Delhi High Court
Suraj Giri vs State on 11 October, 2017
$~4, 5 & 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: October 11, 2017
+ CRL.A. 141/2017
SURAJ GIRI ..... Appellant
Through: Mr.Biswajit Kumar Patra,
Advocate (DHCLSC) with
appellant in person.
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Satish Kumar, PS
Aman Vihar.
AND
+ CRL.A. 565/2017
GUDDU GIRI ..... Appellant
Through: Ms.Inderjeet Sidhu, Advocate
(DHCLSC) with appellant from
J/C.
versus
STATE ..... Respondent
Through: Ms.Kusum Dhalla, APP for the
State with SI Satish Kumar, PS
Aman Vihar.
AND
+ CRL.A. 638/2017
DEVENDER PRASAD @ LAMBU ..... Appellant
Through: Mr.Jatin Rajput, Advocate
(DHCLSC) with Mr.Surya Nath
Pandey, Advocate and appellant
from J/C.
versus
CRL.A.Nos.141, 565 & 638 of 2017 Page 1 of 9
STATE ..... Respondent
Through: Mr.Kewal Singh Ahuja, APP
for the State with SI Satish
Kumar, PS Aman Vihar.
PRATIBHA RANI, J. (Oral)
1. These three appeals have been preferred by appellants Suraj
Giri, Guddu Giri and Devender Prasad assailing the judgment dated
24th October, 2016 passed in Session Case No.57720/16 whereby they
have been convicted for committing the offence punishable under
Section 459/34 IPC and sentenced as under:-
Appellant Suraj Giri : to undergo RI for 5 years with
fine of `1000/- and in default of
payment of fine to undergo SI
for one month
Appellant Guddu Giri : to undergo RI for 7 years with
fine of `1000/- and in default of
payment of fine to undergo SI
for one month
Appellant Devender Prasad : to undergo RI for 5 years with
fine of `1000/- and in default of
payment of fine to undergo SI
for one month
2. In brief the prosecution case as narrated in the complaint
Ex.PW-1/A made by PW-1, Bahadur Baghel is that he was residing at
House No.E-141, Laxmi Vihar, near Shivam Model School, Prem
Nagar-III, Delhi and was running a tea shop. Pawan, Devender, Suraj
and Guddu were residing in his neighbourhood. Pawan took a loan of
₹15,000/- from him about 3 years prior to 1.4.2012 and Guddu took a
loan of ₹25,000/- about 6-7 months prior to 1.4.2012. Suraj and
Devender also took some money from him. When he asked all of them
to return the money, they deferred the repayment on one pretext or the
other. About 4-5 days prior to 1.4.2012 all the four accused came to
his shop and when he asked them to return his money they refused to
return the money. They not only abused him but also threatened to
teach him a lesson. On the night intervening 31.3.2012 and 1.4.2012 at
about 4.30 a.m. when he along with his wife and daughter was
sleeping in his house all the four accused persons entered his house
from the roof of the adjoining house. On hearing some sound, when he
woke up, accused Suraj and Pawan caught hold of him from his neck
and Devender caught his hands whereas Guddu started stabbing him
with the knife saying that 'TUJHE HUM ABHI PAISE DETE HAI'.
He raised alarm and his wife and daughter came there. All the four
accused ran away saying that 'AAJ KE BAAD PAISE MAANGE TO
TUJHE ZINDA NAHI CHHODENGE'. The matter was reported to the
police and he was taken to the hospital.
3. On the basis of above statement case FIR No. 80/2012 under
Sections 450/326/34 IPC PS Aman Vihar was registered. During
investigation the accused Suraj Giri, Guddu Giri and Devender Prasad
were arrested and weapon of offence i.e. knife was recovered. After
completion of investigation charge-sheet was filed. Accused Pawan
was not traceable hence declared P.O.
4. On the basis of the material placed by the prosecution all the
three accused persons, namely, Suraj Giri, Guddu Giri and Devender
Prasad were charged for the offence punishable under Section for
459/34 IPC to which they pleaded not guilty. The prosecution
examined 9 witnesses in all to prove its case. Statement under Section,
313 Cr.P.C. of the accused persons/appellants herein have also been
recorded to explain the incriminating evidence appearing against
them.
5. After trial the accused persons were convicted for committing
the offence punishable under Section 459/34 IPC and sentenced in the
manner stated above.
6. Appellant Suraj Giri is present on bail. Pursuant to the
production warrants being issued, appellants Guddu Giri and
Devender Prasad have been produced from J/C.
7. Mr.Biswajit Kumar Patra, Advocate for appellant Suraj Giri,
Ms.Inderjeet Sidhu, Advocate for appellant Guddu Giri and Mr.Jatin
Rajput, Advocate for appellant Devender Prasad, on instructions,
submit that the appellants are not disputing the incident and they are
challenging their conviction only to the extent that they could not have
been convicted for committing the offence punishable under Section
459/34 IPC as no grievous injury was caused while committing
lurking house trespass at night. It has been submitted that the injuries
have been caused to injured Bahadur Baghel (PW-1) only after the
appellants had entered his house. Thus, they could only be convicted
under Section 457/34 IPC. Hence, their conviction may be altered
from under Section 459/34 IPC to Section 457/34 IPC. The appellants
have also prayed for a lenient view on the quantum of sentence
submitting that they are the sole bread earner in their family which
consist of their wife, children and aged parents. They are the first
offenders and not involved in any other case prior to this case or
thereafter.
8. Learned counsel for the appellants have placed reliance on Said
Ahmed & Anr. vs. King Emperor AIR 1927 Allahabad 536 in support
of his contentions.
9. I have considered the submissions made by learned counsel for
the appellants and carefully gone through the record.
10. Section 459 IPC provides as under:-
"459. Grievous hurt caused whilst committing lurking
house trespass or house-breaking.--Whoever, whilst
committing lurking house-trespass or house-breaking,
causes grievous hurt to any person or attempts to cause
death or grievous hurt to any person, shall be punished
with imprisonment for life, or imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine."
11. Section 457 IPC reads as under:-
"457. Lurking house-trespass or house-breaking by
night in order to commit offence punishable with
imprisonment.--Whoever commits lurking house-
trespass by night, or house-breaking by night, in order to
the committing of any offence punishable with imprison-
ment, shall be punished with imprisonment of either
description for a term which may extend to five years,
and shall also be liable to fine; and, if the offence
intended to be committed is theft, the term of the
imprisonment may be extended to fourteen years."
12. A bare reading of Section 459 IPC would reveal that it
contemplates a situation wherein the grievous hurt or attempt to cause
grievous hurt is while committing lurking house trespass or house
breaking.
13. In Said Ahmed's case (Supra) relied upon by learned counsel
for the appellants the offence of house breaking was held to be
complete when entry into the house is effected. It was also held that
any grievous hurt caused after breaking into the house would not
amount to causing grievous hurt while committing the lurking house
trespass within the meaning of Section 459 IPC. This Court has taken
a similar view in the decision reported as Rohtas Vs. State, 1987 (1)
Crimes 576 Delhi. In the above noted case, the occurrence had taken
place at about 1.30 a.m. on the night intervening 8 th/9th February, 1979
at the house of the complainant where he along with his wife was
sleeping at his house. The injuries were caused to the complainant and
his wife with a 'mussal' picked from the room. The appellant Rohtas
was convicted for committing the offence punishable under Section
459 IPC. In appeal the conviction under Section 459 IPC was
challenged on the ground that to attract the provision of Section 459
IPC the attempt to cause grievous hurt or an attempt to cause death or
grievous hurt to any person must be done in the course of commission
of offence of lurking house trespass or house breaking. While
accepting the submission made on behalf of the appellant in para No.7
of the report it was held as under:-
"7. There is much substance in the contention of learned
counsel for the appellant. In order to attract the
provisions of Section 459, the causing of grievous hurt or
the attempt to cause death or grievous hurt must be done
in the course of the commission of the offence of lurking
trespass or house breaking. It is not sufficient that the
grievous hurt was caused or the attempt made after the
completion of lurking trespass or house trespass. The
offence of house breaking is complete when the entry into
the house is effected, and grievous hurt caused
subsequently cannot be said to be caused "whilst
committing" the trespass. However, the fact remains that
the accused committed house trespass by entering into
the building which was being used by Tara Chand as a
dwelling place. The mere fact that the accused entered
the house and committed assault on Tara Chand and his
wife does not necessarily pre-suppose preparation. In
fact, there is no clear proof of preparation for causing
hurt etc. All these facts taken together will bring the case
within the four corner of Section 452 IPC. I, therefore,
alter the conviction of the accused from one under
Section 459 to the one under Section 452 IPC."
14. Reverting to the facts of the instant case, from the statement of
the complainant/injured (PW-1) it is proved that the hurt was caused
by the appellant not in the process of committing lurking house
trespass. The offence of lurking house trespass was complete once
they entered into the dwelling unit of the complainant. The injuries
subsequently caused by the appellant after breaking into his house do
not satisfy the requirement of section 459 IPC as held in Said
Ahmed's case (Supra) and by this court in Rohtas's case. Since the
grievous hurt has been caused after committing the lurking house
trespass, the offence proved against the appellants would be under
Section 457/34 IPC and not under Section 459/34 IPC.
15. I find force in the submissions made on behalf of the appellants
that the offence proved to have been committed by them does not fall
under Section 459/34 IPC. Learned APP for the State also concedes
that while committing lurking house trespass at night no grievous
injury was caused to PW-1 Bahadur Baghel - complainant/injured.
16. In view of the above discussion, the conviction of the appellants
is altered from Section 459/34 IPC to Section 457/34 IPC.
17. Now coming to the quantum of sentence, in view of the
submissions made on behalf of the appellants, the substantive sentence
awarded to them is reduced to three years. The sentence of fine is
maintained. However, in default of payment of fine, the SI of one
month is reduced to one week.
18. As per the nominal rolls of the appellants available on record,
the period of sentence undergone by them in this case is as under:-
Sl.No. Name of the As on date Period of sentence
appellant undergone
1. Suraj Giri 20.01.2017 3 months and 20 days
2. Guddu Giri 04.05.2017 2 years, 9 months and 23
days (meaning thereby
that as on date, the
appellant Guddu Giri
has undergone 3 years
and 2 months.
3. Devender 25.05.2017 7 months and 21 days
Prasad
19. Appellant Suraj Giri, whose substantive sentence was
suspended till the pendency of the appeal vide order dated 24 th March,
2017, is directed to surrender before the concerned Jail Superintendent
on 23th October, 2017 and intimation thereof shall be send to the
Registry by the concerned Jail Superintendent.
20. Since appellant Guddu Giri has already undergone the sentence
of three years in this case, he be set at liberty if not wanted in any
other case.
21. The appeals are allowed in above terms.
22. TCR be sent back alongwith copy of this order.
23. A copy of this order be sent to the concerned Jail
Superintendent for information and compliance.
PRATIBHA RANI
(JUDGE)
OCTOBER 11, 2017
'st'
