Delhi District Court
State vs . Uma Roy & Anr. on 29 November, 2019
IN THE COURT OF SHRI SANJAY SHARMAI :
ADDL. SESSIONS JUDGE - 05 (SHAHDARA DISTRICT)
KARKARDOOMA COURTS : DELHI
SC No. 611/2016
STATE Vs. Uma Roy & Anr.
FIR No. 248/2013
PS Jagatpuri
Under Section 325/451/459/506/34 IPC
State Versus 1. Uma Roy W/o Shri DP Roy
2. Ms. Lipika D/o Shri DP Roy
Both R/o K2098, CR Park, New Delhi.
Date of institution : 31.05.2014
Date of reserving judgment : 27.11.2019
Date of judgment : 29.11.2019
JUDGMENT:
The present case was registered on the statement of complainant Shri Arvind Kumar Aggarwal. In his complaint made to SHO PS Jagatpuri dated 18.05.13, he alleged that he was employed in LIC and had taken a loan of Rs. 3 lacs from accused Uma Roy at an interest of 2% and has already returned a sum of Rs. 2 lacs to her. However, Rs. 1 lac and interest still remain to be paid. He further alleged that when he had taken the said loan, he had signed on blank stamp paper for the preparation of an agreement which were misused by the said accused and she wrote a sum of Rs. 15,40,000/ as due upon him.
2. It has further been alleged in the said complaint that on 17.05.13 at about 10.30 pm, one person with her daughter accused Lipika Roy came to his house, entered therein, and started beating him. He also SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 1 of 7 alleged that accused Uma Roy and her daughter Lipika gave a blow with a wooden 'thapki' (mallet) resulting into fracture of his two fingers. His wife called the PCR. He also explained that since he was having pain in his hand and also since the said accused had threatened to eliminate his family if he failed to return their money, he got frightened and had refused for medical examination at that time and that now he has come to the PS and wanted action against the two accused.
3. On the basis of the said complaint, the present case was registered for the offence punishable u/s 323/451/506/34 IPC. After conclusion of investigation, the charge sheet was filed in the court of Ld. ACMM for the offences punishable u/s 325/451/506/34 IPC, since the injury on the person of the complainant was opined to be grievous. On 19.11.14, the Ld. ACMM gave a finding that from the allegations contained in the chargesheet, an offence u/s 459 IPC is also made out and accordingly, committed the case to this court since the said offence is exclusively triable by the Sessions Court.
4. Copies were already supplied to the accused persons as required under Section 207 Cr. PC. After hearing arguments, charge for the offence punishable under Section 451/325/459/506/34 IPC was framed against both the accused vide order dt. 20.12.14.
5. At the trial, the prosecution examined seven witnesses.
PW1 HC Dinesh Kumar was the Duty Officer who recorded the present FIR and proved it as Ex. PW1/A, endorsement on the rukka as Ex. PW1/B as also DD entry no. 45A dated 17.05.13 as Ex. PW1/C. PW2 W/Ct. Foranti was the witness to the arrest of the two accused and proved their arrest documents as Ex. PW2/A to D. SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 2 of 7 PW3 Arvind Kumar Aggarwal was the complainant/injured and he deposed the facts of the case and proved his complaint as Ex. PW3/A as also the site plan as Ex. PW3/B. PW4 ASI Naresh Singh had handed over the copy of FIR to the IO. PW5 Dr. Virender proved the MLC of complainant as Ex. PW5/A. PW6 Dr. Vishal Gupta proved the final opinion of injury on the MLC of injured as Ex. PW6/A. PW7 Retd. ASI Sahab Singh was the IO who proved the investigation conducted by him as also various documents prepared by him during investigation and the fact of recording of statement of the witnesses.
6. Statement of the two accused were recorded u/s 313 Cr.PC.
The accused led evidence in defence. Accused Uma Roy examined herself as DW1 who deposed that the complainant was not paying the loan amount and as such, she went to the house of the accused to demand the same on which a verbal altercation took place. Police was called and all loan documents were shown to them. She also deposed that she had also lodged DD entry no. 45A on 17.05.13 but no action was taken upon it. She further deposed that she had lodged a complaint case in the court of Ld. MM at Saket upon which FIR NO. 118/14 of PS Chitranjan Park was registered. She proved the certified copy of the order dated 23.08.18 as Ex. DW1/1, copy of FIR no. 118/14 as Ex. DW1/2 and copy of FSL result dated 12.06.15 as Ex. DW1/3. Thereafter, she closed her defence evidence.
7. I have heard Shri Mukul Kumar, Ld. Addl. PP for the State and Shri RK Jain, Ld. Counsel for both the accused and have carefully SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 3 of 7 gone through the records of this case.
8. The accused were charged for the offences punishable u/s 325/451/459/506/34 IPC. When the case reached the stage of final arguments, an application was filed by the complainant Arvind Kumar Aggarwal u/s 320 Cr.PC wherein it was stated that he had amicably settled the dispute with the two accused and hence, prayed for compounding the offences punishable u/s 325/451/506/34 IPC. The application was allowed and upon recording the statement of the complainant, vide order dated 27.11.19, the said offences were permitted to be compounded with the accused and the complainant compounded the said offences with the accused. Both the accused were accordingly acquitted for the said offences. Hence, the only charge which remains against the accused is that u/s 459/34 IPC.
9. Section 459 IPC reads as under: "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"
In light of the above, it is to be seen whether the accused had committed any lurking house trespass or house breaking in the house of the complainant and for that purpose, the definitions of lurking house trespass and house breaking have to be appreciated.
10. Lurking house trespass has been defined in Section 443 IPC as "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 subject of the SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 4 of 7 trespass, is said to commit 'lurking house trespass'."
Section 445 IPC defines house breaking as "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 First: If he enters or quits through a passage by himself, or by any abettor of the housetrespass, in order to the committing of the housetrespass.
Secondly: If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly: If he enters or quits through any passage which he or any abettor of the housetrespass has opened, in order to the committing of the housetrespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly: If he enters or quits by opening any lock in order to the committing of the housetrespass, or in order to the quitting of the house after a housetrespass.
Fifthly: If he effects his entrance or departure by using criminal force or 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 SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 5 of 7 unfastened by himself or by an abettor of the housetrespass.'
11. The complainant in his complaint Ex. PW3/A has himself alleged that he had taken a loan from the accused which means that the accused were well known to him. He further alleged that one person and her daughter Lipika entered his house. In his deposition before the court, he deposed that on 17.05.13 at about 10.30 am, when he was present in his house with his wife and son Rachit, one unknown person knocked the door and he opened it and found both the accused standing outside the door. He further deposed that immediately after entering his house, they started shouting 'mere paise lautao' and started beating him.
12. These facts have a relevance to the charge u/s 459 IPC. They show that none of the accused tried to conceal their entry into the house of the complainant and had knocked the door to gain entry in a proper manner. Since the accused were already known to the complainant, it cannot be expected that the complainant resisted their entry nor it is alleged that the accused had forced their entry into the house of the complainant. Thus, the act of the accused, as alleged, does not fall in the definition of lurking house trespass or within the definition of house breaking as quoted herein above.
13. It is also to be noted that in the complaint, the complainant alleged that one person with Lipika Roy came to his house, while in his deposition as PW3, he deposed that both the accused were standing in front of the door when he opened it. In his cross examination, he admitted that he had stated in his complaint that one unknown person knocked the door. PW3 failed to explain the identity of that unknown person. He also deposed before the court that his son Rachit and his wife were also SC No. 611/16 FIR No.248/2013 State Vs. Uma Roy etc. PS Jagatpuri 6 of 7 present in the house at that time which fact was never stated by him in his complaint Ex. PW3/A and was duly confronted with it. Admittedly, the wife and son of the complainant have not been cited or examined as witnesses.
14. Considering the improvements and contradictions regarding the manner of the accused coming to the house of the complainant as also the legal aspect of the matter as discussed above and even as per the unrebutted allegations regarding the entry of the accused into his house, the offence u/s 459 IPC is not made out against the accused and the two accused namely Uma Roy and Lipika Roy are hereby acquitted of the said offence punishable u/s 459 IPC read with Section 34 IPC. They are set at liberty. Their personal bonds and surety bonds are discharged.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT
ON 29th day of November 2019
(SANJAY SHARMAI)
Digitally signed by Addl. Sessions Judge05 (Shahdara)
SANJAY SANJAY SHARMA
Location: Delhi
Karkardooma Courts, Delhi
SHARMA Date: 2019.11.29
16:18:10 +0530
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