JUDGMENT Hon’ble Naheed Ara Moonis, J.—The instant criminal appeal has been preferred against the judgment and order dated 26.2.1982 passed by the First Additional Sessions Judge, Bijnor in S.T. No. 467 of 1980 (State v. Abdul Aziz) whereby convicting the appellant under Section 459 I.P.C. with sentence of seven years rigorous imprisonment. 2. Heard Sri Vishal Mohan Gupta, learned Advocate as Amicus Curiae on behalf of the appellant and the learned A.G.A. Sri R.D. Yadav on behalf of the State and perused the record. 3. The prosecution case in short conspectus is that the First Information Report was lodged by Chhatra Pal Singh (P.W. 1) on 16.1.1980 at 11 a.m. in respect of the incident occurred at about 3/4 a.m. in the night that one person scaled in his house from the side of the lane after climbing upon his roof. He heard the cracking sound of opening the door, he woke up and had seen in the light of oil lamp (dibiya) that Abuld Aziz the appellant was there he at once caught him and started shouting. At his shouting Ram Pal Singh (P.W.2) Ishwari Singh (P.W.3) soon thereafter came at the spot. Ram Pal Singh was having torch in his hand. The appellant was assaulting with knife on his left hand on account of which he lost his grip and the appellant escaped after climbing over the roof. The complainant as well as the witnesses tried to nab him but he could not be apprehended. Both the witnesses have identified clearly and when they returned back and went inside the Kothari found that gold ornaments weighing three tolas worth Rs. 3000 were found missing, which had been stolen by the appellant Abdul Aziz. The stolen articles can be identified by the complainant and his wife Vinod Kumari on production. The complainant had sustained knife injury over his left hand. The report was scribed by Nanhey Singh on the basis of which the First Information Report was registered as case Crime No. 2 under Sections 459 and 380 I.P.C. at police station Afzalgarh, district Bijnor. The criminal law was set in motion on the registration of the First Information Report. The chick report was prepared by Head constable Kallu Singh (P.W. 4) on 16.1.1980 at 11 a.m. Exhibited as Exhibit Ka. 5, which was entered into G.D. Exhibited as Exhibit Ka. 6. The criminal law was set in motion on the registration of the First Information Report. The chick report was prepared by Head constable Kallu Singh (P.W. 4) on 16.1.1980 at 11 a.m. Exhibited as Exhibit Ka. 5, which was entered into G.D. Exhibited as Exhibit Ka. 6. The blood stained shirt of the complainant was taken into custody, which was kept under sealed cover of which a recovery memo was prepared exhibited as Exhibit Ka. 2. The injured complainant was sent to Afzalgarh for medical examination. There he was medically examined at about 11.45 a.m. on the same day by Dr. Mohan Lal Sharma. The following injuries were found on the person of the complainant Chhatra Pal Singh, P.W. 1; I. Incised wound 5 xm x 1 cm. X muscle deep on the medial surface of left fore arm 22.5 cm. Above to the left wrist joint. II. Incised wound 2 cm x .3 cm. x skin deep on the left palm 18 cm. below to the tip of the middle finger. III. Incised wound 3 cm x .7 cm x skin deep on the medial surface of left fore arm 7 cm. above to the left wrist joint. IV. Incised wound 3 cm x .5 cm x muscle deep on the medial surface of left fore arm 10 cm. Above to the left wrist joint. V. Incised wound 3 cm x .3 cm x skin deep on the medial surface of left fore arm 12 cm. above to the left wrist joint. VI. Incised wound 4 cm x 1 cm x muscle deep on the medial surface of left fore arm 15 cm above to the left wrist joint. VII. Incised wound 3.5 cm x 1 cm. X muscle deep on the medial surface of left fore arm 16 cm. above to the left wrist joint. 4. The injures were found simple in nature caused by some sharp object and duration about six hours before. 5. The investigation was handed over to Lalman Singh, S.I. P.W.5 who recorded the statement of Head Constable Kallu Singh (P.W. 4), Constable Chakradhar Prasad, Chhatrpal, Safique Ahmad. He recorded the statement of injured Chhatrpal (P.W.1) in the hospital and received the injury report. 5. The investigation was handed over to Lalman Singh, S.I. P.W.5 who recorded the statement of Head Constable Kallu Singh (P.W. 4), Constable Chakradhar Prasad, Chhatrpal, Safique Ahmad. He recorded the statement of injured Chhatrpal (P.W.1) in the hospital and received the injury report. The Investigating Officer went at the place of occurrence at 3.30 p.m. where he recorded the statement of Mahendra Singh, Ram Pal P.W. 2 Ishwari Singh, P.W.3 under Section 161 Cr.P.C. besides various other persons and prepared the site plan, which was proved as Exhibit Ka. 7. He had also taken into custody of lamp which was found in a burning condition, the memo of which was prepared exhibited as Exhibit Ka. 3. The Investigating Officer searched the accused at his house but he was not found, hence proceeding under Section 82 and 83 Cr.P.C. Initiated as he did not surrender despite issuance of bailable and non bailable warrant. The appellant surrendered only on 18.3.1980 and was sent to jail. Thereafter the Investigating Officer had recorded the statement of the accused appellant in jail and after collecting clinching material submitted the charge-sheet. The charge was framed against the appellant on 19.8.1981 under Section 459 I.P.C. by the Ist Additional Sessions Judge, Bijnor, which was explained to him in Hindi who pleaded not guilty and claimed to be tried. 6. In order to prove the guilt of the appellant the prosecution has examined complainant Chhatral Singh as P.W. 1 an injured witness, who had narrated the entire incident as mentioned in the First Information Report. P.W. 2 Ram Pal Singh who was the neighbour of the complainant and came at once hearing the scream of the complainant having torch in his hand and identified the appellant and had stated that he found that the appellant was in the hold of the complainant and the appellant was inflicting knife blows and thereafter he escaped from the spot. Ishwri Singh P.W.3 who was named in the first formation report as an eye-witness had reiterated the version as stated by Chhatra Pal Singh, P.W. 1 Ram Pal, P.W. 2 and Ishwari P.W. 3 were examined by the prosecution as witnesses of fact. Ishwri Singh P.W.3 who was named in the first formation report as an eye-witness had reiterated the version as stated by Chhatra Pal Singh, P.W. 1 Ram Pal, P.W. 2 and Ishwari P.W. 3 were examined by the prosecution as witnesses of fact. Head constable Kallu Singh was examined as P.W.4 as formal witness to prove the chick First Information Report and the general diary entry and had also proved the preparing of recovery of blood stained shirt belonging to the complainant, P.W. 5 Lalman Singh. S. I. was examined who had investigated the case and submitted the charge-sheet. Since the injury report was accepted by the defense hence the Doctor was not produced. Thereafter the statement under Section 313 Cr.P.C. of the accused/appellant was recorded who denied the charges and stated that he has been falsely implicated in the case. In defense he did not adduce any evidence. On the appreciation of the evidence the learned trial Court arrived at the conclusion that the prosecution has proved the guilt against the appellant beyond all the reasonable doubt, hence the appellant was found guilty of offence under Section 459 I.P.C. whereby convicted to undergo rigorous imprisonment of seven years as stated above. 7. Learned Amicus Curiae has vehemently argued that the appellant has been falsely implicated in the present case. The First Information Report was lodged by the complainant merely on suspicion. Looking into the nature of injuries sustained by P.W. 1 the complainant it appears that the incident had occurred in some other manner, the injuries were sustained by the complainant in the night of cold season but he was only wearing a shirt. The alleged incident is said to have occurred in between 3 to 4 O’ Clock on 16.1.1980 and in the close vicinity of his house other people were also residing and if the appellant was also residing in the same vicinity. It is highly improbable that he would not have covered his face before entering into the house of the appellant. The blood stained shirt was not sent for Serelogist for examination. Neither the knife, which is said to have been used by the appellant inflicting injuries to the complainant nor the stolen ornaments were recovered by the Investigating Officer. 8. It is highly improbable that he would not have covered his face before entering into the house of the appellant. The blood stained shirt was not sent for Serelogist for examination. Neither the knife, which is said to have been used by the appellant inflicting injuries to the complainant nor the stolen ornaments were recovered by the Investigating Officer. 8. It is also submitted by the learned Amicus Curiae appearing for the appellant that it is highly improbable that the complainant was sleeping inside his house while leaving the door open of verendah and roof. The wife of the complainant was not produced to support the prosecution case that the ornaments were missing from the Kothari, which is also highly improbable that the appellant would know about the keeping of the ornaments inside the Kothari in a box concealed under paddy. 9. It is submitted by the learned counsel for the appellant that the appellant was in jail for a period of three months during pre and post trial. Now 36 years have elapsed since the date of occurrence and 32 years since the appeal is pending before this Court. The appellant has no criminal history. The appellant is now aged about 71 years ailing with old age disease, hence he deserves to be acquitted of the charge. 10. Learned A.G.A. has submitted that there is no reason to falsely implicate the appellant. The appellant in the intervening night of 15/16.1.1980 at about 4 p.m. while committing lurking house trespass inflicted injuries to the complainant with intent to cause grievous hurt with knife and he was succeeded in escaping from the spot by taking ornaments lying inside Kothari. The medical report of the complainant amply shows that the appellant had assaulted the complainant with knife. Two eye-witnesses arrived there who tried to nab the appellant but they could not succeed and after they returned to the house of the complainant they went inside the Kothari where the ornaments were found missing. There is no reason for the eye-witnesses to falsely implicate the appellant as they had no enmity with him. Two eye-witnesses arrived there who tried to nab the appellant but they could not succeed and after they returned to the house of the complainant they went inside the Kothari where the ornaments were found missing. There is no reason for the eye-witnesses to falsely implicate the appellant as they had no enmity with him. There is no infirmity in the judgment and order passed by the Court below in appraising the evidence and as such the trial Court has rightly convicted the appellant for the offense punishable under Section 459 I.P.C. Mere passage of time will not minimize the guilt of the appellant who had tried to take the life of the complainant by inflicting successive blows with knife, hence the conviction is liable to be maintained. 11. Having considered the argument advanced by the learned Amicus Curiae as well of the learned A.G.A. for the State. The prosecution has come with a cooked up story with regard to the manner of incident as alleged by the complainant. The complainant has stated that the witnesses arrived there on his scream. They had also seen that the appellant was assaulting the complainant P.W. 1 but no effort was made by the two eye-witnesses to apprehend the appellant or to save the complainant from him. The First Information Report was lodged by the complainant at about 11 a.m. after due deliberation with the so called eye-witness where as the said incident had occurred between 3-4 a.m. on 16.1.1980. The First Information Report is highly belated. The presence of prosecution of witnesses are doubtful. The site plan, which has been prepared by the Investigating Officer clearly shows that the houses of other persons were adjacent to each other and on hue and cry of the complainant only the said two eye-witnesses arrived there and no one came out from their houses to chase the person who is said to have escaped from the house of the complainant. The Investigating Officer has also not collected the knife with which the appellant is said to have assaulted the complainant. The wife of the complainant was also not examined to support missing of ornaments nor there was any recovery of ornaments hence the complicity of the appellant appears to be doubtful as no one had seen the actual assailant and as such the appellant deserves to the benefit of doubt. The wife of the complainant was also not examined to support missing of ornaments nor there was any recovery of ornaments hence the complicity of the appellant appears to be doubtful as no one had seen the actual assailant and as such the appellant deserves to the benefit of doubt. It is also very pertinent that the trial Court has misread the evidence on record. The injuries of the injured were examined at 11.45 a.m. on 16.1.1980 by the Doctor who found the injuries simple in nature and duration was about six hours whereas the alleged incident is said to have occurred in between 3 to 4 O’clock. The Doctor was not examined in support of the prosecution case. Even if the prosecution case is taken to be true on its face value, no prima facie offence under Section 459 I.P.C. is made out, which relates to lurking house trespass or house breaking by night where death or grievous hurt is caused by any person. Under Section 459 I.P.C. the points requiring proof are that the accused committed lurking house trespass by night or house breaking and that the accused caused grievous hurt or attempted to cause death or grievous hurt to some person. The learned trial judge has lost sight that the injuries examined by the doctor were neither found grievous in nature nor there was any statement of the complainant that the appellant who was assaulting him, with intent to kill him nor it was the prosecution case, therefore, the conviction of the appellant under Section 459 I.P.C. is unsustainable. 12. In view of the proviso to Section 464 Cr.P.C. as no valid charge has been framed against the accused/appellant, under the facts and circumstances of the case, the conviction of the appellant deserves to be quashed. The judgment and order of the trial Court dated 26.2.1982 convicting and sentencing the appellant under Section 459 I.P.C. is hereby quashed. 13. Accordingly, the appeal is allowed. The appellant is acquitted of the charge levelled against him. The appellant need not to surrender. The bail bonds and sureties are hereby cancelled. The sureties are discharged from their liabilities. Lower Court record be sent to the trial Court for necessary compliance. 14. The office is directed to pay honorarium of Rs. 8,000/- to the learned Amicus Curiae Sri Vishal Mohan Gupta, Advocate for rendering his valuable assistance to the Court. 15. The bail bonds and sureties are hereby cancelled. The sureties are discharged from their liabilities. Lower Court record be sent to the trial Court for necessary compliance. 14. The office is directed to pay honorarium of Rs. 8,000/- to the learned Amicus Curiae Sri Vishal Mohan Gupta, Advocate for rendering his valuable assistance to the Court. 15. The judgment be certified and be kept on record.