Rajasthan High Court - Jodhpur
Inder Puri vs State Of Rajasthan on 13 February, 2020
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 205/2020
1. Inder Puri S/o Shri Pukhraj Puri, Aged About 48 Years, By
Caste Goswami, R/o Lakhaham Puri Math, Sadri, Pali
306702
2. Shiv Puri S/o Shri Pukhraj Puri, Aged About 45 Years, By
Caste Goswami, R/o Lakhaham Puri Math, Sadri, Pali
306702
3. Mahendra Puri S/o Shri Shiv Puri, Aged About 38 Years,
By Caste Goswami, R/o Lakhaham Puri Math, Sadri, Pali
306702
4. Pramod Puri S/o Shri Shiv Puri, Aged About 41 Years, By
Caste Goswami, R/o Lakhaham Puri Math, Sadri, Pali
306702
----Petitioners
Versus
1. State Of Rajasthan, Through P.p.
2. Smt. Sumitra Goswami D/o Shri Jethpuri, R/o Lakhaham
Puri Math, Sadri, Pali 306702
----Respondents
For Petitioner(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Mukhtiyar Khan, P.P.
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 13/02/2020 Instant revision petition has been filed by the petitioner against the order dated 20.01.2020 passed by learned Additional Sessions Judge, Bali in Sessions Case NO. 69/2016 whereby charges have been framed for offence under Section 323, 458, 459, 354, 325/34 IPC.
Brief facts of the case are that on 13.05.2016, an FIR was lodged by complainant Smt. Sumitra Goswami alleging that on (Downloaded on 18/02/2020 at 08:39:52 PM) (2 of 10) [CRLR-205/2020] 12.05.2016 at about 9 PM in the night, while she was having dinner with her son at home, at that time accused persons armed with lathis, Koont, Kudala, and spade came and caught hold her hair braid and after dragging her started beating while sitting on chest. It is alleged that when the son of complainant intervened the accused persons then they gave beating to him also. Upon raising hue and cry, the accused persons ran away. It was alleged that the accused persons tried to kill her and her son and while entering into her home tried to outrage her modesty.
On this report, the police registered an FIR for offence under under Section 143,452, 323 and 354 IPC and commenced investigation.
After usual investigation, the police filed a challan against the petitioner for aforesaid offences. Thereafter, arguments upon charge were heard and by way of impugned order dated 20.01.2020, charges were framed by the trial court against the petitioners for offence under Sections 323, 458, 459, 354, 325/34 IPC. Hence, this revision petition.
Learned counsel for the petitioner mainly contended that mere fact that the house trespass was committed in the night does not make the offence of lurking house-trespass. It is argued that since there was no concealment of presence, therefore, offence under Section 458 IPC is not made out against the petitioners. It is further argued that since the grievous hurt was not in the course of the commission of lurking house, trespass or house-breaking, the petitioners are not liable to be charged under Section 459 IPC either. Learned counsel for the petitioners placed (Downloaded on 18/02/2020 at 08:39:52 PM) (3 of 10) [CRLR-205/2020] reliance on judgments reported in 1982 Crl.L.J 2162 'Bijoy Kumar Mohapatra and others vs State', 2012 (2) Cr.L.R 809 'Balwant Singh & Ors. vs State of Rajasthan', 1998 (1) RCD 447 'Dharam Pal Singh & anr. v.s State Of Rajasthan', 2008 (3) RCD 1 'Dharmendra alias Phusa Ram vs State of Rajasthan', 1999 (1) RCD 458 'State Of Rajasthan v.s Baisakha Singh and ors', 2001 (1) RCD 284 (Raj.) Sadul Singh & ors. v.s state of Rajasthan.
Per contra, learned Public Prosecutor supported the order passed by the learned Trial Court and argued that the police after thorough investigation submitted challan against the petitioners and the trial court after going through the entire record, has framed charges against the petitioners. Therefore, the order of framing charge passed by the learned Court below does not suffer from any infirmity and all other questions raised in regard to the present case are to be considered by the learned Trial Court at the appropriate stage.
I have thoughtfully considered the arguments advanced on behalf of the parties and perused the material available on record.
'Lurking house trespass' and 'house breaking' are aggravated forms of house trespass. 'House-breaking' consists of entering into a house by an opening other than the ordinary or by force. Both these offences are punishable under Section 453, Penal Code, to 2 years' imprisonment. Then again the gravity of 'lurking house trespass' or 'house breaking' is aggravated by reference to the purpose for which it is committed. If it is committed for the commission of an offence punishable with imprisonment it is punishable by three years and if theft is intended it is 10 years. If (Downloaded on 18/02/2020 at 08:39:52 PM) (4 of 10) [CRLR-205/2020] it is committed with the intention of causing hurt or assault or wrongful restraint or fear thereof, it is punishable by 10 years.
Lurking house trespass or house-breaking have another aggravated variation if it is committed between sun set and sun rise. If lurking house trespass and house breaking by night are committed after having made preparation for causing hurt or assault or wrongful restraint or patting any person into fear then the punishment provided is 14 years which is under Section 458 IPC.
Section 458 IPC reads as under :-
458. 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.
Similarly Section 459 IPC reads as under :-
459. Grievous hurt caused whilst committing lurking house trespass or house-breaking.--Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Thus, in order to prove the charge for the offence under Section 458 IPC, the prosecution must prove :- (Downloaded on 18/02/2020 at 08:39:52 PM)
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(i) that the accused committed lurking house- trespass by night, or house-breaking by night;
(ii) that he did as above after having made preparation for causing hurt, or for assaulting, or for wrongfully restraining some person, or for putting some one in fear of hurt, assault or wrongful restraint.
In the present case, the complainant Smt. Sumitra has categorically stated that the accused persons with common intention forcefully broke into her house in the night and attacked her and her son. According to Section 443 IPC when any person 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". From the evidence, it is also clear that the petitioners had no right whatsoever to enter into the house of the complainant and they were armed with lathies and other weapons. Thus, the accused petitioners entered into the house of complainant after making preparation for causing injuries to her and her son. Therefore, the charge for offence under Section 458 IPC is made out against the petitioners. So far as the judgments relied upon by the learned counsel with regard to concealment of presence is concerned, the same does not help the petitioners in any manner at this stage, as it is a matter of evidence during the trial.
So far as the charge for offence under Section 459 IPC is concerned, as per this provision whoever, whilst committing (Downloaded on 18/02/2020 at 08:39:52 PM) (6 of 10) [CRLR-205/2020] lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The word 'whilst' according to the Oxford English Dictionary means "during that time; meanwhile.". For applying the words "whilst committing house, breaking by night", it is necessary to show that the attempt was made in the period during which the offence of house-breaking (which involves house-trespass) was being committed. It is not sufficient to show that the attack was made after the house-trespass had ceased. In the present case, after criminal trespass, the petitioners caused grievous hurt to the complainant. Therefore, in the opinion of this Court, during the period the house-breaking lasts if the trespasser causes grievous hurt to any person or attempts to cause death or grievous hurt the provisions of Section 459 of the Penal Code will be attracted. Thus, in the process of making an entry into a house if the trespasser causes grievous hurt Section 459, Penal Code is attracted which is not in the present case.
Delhi High Court in the case of Suraj Giri & Ors Vs. State (S.b. Criminal Appeal No. 141, 565 and 638/2017) decided on 11.10.2017 while dealing with Section 459 IPC held as under :-
"13. In Said Ahmed's case (Supra) relied upon by learned counsel for the appellants the offence of house breaking was held to be complete when entry into the house is effected. It was also held that any grievous hurt caused after breaking into the house would not amount to causing grievous hurt (Downloaded on 18/02/2020 at 08:39:52 PM) (7 of 10) [CRLR-205/2020] while committing the lurking house trespass within the meaning of Section 459 IPC. This Court has taken a similar view in the decision reported as Rohtas v. State, 1987 (1) Crimes 576 Delhi. In the above noted case, the occurrence had taken place at about 1.30 a.m. on the night intervening 8th/9th February, 1979 at the house of the complainant where he along with his wife was sleeping at his house. The injuries were caused to the complainant and his wife with a 'mussal' picked from the room. The appellant Rohtas was convicted for committing the offence punishable under Section 459 IPC. In appeal the conviction under Section 459 IPC was challenged on the ground that to attract the provision of Section 459 IPC the attempt to cause grievous hurt or an attempt to cause death or grievous hurt to any person must be done in the course of commission of offence of lurking house trespass or house breaking. While accepting the submission made on behalf of the appellant in para No. 7 of the report it was held as under:-
"7. There is much substance in the contention of learned counsel for the appellant. In order to attract the provisions of Section 459, the causing of grievous hurt or the attempt to cause death or grievous hurt must be done in the course of the commission of the offence of lurking trespass or house breaking. It is not sufficient that the grievous hurt was caused or the attempt made after the completion of lurking trespass or house trespass. The offence of house breaking is complete when the entry into the house is effected, and grievous hurt caused subsequently cannot be said to be caused "whilst committing" the trespass. However, the fact remains that the accused committed house trespass by entering into the building which was being used by Tara Chand as a dwelling place. The mere fact that the accused entered the house and committed assault on Tara Chand and his wife does not necessarily pre-suppose preparation. In fact, there is (Downloaded on 18/02/2020 at 08:39:52 PM) (8 of 10) [CRLR-205/2020] no clear proof of preparation for causing hurt etc. All these facts taken together will bring the case within the four corner of Section 452 IPC. I, therefore, alter the conviction of the accused from one under Section 459 to the one under Section 452 IPC."
14. Reverting to the facts of the instant case, from the statement of the complainant/injured (PW-1) it is proved that the hurt was caused by the appellant not in the process of committing lurking house trespass. The offence of lurking house trespass was complete once they entered into the dwelling unit of the complainant. The injuries subsequently caused by the appellant after breaking into his house do not satisfy the requirement of section 459 IPC as held in Said Ahmed's case (Supra) and by this court in Rohtas's case. Since the grievous hurt has been caused after committing the lurking house trespass, the offence proved against the appellants would be under Section 457/34 IPC and not under Section 459/34 IPC."
In view of above, I am of the opinion that although prima facie charge under Section 458 IPC is made out against the petitioners but charge under Section 459 IPC is not made out against the petitioners and the petitioners are liable to be discharged from the offence under Section 459 IPC. So far as the judgments relied upon by the petitioners with regard to Section 458 IPC are concerned, the judgment in the case of Balwant Singh (Supra) does not help the petitioners as in the said case the incident took place at an open place, therefore, the accused were discharged of offence under Section 458 IPC. In the case of Bijoy Kumar Mohapatra (supra), the accused were discharged of offence under Section 458 IPC as the accused persons had openly (Downloaded on 18/02/2020 at 08:39:52 PM) (9 of 10) [CRLR-205/2020] committed house trespass with common intention and there was no evidence that they concealed their presence. Thus, the cases relied upon by the counsel for the petitioners are clearly distinguishable and does not help the petitioners.
Further, it is settled law that at the time of framing the charges, the truth, veracity and the effect of the evidence, which the prosecution proposes to produce are not to be meticulously examined. At this stage, the Court only has to see whether the unrebutted evidence, which the prosecution is to adduce, makes way for conviction and if it is so then the charge can be framed. But if the evidence itself does not disclose that the accused has committed the offence, then the charge should not be framed. The Court, while framing the charges, is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom disclose the presence of all the ingredients constituting the alleged offence.
In view of above, this Court is of the opinion that trial court has not committed any error in framing charge for offence under Section 323, 458, 354, 325/34 IPC against the petitioners. However, the charge for offence under Section 459 IPC is not made out against the petitioners and petitioners are discharged of offence under Section 459 IPC.
Accordingly, the revision petition is partly allowed. The impugned order dated 20.01.2020 is quashed and set aside to the extent of framing charge under Section 459 IPC against the petitioners. The trial court is directed to proceed with the trial against the petitioners for rest of the offences. (Downloaded on 18/02/2020 at 08:39:52 PM)
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The stay petition also stands disposed of.
(MANOJ KUMAR GARG),J
160-BJSH/-
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