RAMESH Vs. STATE OF HARYANA

JUDGEMENT

(1.) ON the night intervening 3rd/4th June, 1978 Man Mohan Singh was sleeping in his bungalow situated at Faridabad along with his children in front of the compound of his house. Around 11.00 P.M. he heard a thud showing some person to have trespassed into his house after scaling over the rear boundary wall of the house. He went into that direction and found three accused having trespassed into his house. He was in a position to identify them because they were vagabonds and used to wander in that sector aimlessly. He raised an alarm 'thief' and gave a chase to the trespasser. With the aid of one Vinod Kumar, P.W. a neighbouring shop-keeker, they were able to nab one of the accused named Rajpal Singh but the remaining two being Ramesh, the present petitioner and Sahib Singh escaped. From Rajpal Singh who was caught at the spot, two pants, one bushirt and one Sari were recovered which belonged to Man Mohan Singh.

(2.) FOR these acts, the three accused were sent up for trial under sections 457/380, Indian Penal Code. Shri B.P. Jindal, the Chief Judicial Magistrate, Faridabad sentenced each of accused under section 380 ad also under section 457, Indian Penal Code. On the question of sentence it was the petitioner alone who was sentenced to three months rigorous imprisonment under both the counts and the sentences were ordered to run concurrently. so far as the other two accused were concerned they were let off on probation since they were less than 21 years of age on the date of the commission of the offence. The respondent, Ramesh, was denied the concession since his age at that time was stated to be 27 years. The learned Additional Sessions Judge, Faridabad to whom he appealed left the order of conviction and sentence uninterfered which has given rise to the petitioner to approach this Court in revision.

(3.) SO far as the conviction under section 457 IPC is concerned, the learned counsel for the petitioner has contended that the presence of the petitioner in the house in question cannot be said to commit any offence, and the conviction under the said section too is not sustainable. In my view, the argument is logical, for the presence of the petitioner in the house may well be for a purpose other than that of committing of any other offence punishable with imprisonment as described in section 457 I.P.C. However, the presence of the petitioner in the house during the night certainly is an act punishable under section 453 IPC, for he committed simple lurking house trespass by scaling over the wall by using cover of darkness for the purpose. It has to be taken note of that in order to conceal his house-repassing from the inmates, who had a right to exclude or evict him, from the building which was the subject matter of trespass, he cannot put forth remotely even the suggestion that he had scaled over the wall for the joy of it. Accordingly his conviction under section 457 IPC is set aside but instead he is convicted under section 453 IPC, which warrants sentence of two years rigorous imprisonment and also that of fine.