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2000 DIGILAW 1075 (RAJ)

Sadul Singh v. The State of Rajasthan

2000-08-24

SUNIL KUMAR GARG

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JUDGMENT 1. - This is an appeal on behalf of the accused-appellants against the judgment and order dated 25.3.1983 passed by the learned Sessions Judge, Bikaner in Sessions Case No. 69/81 by which he convicted each accused-appellant under section 459 IPC and sentenced each of them to undergo one year Rigorous Imprisonment. 2. It arises in the following circumstances:- On 16.9.1979 at about 9.00 a.m., PW 6 Meghraj lodged an oral report Ex.P/8 in the Police Station Gajner District Bikaner stating inter alia that he has been working as Munim with the Contractor Dayakisan in the village Guda for the last one and half year. Before one month, a dispute arose between him and accused-appellant-Sadul Singh over a watch and since then he and his men had enmity with him. On 15.9.1979 at about 9.00 p.m. he reached the village Guda where there is a house of Contractor Dayakishan, in which, PW 2 Tolaram was living as a tenant and after taking food he slept over the roof of that house. At that time, PW 3 Khemaram and PW 7 Leelsingh were also sleeping with him. At about 12.00 in the midnight, somebody called him then he asked, who is there. Then, at about 3.00 a.m. when he was slipping on the roof, he was beaten by somebody on his head, then he woke up and saw that accused-Sadul Singh, Safi Khan and Choriya, who were having lathies in their hands, were beating him. When he got up he was caught hold by accused-Sadul Singh and rest of the accused-appellants beat him severely. He and PW 7 Leelsingh made hue and cry, then PW 3 Khemaram went there and called PW 4 Purkharam. Thereafter, all accused- appellants ran away after jumping over from the roof. On this report, police registered the case and startled investigation. PW 6 Meghraj was got medically examined and his injury report is Ex.P/7, which shows that he received 22 injuries on his person and his X-ray report is Ex.P/2, which shows that he received fracture of proximal phalanx of left little finger. After usual investigation, police submitted challan against accused-appellants in the Court of Magistrate and thereafter, the case was committed to the Court of Sessions. On 11.3.1982, the learned Sessions Judge, Bikaner framed charge under section 459 IPC against the accused-appellants, who pleaded not guilty and claimed trial. After usual investigation, police submitted challan against accused-appellants in the Court of Magistrate and thereafter, the case was committed to the Court of Sessions. On 11.3.1982, the learned Sessions Judge, Bikaner framed charge under section 459 IPC against the accused-appellants, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as ten witnesses and got exhibited some documents. Thereafter, the statements of accused-appellants under section 313 Cr.P.C. were recorded and one witness was produced in defence by accused-appellants. After recording evidence and conclusion of trial, the learned Sessions Judge, Bikaner came to the conclusion that accused-appellants have committed the offence under section 459 IPC and thus, vide his judgment and order dated 25.3.1983, the learned Sessions Judge, Bikaner convicted and sentenced each accused-appellant in the manner stated above. Against the said judgment and order dated 25.3.1983 passed by the learned Sessions Judge, Bikaner, the present appeal has been filed by the accused-appellants. 3. In this appeal, the following submissions have been made by the learned counsel for the accused-appellants:- 1. That in the present case, it has not been established by the prosecution as to who caused grievous injury on the person of PW 6 Meghraj out of three accused-appellants, therefore, in absence of the charge under section 34 IPC, they could not have been convicted under section 459 IPC. 2. That roof of the house does not amount to entry into the building and thus, no case for the offence under section 459 IPC is made out. Hence, conviction and sentence passed against the accused-appellants are liable to be set aside. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Sessions Judge, Bikaner. 5. I have heard the learned counsel for the accused-appellants and the learned Public Prosecutor and perused the record of the case. 6. Without discussing much evidence in the present case, it may be stated here that so far as injury report Ex.P/7 of PW 6 Meghraj is concerned, the same stands proved by the statement of PW 5 Dr. Narsingh and from which it can be said that PW 6 Meghraj has received as many as 22 injuries on his person. From the statement of PW 1 Dr. Mahesh Chandra, it is further proved that PW 6 Meghraj received fracture of proximal phalanx of left little finger. 7. Narsingh and from which it can be said that PW 6 Meghraj has received as many as 22 injuries on his person. From the statement of PW 1 Dr. Mahesh Chandra, it is further proved that PW 6 Meghraj received fracture of proximal phalanx of left little finger. 7. So far as the fact that incident took place on the roof of the house is concerned, there is no dispute on this point and it is also not in dispute in the present case that from the statements of PW 6 Meghraj and PW 7 Leelsingh, it is knot established who has caused grievous injury on the person PW 6 Meghraj. 8. The most important question that arises for consideration in the present case is whether conviction of the accused-appellants under section 459 IPC can be sustained or not, when the incident took place on the roof of the house. 9. For proving the offence under section 459 IPC, the prosecution has to prove the following three ingredients:- 1. The accused committed lurking house-trespass or house breaking, 2. The accused caused grievous hurt, or attempted to cause death or grievous hurt to some persons, 3. He did so while he was engaged in committing lurking house-trespass or house breaking. 10. In all lurking house-trespass or for that matter in house breaking, there must be house-trespass, which requires entry into or remaining in a building, therefore, it follows that if the entry was upon the terrace or roof of a house, a person could not be convicted for committing the house trespass and lurking house trespass, though it might be of criminal trespass punishable under section 4571PC. In support of this, the decision of the Hon'ble Allahabad High Court in Hira Lal & Anr. v. The State, 1951 A.L.J. 461 , where the following proposition of law has been laid down: "Going on to the roof of a house does not amount to entry into a building. In case covered by Section 442 of the Penal Code the entry must be into the building or remaining in the building. The person who is on the roof of a building cannot be said to be in the building." 11. From the above ruling, it becomes clear that going on the roof of a house does not amount to entry into a building. 12. The person who is on the roof of a building cannot be said to be in the building." 11. From the above ruling, it becomes clear that going on the roof of a house does not amount to entry into a building. 12. Therefore, it is held that the person who is on the roof of a building cannot be said to be in the building and thus, conviction of the accused-appellants under section 459 IPC cannot be sustained. The accused-appellants would be guilty for the simple offence of criminal trespass punishable under section 447IPC. It has also not been established by the prosecution which accused-appellant caused grievous hurt to PW 6 Meghraj and thus, second ingredient of Sec.. 459 IPC has also not been proved by the prosecution. 13. Thus, the conviction of the accused-appellants under section 459 IPC cannot be sustained, but their conviction is liable to be altered from Sections 459 IPC to 447 IPC.Point of sentence : 14. It may be stated here that in the present case, incident took place on 16.9.1979 and more than 20 years have elapsed and it would be of no use to send accused-appellants now to jail. Thus in these circumstances, they should be released under the provisions of Probation of Offenders Act, 1958. However, some compensation should be allowed to be paid to PW 6 Meghraj from the accused-appellants.In the result : 1. The appeal of the accused-appellants-Sadul Singh, Safi Khan and Choriya is partly allowed and the judgment dated 25.3.1983 passed by the learned Sessions Judge, Bikaner is modified to the extent that accused-appellants are convicted under section 447 IPC instead of 459 IPC. The order of sentence dated 25.3.1983 passed by the learned Sessions Judge, Bikaner for the offence under section 459 IPC is set aside. 2. However, instead of sentencing them for the offence under section 447 IPC, I would direct that accused-appellants-Sadul Singh, Safi Khan and Choriya be released on probation under section 4 of the Probation of Of-fenders Act, 1958 provided each of them executes a personal bond in the sum of Rs. 1,000/- (Rs. one thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Bikaner within a period of two months from today to keep piece and be of good behaviour for a period of one year. 3. 1,000/- (Rs. one thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Bikaner within a period of two months from today to keep piece and be of good behaviour for a period of one year. 3. It is further directed that each accused-appellant shall pay Rs. 2,000/- as compensation to PW 6 Meghraj and for depositing the said amount, three months' time is given to them. On depositing the said amount by the accused-appellants, the same be given to PW 6 Meghraj. Appeal partly allowed. *******