Lokesh Kumar vs.state (Nct of Delhi) & Anr. - Court Judgment

$~15 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on:

12. 02.2019 % + CRL.REV.P. 831/2016 LOKESH KUMAR versus STATE (NCT OF DELHI) & ANR Advocates who appeared in this case: For the... Petitioner

: Mr. S.C.Sagar, Advocate. ........ Petitioner

........ RESPONDENTS

For the Respondent: Mr.Hirein Sharma, APP for the State. SI Deep Chand, P.S.Vasant Vihar. CORAM:-

"HON’BLE MR JUSTICE SANJEEV SACHDEVA JUDGMENT SANJEEV SACHDEVA, J.

(ORAL) 1.... Petitioner

impugns judgment dated 17.09.2016 whereby the Appellate Court has dismissed the appeal of the petitioner impugning order on conviction dated 26.04.2016 and order on sentence dated 05.05.2016.... Petitioner

has been convicted of an offence under Section 380 and Section 454 Part II of the Indian Penal Code and sentenced to undergo 2½ years imprisonment with fine of Rs.5000/- in default 3 months SI for the offence under Section 380 IPC and RI for 3 three years and fine of Rs.5000/-, in default 3 months SI for the offence under Section 454 para II. Both sentences to run successively CRL.Rev.P.831/2016 Page 1 of 5 2. The subject FIR was registered on the complaint of one Kaushik Ganguly (examined as PW-1 before the Trial Court) who contended that he had locked his house while going out and on return found the door of the balcony open. When he ran towards the balcony he saw one person jumping from the balcony and running away. When he raised an alarm some passers by caught the said person. From the possession of the said person property of the complainant inter-alia documents, fast track watch, Nokia mobile were recovered. Said person is stated to be the... Petitioner

.

3. Learned counsel for the petitioner inter-alia contends that the Trial Court as well as the Appellate Court have erred in not appreciating that no offence under Section 454 IPC is made out as the ingredients of Section 443 IPC are not made out.

4. Learned counsel submits that petitioner has already undergone 3 years 10 months and 20 days of incarceration as on 06.02.2019 and earned remissions of 9 months and 25 days and the remaining portion of sentence is 9 months and 7 days (if fine paid as on 06.02.2019).

5. PW.1 Kaushik Ganguly in his evidence before the Trial Court has inter-alia stated as under:-

"“On 08.03.2015 at about 6:00 PM I had locked my house and at about 6:30 PM when I returned back I saw that the door of balcony of my house was open. I immediately ran towards the balcony and saw that one person jumped from the balcony and was running. I raised alarm and CRL.Rev.P.831/2016 Page 2 of 5 immediately went down and saw that some passerby had caught the said person (Accused is present in the court today and correctly identified by the witness). Some public person had also gathered at the spot. Accused was carrying a bag and on checking the same it was found containing one remote of my Tata Sky, photocopies of some documents, my fastrack watch, my Nokia mobile of black colour, my candle stand which were stolen by him and some other documents and articles. On inquiry, the name of accused was revealed as Lokesh.” 6. Section 443 IPC reads as under:-

"443. Lurking house-trespass.—Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the tres(cid:173)pass, to commit “lurking house- trespass”. is said 7. In terms of Section 443 for a person to commit lurking house- trespass, the prosecution not only has to establish house trespass but has also to prove that the accused has taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser.

8. Statement of PW-1 shows that when he returned he saw the door of the balcony of the house open which establishes that there was no attempt made by the petitioner to conceal the house-trespass. Since there is no evidence to show that petitioner had not taken any precaution to conceal the house trespass, so the offence of lurking CRL.Rev.P.831/2016 Page 3 of 5 house trespass is not made out.

9. However, when we look at Section 445 - House breaking, which is also punishable under section 454 IPC, it is clear that the said offence is made out. Section 445 IPC reads as under:-

"445. House breaking.—A person is said to commit “house-breaking” who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter de(cid:173)scribed; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say— (First) —……………… (Secondly) —If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. (Thirdly)-- ……………………… 10. The petitioner in the subject case scaled the wall and climbed over to the first floor for gaining access through the balcony. Thus petitioner has entered the house through a passage not intended for human entrance and has obtained access by climbing to the balcony and thus committed the offence of house breaking.

11. Perusal of the evidence as also the testimony of PW-1 shows that there is no infirmity in the order of the Trial Court in convicting CRL.Rev.P.831/2016 Page 4 of 5 the petitioner for the offence under Section 380 and 454 Secondly IPC. However, on the quantum of sentence it may be seen that petitioner has been in custody and the sentences have been directed to run successively.... Petitioner

has already undergone nearly 4 years 9 months of incarceration out of the total period of 5½ years. It is stated that fine has already been paid.

12. Keeping in view the totality of facts and circumstances, I am of the view that though the order on conviction does not warrant any interference, however, interest of justice requires that the cumulative sentence of the petitioner for both the offences be reduced to the period already undergone.... Petitioner

shall however pay the fine imposed, if not already paid.

13. In view of the above, the... Petitioner

is directed to be released, if not required in any other case.

14. Petition is accordingly disposed of in the above terms.

15. Order Dasti under signatures of the Court Master.

16. Order be also communicated to the Superintendent, Jail for compliance. FEBRUARY12 2019/ rk SANJEEV SACHDEVA, J CRL.Rev.P.831/2016 Page 5 of 5