NARAIN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This is a criminal revision and has been directed against the judgment dated 25-4-1987 passed by the learned AddI. Sessions Judge, Bhiwani who affirmed the judgment and order of the trial Court who convicted the petitioner under Section 448 I.P.C. vide impugned judgment dated 25-4-1987, the learned AddI. Sessions Judge. Bhiwani released the petitioner by giving him the benefit of Probation of Offenders Act on furnishing his personal bond in the sum of Rs. 2,000/- with one surety in the like amount for a period of six months. The petitioner was further directed to keep peace and be of good behaviour during the said period and ordered to pay a sum of Rs.500/- to the complainant by way of compensation. Still not satisfied with the judgment dated 25-4-1987 the present revision, which is being disposed of with the assistance rendered by Shri RS. Dhankar. Advocate appearing on behalf of the petitioner and Shri S.S. Ahlawat, learned AAG (H), on behalf of the respondent.

(2.) As I stated above the petitioner has been convicted under Section 448 I.P.C. for allegedly committing an offence of house trespass. In order to constitute whether a house trespass in a particular case has been made out or not, we will have to revert the definition of criminal trespass as defined under Section 441 I. P. C. According to this section whosoever enters into or upon property in the possession of another with the intent to commit an offence or to intimidate, insult or annoy any person in possession of the property, is said to commit criminal trespass. Reverting to the allegations against the petitioner, on the day of alleged incident dated 11-2-1985, the present petitioner Narain Singh alongwith one more person went to the house of Mohinder Singh who was the owner and in possession of the said house. The offence is alleged to have been committed vis-a-vis Lajpat Rai Sharma and Dhoop Singh who admittedly were neither the owners nor in possession of the property. So far as Lajpat Rai Sharma is concerned, the case of the prosecution is that he used to look after the children of Mohinder Singh while Dhoop Singh was a casual visitor. As per statement of Dhoop Singh, Lajpat Rai was also a casual visitor. Be that as it may the fact remains that neither Lajpat Rai nor Dhoop Singh were in possession of the house of Mohinder Singh who always remained as owner and in possession. It is not the case of the prosecution that the possession of this property was ever parted to Lajpat Rai or Dhoop Singh. Once the element of possession is missing in this case the ingredients of Section 441 I.P.C. are not fulfilled.

(3.) This case can be viewed from another angle. It is the case of the prosecution that the petitioner was also charge-sheeted for the offence under Section 506 I.P.C. for alleged criminal intimidation to Lajpat Rai Sharma and Dhoop Singh. For these allegations and charge the prosecution has failed. According to the prosecution these alleged offences were also allegedly committed inside the house. Once the prosecution has failed in proving the allegations under Section 5061.P.C., its failure goes a long way to knock the case of the prosecution that petitioner Narain Singh also committed an offence punishable under Section 441 I.P.C. Both the courts below have not appreciated this aspect of this case resulting serious prejudice to the petitioner who is agitating for his rights irrespective of the fact that he was granted probation under Probation of Offenders Act.