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2011 DIGILAW 252 (CHH)

LALIT KUMAR v. STATE OF C. G.

2011-07-28

SUNIL KUMAR SINHA

body2011
ORDER 1. This revision is directed against the judgment dated 11th of July, 2002 passed in Criminal Appeal No. 62/2001 by the Additional Session Judge, Dhamtari. The said appeal was filed against the judgment & order dated 17.10.2001 passed in Criminal Case No.1 074/99 by the Chief Judicial Magistrate, Dhamtari, by which, the applicant was convicted u/s 456 IPC and sentenced to undergo R.I. for 6 months and to pay tine of Rs. 1,000/-. The conviction and sentences awarded to the applicant have been confirmed in Appeal. 2. The case of the prosecution is that on 15.11.99 at about 10.30 p.m., the applicant entered into the courtyard of the house of complainant- Motim Bai (PW-1) and knocked the door of her room and thereby committed an offence of lurking house-trespass by night. According to the prosecution, the applicant after crossing the courtyard of the house came in front of the door )f the room of the complainant and knocked the door. Complainant woke up and asked as to who is knocking the door. The applicant did not reply and he again knocked the door. When it was again asked by the complainant, the applicant replied that "I am Lalit". The daughter of the complainant namely Ku. Damin (PW2) and her friend- Neeta came by that time and saw the applicant standing near the door of the room. The above act of the applicant was taken seriously and ultimately on 18.11.99 at about 14.00 hours, the First Information Report (Ex.-P/I) was lodged by complainant- Motim Bai (PW-1). 3. The learned courts below held that since the applicant had entered into courtyard of the house of the complainant and was knocking the door of the room therefore, he was liable for punishment u/s 456 IPC. 4. Ms. Savita Punjabi, learned counsel appearing on behalf of the applicant, argued that there is no evidence to show that the applicant entered into the house of the complainant; according to the prosecution, the applicant was standing in front of the door of the house of the complainant; though there are allegations that he climbed over the boundary wall, but the allegations have not been substantiate by the evidence because at the time when the daughter of the complainant and friend of her daughter came to the house, the door of the courtyard was already open. She also argued that this appears to be a case of close intimacy between the complainant and the applicant and the matter took a serious turn when the daughter of the complainant and her friend namely- Neeta observed the applicant in front of the door of the room of the complainant. 5. On the other hand, Mr. Satish Gupta, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgments passed by the courts below. 6. 1 have heard learned counsel for the parties at length and have also perused records of the courts below. 7. Motim Bai (PW-1) deposed that in the fateful night at about 1010.30 p.m., she was sleeping in her room. The door of the room was bolted from inside. Her daughter- Ku. Damin (PW-2) had gone to watch television. When she heard noise of knocking the door, she woke up. She thought that her daughter would have come back. She asked from inside the room as to who is there? Nobody replied at once, but after sometime the applicant replied "1 am Lalit". Exactly at the same time Ku. Damin (PW-2) and her friend Neeta came there. They saw that the applicant was standing in the verandah by the side of the wall. She admitted to lodge the report after 2 or 3 days of the incident. 8. Ku. Damin (PW -2) deposed that when she came back to her house at about 10.30 p.m. along with Neeta after watching TV, she saw that the applicant was standing in the verandah of their house. She denied in the cross-examination that the applicant was called by her mother. In appreciation, we find that there was a small boundary of the house having a door. The applicant was found standing in front of the room of the complainant. When the applicant knocked the door of the room of the complainant, the complainant asked from inside about identity. On which, the applicant replied in clear words that “I am Lalit". Ku. Damin (PW-2) came at once. She was accompanied by her friend. They saw the applicant standing in the verandah. 9. Lurking house-trespass or house-breaking is ordinarily punishable u/s 453; but when it is committed at night, Section 456 comes into play. On which, the applicant replied in clear words that “I am Lalit". Ku. Damin (PW-2) came at once. She was accompanied by her friend. They saw the applicant standing in the verandah. 9. Lurking house-trespass or house-breaking is ordinarily punishable u/s 453; but when it is committed at night, Section 456 comes into play. The intent necessary to prove 'criminal trespass' must be present in such cases and the court must come to a definite inference as to the intention with which the entry was effected. If a definite inference as to what was the particular intention with which the entry was effected could not have been drawn, a court would not be justified in conjecturing as to what the intention might have been. 10. In the instant case, there is no definite finding as to intention of the applicant. The applicant was found in the verandah of the house of the complainant at an odd time, therefore, mere presence in the house of the complainant would not constitute an offence u/s 456 IPC. In fact, there is no evidence to show that the applicant went to the house of the complainant with ulterior motive and intention, and the same cannot be attributed to the applicant. 11. For the foregoing reasons, I am unable to sustain the conviction of the applicant on the above set of evidence and the judgments passed by the 2 courts deserve to be set-aside. 12. Accordingly, the revision is allowed. The conviction and sentences awarded to the applicant u/s 456 IPC are set-aside. The applicant is acquitted of the charges framed against him. It is stated that the applicant is on bail. His bail bonds are cancelled and surety stands discharged. Revision Allowed.