Sudama Singh and Another vs Rama Singh

P.K. Deb, J.—This revision petition has been preferred against the judgment and order dated 12-8-1994 passed by the Additional Sessions Judge, XII Patna in Criminal Appeal No. 175 of 1992 whereby and whereunder the judgment of conviction and sentence passed by the Judicial Magistrate, 1st Class, Patna, in Complaint Case No. 49(c)/87, Trial No. 612/87, has been confirmed. The petitioners have been convicted under Sections 457 and 380, I.P.C. and sentenced to undergo rigorous imprisonment for two years each on both counts and the sentences were asked to run concurrently.

An information was lodged by the complainant to the effect that on the night of occurrence, i.e., on 1-10-1984 after hearing some sounds, he opened up his doors and found that several heads of cattle and a she-buffalo disappeared from his compound. While he was searching for those cattle heads, he could see these two accused-persons (petitioners) fleeing away and he had firm doubt that these two persons must have taken away the cattle from his house. On the basis of that First Information Report, investigation was held but the police submitted final form with a comment that although the case was true but the allegations were found to be false on investigation. A protest petition was then filed by the complainant and after holding an inquiry u/s 202, Cr. P.C. cognizance was taken u/s 380/457, I.P.C. and summonses were issued against the petitioners and, in that view, they had faced the trial. In the protest petition, it was averred by the complainant that after hearing sound when he opened up his doors, he could find these two petitioners standing within the compound of his house being armed with weapons and they threatened him and his inmates not to raise alarm and in that process 4-5 other persons were seen taking away the cattle heads of the complainant.

Although these facts were mentioned in both the judgments of the Courts below but the same had not been considered in the proper perspective. The earlier version of the complainant was that as the accused-persons were seen fleeing away soon after the occurrence then there was strong doubt that they might have committed the offence of theft of the cattle heads and when the police submitted final form to the effect that though the case was true but the allegation was false then complainant embroidered the whole story and now he has brought direct allegation against the petitioners of being present within the compound of his house when the offence was committed. This must be an after-thought from the side of the complainant after the final form being submitted by the police after investigation. The earlier version of the complainant that these accused-persons were seen fleeing away from the place of occurrence and if that version remains then practically there being no case established against the accused-petitioners.

Now, if we take the subsequent version of the complainant to be true and as also evidence being given in favour of the complainant then also there is no case against these two accused-persons of committing theft of the cattle heads as it was the firm case of the complainant that when these two accused-persons were threatening the inmates of the complainant then other 4-5 persons had taken away the cattle heads. So no case has been established against the petitioners u/s 380 of the I.P.C. Even on the subsequent version of the complainant and the evidence adduced in support of it. Regarding the offence u/s 457 I.P.C., it must have been proved that there was house breaking or lurking of house trespass by night. The ingredients of lurking house trespass by night require that there must be a precaution of concealment from the side of the accused-persons but there is no such evidence in the present case. It is also not there how and through which passage the accused-petitioners had entered inside the compound of the house of the complainant. The offence of house breaking and lurking of house trespass by night requires that such trespass must be within the building but here as per version of the prosecution, the accused-petitioners were found standing outside the building but inside the compound being armed with weapons. Thus, even if the subsequent version of the prosecution story is also taken to be true then also none of the sections of the, I.P.C., namely, 380/457, I.P.C. cannot be attracted against the accused-petitioners.

In that view, the revision petition is hereby allowed and the conviction of the petitioners is set aside giving them benefit of doubt. They are acquitted of the charges. They should be relieved of their bail-bonds.