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2012 DIGILAW 203 (GAU)

Malay Das v. State of Tripura

2012-02-14

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This criminal appeal under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 28.07.2004, passed by learned Addl. Sessions Judge, Khowai, in S.T.-14(WT/K) of 2003. The learned Addl. Sessions Judge found the appellant, Malay Das guilty of committing offence punishable under 457 of IPC, and sentenced him to suffer RI for two years and to pay a fine of Rs. 1,000/-, in default of payment of fine, to suffer SI for three months. 2. Heard learned counsel, Mr. S. Lodh, appearing for the appellant and learned Spl. P.P., Mr. R.C. Debnath, appearing for the State respondent. 3. In a short compass, prosecution case was that on 12.09.2002 at about 11.30 p.m., the informant (prosecutrix) (name kept withheld) with her child was sleeping in her hut and her husband Ranjit Nama Sen and father-in-law, Debendra Nama Sen went to catch fish in Khowai river, adjacent to their house and at that relevant point of time, the accused-appellant Malay Das, trespassed into the hut and jumped on the informant and made an attempt to commit rape on her. She scuffled with the accused but could not raise cry as the accused gagged her mouth. Her minor child cried out, and hearing the cries, her husband and father-in-law rushed to the house from the river, and sensing their arrival, the accused went out and while was fleeing away, Ranjit Nama Sen tried to detain the accused but the accused dealt a blow on his face and fled away. Debendra Nama Sen also tried to detain the accused but he was pushed down. They raised cry and neighbourers came and reported the incident. Thereafter, on that night itself they went to the village Pradhan, Mamata Acharjee and reported the incident to her, who assured them to settle the matter on the following morning but she did nothing, and thereafter, on 14.09.2002 at 19.35 hrs., on being advised by other local people, the victim woman (prosecutrix) lodged the FIR with the Officer In-Charge, Khowai P.S., narrating the occurrence, and accordingly, police registered the case under Sections 457/376 read with Section 511 of IPC and on investigation submitted charge sheet against the accused, Malay Das for commission of offence under the said sections. Considering the charge sheet, cognizance was taken and the case was committed to the court of learned Addl. Considering the charge sheet, cognizance was taken and the case was committed to the court of learned Addl. Session Judge, Khowai, who in course of trial, considering the evidence and materials on record, framed the following charges against the accused, to which he pleaded not guilty and claimed to be tried: Firstly, that you on 12.09.02 at about 2400 hrs. at Purba Ramchandraghat under Khowai Police Station committed the offence of lurking house trespass by night by entering into the dwelling hut of Smti. Sabitri Nama Sen(victim) for the purpose of committing rape on her and you thus committed an offence punishable U/s. 457 of the Indian Penal Code and within my cognizance. Secondly, you on the same date, time and place attempted to commit offence of rape in such attempt did certain act towards the commission of the said offence of rape and thereby committed an offence punishable under Secs. 376/511 of the Indian Penal Code and within my cognizance. 4. Prosecution examined as many as 8(eight) witnesses to prove the charge and after closure of prosecution evidence, the accused was examined under Section 313 of Cr.P.C. and the accused examined one witness on his behalf. Learned Addl. Sessions Judge, considering the prosecution evidence on record acquitted the accused from the charge framed against him under Section 376 read with Section 511 of IPC observing thus: 12. It is true that the complainant in her F.I.R. clearly stated that the accused had attempted to commit rape on her and for that matter there was a scuffle between the accused and her. But the said witness in her evidence has said that taking the advantage of the absence of her husband and father-in-law from the house the accused trespassed into her room and committed rape on her. So, the evidence of the complainant (P.W.1) is found to be seriously inconsistent with the F.I.R. on material particulars. The complainant has improved and developed her statement before the Court. During cross-examination of the complainant (P.W.1), the defence side has confronted her with reference to her earlier statement made to the police U/s. 161 Cr.P.C. It is seen that the complainant (P.W.1) while giving statement to the police clearly stated that the accused attempted to commit rape on her. In my opinion, the evidence of the complainant suffers from exaggeration and embellishment. In my opinion, the evidence of the complainant suffers from exaggeration and embellishment. There is no medical report to substantiate the plea of the prosecutrix(P.W.1) that she was raped by the accused. It is the case of the prosecution that on entering into the room of the prosecutrix the accused jumped on her and committed rape. It has emerged from the evidence of P.W.2, P.W.3 and P.W.4 that they appeared at the scene of occurrence on hearing the cries of the child of the prosecutrix. As it appears, the prosecutrix(P.W.1) did not raise alarms at any point of time. P.W.1 has stated that there was a scuffle between the accused and her when the accused attempted to commit rape on her. Surprisingly enough, P.W.4 (the mother-in-law of the prosecutrix), who was sleeping in the next room, did not even hear any murmur from the room of the prosecutrix. It is an unbelievable story that during the entire process the prosecutrix did not find a moment to raise shout to invite attention of others. The version of the prosecutrix that she could not raise shout being his moth gagged by the accused does not inspire confidence of the Court. I have already stated earlier that the evidence of the prosecutrix is found to be serious inconsistent with the F.I.R. on material particulars. If the girl could alter her position in regard to these serious allegations at will, whereas the assurance that her word is truthful in relation to what she now says before the Court about the accused. Prosecution did not challenge the order of acquittal of the accused from the charge under Section 376 read with Section 511 of IPC. 5. On perusal of the evidence and materials on record, I find that in the FIR as well as in the statements of witnesses recorded at the time of investigation, there was no whisper that PW.1 was raped by the accused, but subsequently, they improved and developed the fact and made statements before court that the prosecutrix was raped by the accused. Under such circumstances, learned Addl. Sessions Judge rightly arrived at a finding of acquittal of the accused from the charge U/S 376 read with Section 511 of IPC, which has not been challenged before this Court. 6. Learned Addl. Under such circumstances, learned Addl. Sessions Judge rightly arrived at a finding of acquittal of the accused from the charge U/S 376 read with Section 511 of IPC, which has not been challenged before this Court. 6. Learned Addl. Sessions Judge, while deciding the charge under Section 457 of IPC, in para 14 of the judgment, observed thus: 14. Now, let me decided on whether the accused had trespassed into the dwelling hut of the complainant (P.W.1) at an unearthly hours of night with intent to commit any offence. To decide the above issue, besides the evidence of P.W.1 (the complainant), the evidence of P.W.2, P.W.3, and P.W.4 are material here. Both P.W.2 and P.W.3 have categorically stated in their evidence that, on hearing the cries of the child of the complainant, they rushed to their house from the Khowai river where they were catching fish and saw the accused, Malay Das, running away. It is seen from their evidence that when they tried to detain the accused, he pushed his way by giving a blow to P.W.3 and also by dashing P.W.4. Their evidence also demonstrates that they identified the accused in the light of the torch carrying by P.W.3, Ranjit Namasen. It is true that the P.W.2 and P.W.3 while giving statements to the police U/s. 161 Cr.P.C. did not disclose that they identified the accused in the light of the torch carrying by P.W.3, Ranjit Namasen. Admittedly, it is an omission. But it does not amount to contradiction as it has not touched the very factum of the case. The possibility of having a torch light in the possession of P.W.3, Ranjit Namasen, at the time of occurrence is quiet natural as he had gone to river to catch fish in the dead of night. P.W.4, Smti. Maya Rani Namasen, has also said in her evidence that, on hearing the cries of her grandson, she came out of her room and saw the accused fleeing. Though P.W.5, P.W.6 and P.W.7 are not eye witnesses to the occurrence, still from their evidence one thing is clear that some incident took place in the house of the complainant. P.W.5 and P.W.6 have clearly stated in their evidence that on the relevant date at around midnight they heard a hue and cry in the house of the complainant (P.W.1). The defence side has examined one Tilak Chandra Das as D.W.1. P.W.5 and P.W.6 have clearly stated in their evidence that on the relevant date at around midnight they heard a hue and cry in the house of the complainant (P.W.1). The defence side has examined one Tilak Chandra Das as D.W.1. From the evidence of the said defence witness it has come out that on the relevant date at midnight a quarrel ensued on a road between the accused and the husband of the complainant though, according to him, the subject matter of the quarrel was different. So from the evidence of the said D.W. the happenings of some incident on the midnight of 12- 9-02 can not be ignored. I think, the evidence of the D.W.1 will not help the accused in any manner in brushing aside the entire prosecution story. From the consistent evidence of P.W.1, P.W.2, P.W.3 and P.W.4, I am fully satisfied and convinced that the accused, Malay Das, had entered the house of the complainant on 12-9-02 at an unearthly hours of night to commit any offence punishable with imprisonment. The evidence of P.W.1, P.W.2, P.W.3 and P.W.4 is found to be clear, cogent, consistent and trustworthy as regards the commission of the offence of lurking house trespass by night by entering into the building belonging to the complainant by the accused. I do not find any ground to disbelieve this part of evidence of the aforesaid witnesses, particularly when no material could be elicited from their cross-examination casting doubt on their credibility. On scanning and scrutinizing the evidence on record, I have no hesitation to hold that the accused had trespassed into the building belonging to the complainant (P.W.1) on 12.9.02 at an unearthly hours of night with an intent to commit any offence punishable with imprisonment. That being so, the accused is guilty of the offence punishable U/s. 457 I.P.C. In view of what has been stated above, the prosecution has failed to prove the charge U/s. 376/511 of the Indian Penal Code framed against the accused beyond reasonable doubt and hence he is acquitted of the said charge. 7. Learned counsel, Mr. Lodh has submitted that prosecution evidence should be read as a whole and there was no scope of separating it for the purpose of decision on the charges. 7. Learned counsel, Mr. Lodh has submitted that prosecution evidence should be read as a whole and there was no scope of separating it for the purpose of decision on the charges. The decision of the trial court regarding punishment under Section 457 of IPC was wrong in view of the fact that the allegation of rape or attempt to commit rape has not been proved. Learned counsel, Mr. Lodh has also submitted that the evidence of PWs.1, 2, 3 and 4 should be read as a whole and while a part of it was found to be false the entire was bound to be rejected and the evidence of those witnesses means the entire statements made before the court and not a part of it. The trial court committed serious wrong by accepting part of it while the major part has been disbelieved. It has also been argued that the principal offence as alleged was U/S 376 read with S. 511 of IPC, while that charge failed, the ingredient of offence U/S 457, automatically was bound to fail, and therefore, the finding of conviction and sentence U/S 457 of IPC is bound to be interfered. In support of his contention, learned counsel referred the following case laws: a) (1996) 2 GLR 79 : Dulal Sonowal vs. State of Assam, b) (1996) 2 GLR 99 : Yazid Ali & Anr. Vs. State of Tripura c) (2006) 3 GLR 668 : Siba Ram Barua vs. State of Assam d) 1992 CRI. L.J. 3084 : Kandarpa Thakuria vs. State of Assam & Ors. e) AIR 1997 SC 381 : Namdeo Daulata Dhayagude & Ors. Vs. State of Maharashtra. f) 1971(3) SCC 408 : Nasiruddin & Ors. Vs. State of Assam g) AIR 2007 SCW 5845 : Radhu vs. State of Madhya Pradesh. 8. On the other hand, learned Spl. P.P., Mr. R.C. Debnath, appearing for the State respondent has submitted that the trial court did not believe the story of rape since at the inception, the allegation was that of attempt to commit rape but the consistent story of house trespass during night time has rightly been believed by the trial court since the evidence of the PWs has not been shaken in any manner. Referring to a decision of Apex Court, in the case of Jakki alias Selvaraj & Anr. Vs. Referring to a decision of Apex Court, in the case of Jakki alias Selvaraj & Anr. Vs. State, reported in AIR 2007 SCW 1327 , it has been submitted by learned counsel that the theory of rejection of the whole, while a part of it was not believable, cannot be termed as a good law and in the facts and circumstances of the case, punishment U/S 456 of IPC shall be the right decision and there cannot be punishment U/S 457 of IPC. 9. From the evidence of PWs.1 and 3, it appears, when PWs.2 and 3 were going out to catch fish in the nearby river, PW.3 asked PW.1 to bolt the door from inside but at that time PW.1 told her husband that she was milking the baby and would bolt it later on, and in the meantime, as she fell asleep, she could not bolt the door. This evidence has not been shaken. PW.1 further stated that when the accused jumped on her she scuffled with him and she could not raise cry but her child was crying, and hearing the same, her husband and her father-in-law rushed to the house and sensing it the accused fled away. PW.3 has stated that he flashed the torch light and found the accused over his wife and when he tried to detain the accused the accused dealt a blow on his face and fled away. The story of torch light was contradicted as there was no such statement before the I.O. at the stage of investigation but identification of the accused, being a local man, has not been shaken in any manner; rather it has been affirmed with the evidence of PW.1. The evidence that PW.3 could identify the accused and tried to detain him also remained un-rebuted. PW.2 stated that when he rushed to the house he found the accused was fleeing away, he also tried to detain the accused, but the accused pushed him down and fled away. This portion of the statement of the witness also has not been shaken. PW.4 stated that on hearing the cries when she came out, she found the accused was fleeing away. This portion of her statement has not been rebutted in cross-examination. 10. The incident occurred during night time, at about 11.30/12 pm. This portion of the statement of the witness also has not been shaken. PW.4 stated that on hearing the cries when she came out, she found the accused was fleeing away. This portion of her statement has not been rebutted in cross-examination. 10. The incident occurred during night time, at about 11.30/12 pm. and, naturally, the inmates of the house were the only witnesses to see it, and there is nothing to disbelieve the testimony of the witnesses regarding trespass of the accused in the house and fleeing away in presence of those witnesses. There was nothing that because of any previous enmity, the accused was falsely implicated in such a case. PW.5, on hearing the cries, arrived there and he was reported that the accused entered into the house, and as reported by the witnesses, committed rape on PW.1. PW.6 was also a neighbour and he was declared hostile by the prosecution and he also stated in his examination-in-chief that he went to the house of the informant sometime afterwards the cries were raised, and Ranjit Nama Sen(PW.3) told him that Maloy entered into the room of his wife and on being asked by him, Ranjit told him that he could not identify Maloy, while he was fleeing away from the room. He was in that house for about half an hour and during that period he had seen Ranjit was trying to assault his wife and on being asked, Ranjit told him that his wife was at fault. After declaring hostile, prosecution referred the previous statement made by the witness before the I.O. to which he denied to have made statement that Debendra Nama Sen and his daughter-in-law told him that Maloy Das(accused) entered into the room and tried to commit rape on the daughter-in-law of Debendra and that they found Maloy Das, fleeing away. That portion of the statement was proved as Exbt.2. PW.7, the village Pradhan was also declared hostile by the prosecution. In her examination-in-chief, she stated that about one year back, on a certain night at about 01.00 am, Debendra Nama Sen and his daughter-in-law went to her house and told her that Maloy Das assaulted Debendra Nama Sen and his son. She sent them back to their house and told them that she would see the matter later on. In her examination-in-chief, she stated that about one year back, on a certain night at about 01.00 am, Debendra Nama Sen and his daughter-in-law went to her house and told her that Maloy Das assaulted Debendra Nama Sen and his son. She sent them back to their house and told them that she would see the matter later on. On the following day, she went to elsewhere and on the next day, she came to learn that they had instituted a case against Maloy Das. In her cross-examination, after declaring her hostile, prosecution referred to her, the previous statement, recorded by I.O., to which she denied to have made the statement that Debendra and his wife went to her house and told that Debendra with his son, went to river Khowai to catch fish and at that time, wife of Ranjit was sleeping with her child and at about 12/12.15 am, Maloy entered into the room of the daughter-in-law of Debendra and embraced her to commit rape. That portion of the statement was marked as Exbt.3 and was proved by I.O. In further cross-examination, she stated that it was true that on 13.09.2002 she went to the house of Debendra Nama Sen and talked with his daughter-in-law and she told her that Maloy Das entered into her room and tried to commit rape on her. She then advised them to report to the police station. Defence could not bring anything specific from the mouth of the hostile witnesses. On careful perusal of the depositions of PWs.6 and 7, it appears that PW.6 went to the spot on hearing the cries, which means, certain incident occurred and though PW.6 tried to suppress what he was reported about the accused but the truth is that he was reported about the trespass of the accused in the house on the victim. PW.7 categorically admitted in cross-examination that on the night of occurrence itself, Debendra and his wife visited her house and reported her about the occurrence and on the following day when she visited their house she was reported about the occurrence. 11. It is a settled law that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. The court should remain aware that prima facie, a witness who made different statements at different times has no regard for truth. 11. It is a settled law that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. The court should remain aware that prima facie, a witness who made different statements at different times has no regard for truth. The court, should, therefore be slow to act on the testimony of such witness and, normally, it should, look for corroboration of the evidence of the hostile witness. That part of the evidence, which is, otherwise, acceptable and either favouring the prosecution or the defence may be accepted for consideration. Presence of PW.6 in the scene of occurrence has not been disputed by the defence. Even no denial was put to PW.6. So, it appears that PW.6, hearing cries went to the house of the informant on the night of the occurrence and he was reported by the witnesses regarding the incident. There is no scope to exclude this presumption from the evidence of PW.6. It is the definite case of the prosecution that on the night of occurrence PW.2 with his wife went to the house of PW.7 and reported the occurrence, which was admitted by PW.7, and that was the reason for delay in lodging the FIR. PW.7 admitted that she did not take any step on the following day as assured by her. But she visited the house of the informant on the following day and the informant narrated her the occurrence. Under such circumstances, the evidence of PWs.6 and 7 was materially corroborated with the evidence of PWs.1, 2, 3, 4 and 5 in respect of trespass of the accused in the house of the informant on that night of occurrence. 12. Let us now see the evidence of DW.1. In his deposition, the witness stated that about two years ago, on the day of 26th Bhadra, at midnight, he heard a hue and cry on the road and he rushed there. On arriving there, he saw Maloy Das(accused) and Ranjit Nama Sen(PW.3), the husband of prosecutrix(PW.1), picked up quarrel with each other. He intervened and kept both the parties aside. He advised them to report the incident to the local Pradhan, Mamata Acherjee(PW.7). The subject matter of the dispute between Maloy and Ranjit was a hen. On being advised, both Maloy and Ranjit went to the Pradhan. He intervened and kept both the parties aside. He advised them to report the incident to the local Pradhan, Mamata Acherjee(PW.7). The subject matter of the dispute between Maloy and Ranjit was a hen. On being advised, both Maloy and Ranjit went to the Pradhan. He could not say anything what was the outcome of the complaint made to the Pradhan. After seven days of the incident, he learnt that prosecutrix filed a complaint against Maloy at the initiation of her husband for committing rape on prosecutrix. On the night of incident, he was not told either by victim or by her husband that she was raped by Maloy. The father-in-law of prosecutrix also did not tell him anything. The relation between the inmates of both the houses was strained, but Maloy Das had a visiting term in the house of Ranjit Nama Sen. In cross-examination, by the prosecution he stated that he cannot say what happened before his arrival at the place of occurrence. He can not say of any incident occurred in the house of prosecutrix as nobody told him anything in that regard. The evidence of DW.1 cannot be appreciated in isolation of the other evidence on record i.e. the prosecution evidence. Accused did not examine himself as a witness. He also did not state anything in his examination U/S 313 of Cr.P.C. except denial of prosecution allegation. Even the hostile witness also stated nothing in support of the story narrated by DW.1. None of the prosecution witnesses made a statement that there was a quarrel on the issue of a hen on the road on that night between the accused and PW.3, and that DW.1 interfered in it. Had the fact been referred to those witnesses, a response, definitely, would have been there and in that case the defence story would get strength. In the facts and circumstances of the case, while the defence suddenly brought a new story, which was not at all referred to the prosecution witnesses, cannot be considered, and therefore, for non-consideration of such fact, the trial court cannot be blamed. Further the evidence of DW.1 to the effect that he advised the accused and PW.3 to go to pradhan, has not been supported by PW.7, the pradhan of the village. Further the evidence of DW.1 to the effect that he advised the accused and PW.3 to go to pradhan, has not been supported by PW.7, the pradhan of the village. Under such circumstances, the prosecution case to the extent that the accused trespassed into the house of the informant cannot be disbelieved or thrown away as a whole. 13. The Apex Court in the case of Ugar Ahir & Ors. Vs. State of Bihar reported in AIR 1965 SC 277 has held that the Maxim (falsus in uno falsus in omnibus) (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinize the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. In the case of Soma Bhai vs. State of Gujarat reported in AIR 1975 SC 1453 : the Apex Court has held that it is well settled that merely because a portion of the testimony of a witness is not reliable, this is no ground to brush aside his entire evidence. It is also settled principle of law that the courts should make an effort in disengaging the truth from the falsehood. In the case of Krishna Pillai Sree Kumar & Anr. vs. State of Kerela, reported in 1981 Supp. SCC 31 : AIR 1981 SC 1237 , the Apex Court has held it is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing is to be seen is whether those inconsistencies, etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit available to it. In the case of Gangadhar Behera And Ors. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit available to it. In the case of Gangadhar Behera And Ors. vs State Of Orissa reported in AIR 1965 SC 202 , the apex Court has held that the court must be careful to examine the entire evidence and must distinct the chaff from the grain and must not take to any easy approach of discarding the entire prosecution case merely because a part of the story is false. In the case of Jakki(supra), the apex Court has held thus: Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liars. The maxim 'falsus in uno falsus in omnibus' has not received general acceptance nor has this maxim come to occupy the status of a rule by law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. Even if major portion of evidence is found to be deficient, in case residue is deficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. 14. The trial court held the accused appellant guilty of committing offence punishable under Section 457 of IPC. To prove the charge under Section 457 of IPC following ingredients were required to be proved: (i) That the accused did lurking house trespass by night or house breaking by night; (ii) It was done in order to commit offence punishable with imprisonment. The trial court held the accused appellant guilty of committing offence punishable under Section 457 of IPC. To prove the charge under Section 457 of IPC following ingredients were required to be proved: (i) That the accused did lurking house trespass by night or house breaking by night; (ii) It was done in order to commit offence punishable with imprisonment. In the case in hand, the trial court has already held that the accused trespassed in the house, in order to commit an offence punishable with imprisonment, has not been proved. The decision has not been challenged by the prosecution. But the ingredients of lurking house trespass by night, on the basis of the evidence on record, have been clearly established, which constitutes an offence punishable under Section 456 of IPC. The argument advanced by the learned defence counsel, in view of the evidence and materials on record, does not stand in the way of coming to the conclusion that the ingredients of offence punishable under Section 456 of IPC has been clearly established. 15. The ratio of the decision of the single Bench of this Court in the case of Siba Ram Barua(supra) cannot be applied in this case in view of the cogent evidence on record, which has established offence punishable under Section 456 of IPC. In the case of Namdeo Daulata Dhayagude(supra), the Apex Court in the particular facts and circumstances has held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused. The ratio of this decision of the apex court is not applicable in the case in hand in view of the fact that the story of house trespass by night has not been contradicted with the previous statement made by the witnesses before police and there is no such contradictions on record to discredit the evidence of witnesses on that score. The ratio of the decision of Yazid Ali (supra) and Dulal Sonowal(supra) in the facts and circumstances of this case are not applicable at all. The ratio of the decision of Yazid Ali (supra) and Dulal Sonowal(supra) in the facts and circumstances of this case are not applicable at all. There is no reason at all to discard the entire evidence of the prosecution, for the reason that a part of it is not reliable. In the case in hand, the accused committed lurking house trespass by night, which has been established with overwhelming evidence. He has entered in the house of the informant at midnight and without informing the informant or the house owner and when he was about to be detained, he fled away. Such entry of the accused definitely constitutes the ingredients of lurking house trespass by night but does not constitute house-breaking by night in order to commit offence. Therefore, the ratio of the decision in Nasiruddin(supra) cannot be applied. 16. In view of the discussions made above, the convict appellant is found guilty of committing offence punishable under Section 456 of IPC and he is acquitted from the charge under Section 457 of IPC. The convict appellant is sentenced to suffer RI for six months and to pay a fine of Rs. 5,000/-, in default of payment of fine, to suffer further SI for one month. 17. Send back the LC records along with a copy of the judgment.