) 336] wherein it was observed at page 269:
32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that the investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 30 investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its .
genuineness. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth". (Vide R.P. Kapur v. State of Punjab [AIR 1960 SC 866: 1960 Cri LJ 1239], Jamuna Chaudhary v. State of Bihar [(1974) 3 SCC 774: 1974 SCC (Cri) 250: AIR 1974 SC 1822], SCC at p. 780, para 11 and Mahmood of v. State of U.P. [(1976) 1 SCC 542: 1976 SCC (Cri) 72: AIR 1976 SC 69] )
33. In State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222:
1992 SCC (Cri) 192] this Court has held as under : (SCC pp.
rt 263-65, paras 57, 59-61) "57. ... Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism. ...
Therefore, before countenancing such allegations of mala fides or bias it is the salutary and onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.
***
59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power. ...
60. ... The word personal liberty [under Article 21 of the Constitution] is of the widest amplitude covering a variety of rights which goes to constitute the personal liberty of a citizen. Its deprivation shall be only as per the procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 31 the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon personal liberty arbitrarily....
.
61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."
34. In Navinchandra N. Majithia v. State of Meghalaya [(2000) 8 SCC 323: 2000 SCC (Cri) 1510: AIR 2000 SC 3275] this Court considered a large number of its earlier of judgments to the effect that investigating agencies are guardians of the liberty of innocent citizens. Therefore, a heavy responsibility devolves on them of seeing that rt innocent persons are not charged on an irresponsible and false implication. There cannot be any kind of interference or influence on the investigating agency and no one should be put through the harassment of a criminal trial unless there are good and substantial reasons for holding it. CrPC does not recognise a private investigating agency, though there is no bar for any person to hire a private agency and get the matter investigated at his own risk and cost. But such an investigation cannot be treated as an investigation made under the law, nor can the evidence collected in such a private investigation be presented by the Public Prosecutor in any criminal trial. Therefore, this Court emphasised on independence of the investigating agency and deprecated any kind of interference observing as under : (SCC p. 329, paras 17-18) "17. The above discussion was made for emphasising the need for an official investigation to be totally extricated from any extraneous influence. ... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.
18. ... A vitiated investigation is the precursor for miscarriage of criminal justice."
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 32(emphasis added)
35. In Nirmal Singh Kahlon [(2009) 1 SCC 441 : (2009) 1 SCC (Cri) 523] this Court held that a concept of fair .
investigation and fair trial are concomitant to preservation of the fundamental right of the accused under the Article 21 of the Constitution of India."
31. Therefore, the investigating agency was bound to carry out a fair investigation but it failed to do so in the present of case.
32. It was specifically mentioned in the FIR (Ext. PA) that rt the informant and her mother-in-law rescued Shyam Dutt. The names of Sheela Devi and Bimla Devi were missing. The informant stated before the Court that somebody called her husband (Shyam Dutt) after which he went outside. The accused gave beatings to him (Shyam Dutt). When the informant and her mother-in-law tried to rescue him (Shyam Dutt), the accused also gave beatings to them. She has not stated before the Court that Sheela Devi and Bimla Devi were present who had rescued them.
33. Shyam Dutt (PW4) stated that the accused came outside the house and enquired about him (Shyam Dutt). He (Shyam Dutt) came outside and the accused gave beatings to him. His wife-Promila Devi and his mother came to the spot.
::: Downloaded on - 10/11/2023 20:30:54 :::CIS 33The accused also gave them beatings. The villagers also reached the spot. Again, he did not mention that Bimla Devi and Sheela .
Devi also came to the spot.
34. Satya Devi (PW5) stated that the accused gave beatings to Shyam Dutt. She went to the spot. She and Promila tried to rescue the accused and the accused gave them beatings.
of Sheela Devi, Bimla Devi and other villagers came to the spot. She rt has deposed about the presence of Sheela Devi and Bimla Devi but since their names were not mentioned in the FIR and by other witnesses, therefore, this part of her testimony cannot be accepted. Hence, there is a reasonable doubt regarding the presence of Sheela Devi and Bimla Devi and it is difficult to rely upon their testimonies.
35. The prosecution witnesses stated that the accused called Shyam Dutt outside the home and gave him beatings. No reason was assigned by him. It was suggested to the witnesses that Shyam Dutt had molested Kamla Devi-aunt of the accused-
one day before the incident but this was denied by Shyam Dutt and Promila Devi. Therefore, there was no reason for the ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 34 accused to give any beatings to the informant and this would caste a doubt on the prosecution's version.
.
36. Dr. Vinay Kumar (PW7) stated in his examination-
in-chief that the injuries were simple and grievous, which could have been caused by blunt trauma. It was not stated by him that the injuries could have been caused by kicks and fist blows.
of Hence, the medical evidence does not corroborate the version rt that the injuries could have been sustained by kicks and fist blows. On the other hand, he stated in his cross-examination that injuries can be caused by way of a fall and this is the only explanation available on record. This explanation will not corroborate the prosecution's version that injuries were caused by kicks and fist blows rather the same will contradict the prosecution's version.
37. The accused was alone and as per the prosecution, he had given beatings to three persons. It is not even shown that the victims had tried to defend themselves or cause any hurt to the accused in the incident. It is difficult to believe that the accused would single-handedly beat three persons and would ::: Downloaded on - 10/11/2023 20:30:54 :::CIS 35 not receive any injury himself. This aspect also casts doubt on the prosecution case.
.
38. Therefore, the prosecution case is highly suspect and learned Trial Court rightly refused to place reliance on the same.
The learned Trial Court had taken a reasonable view while extending a benefit of doubt to the accused and the judgment of passed by the learned Trial Court is sustainable.
Final Order rt
39. In view of the above, the present appeal fails and the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of.
(Rakesh Kainthla) Judge 6th , November, 2023 (saurav pathania) ::: Downloaded on - 10/11/2023 20:30:54 :::CIS