Gauhati High Court
Page No.# 1/12 vs The State Of Assam on 5 June, 2024
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/12
GAHC010007942012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./164/2012
NAMAR ALI LASKAR and ANR
S/O LATE FOSAI MIA LASKAR, VILL TRIGAGA, P.O. JAMIRA, P.S.
KATLICHERRA, DIST. HAILAKANDI, ASSAM.
2: MD. RAHIM UDDIN LASKAR
S/O LATE KALA MIA LASKAR
VILL. JAMIRA BAGAN BASTI
P.O. JAMIARA BAZAR
P.S. KATLICHERRA
DIST. HAILAKANDI
ASSAM
VERSUS
THE STATE OF ASSAM
Advocate for the Petitioner : MR.Z HAMMAD
Advocate for the Respondent :
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BEFORE
HONOURABLE MRS. JUSTICE MALASRI NANDI
Date : 05-06-2024
JUDGMENT & ORDER (CAV)
Heard Mr. A. M. Barbhuiyan, learned counsel for the appellant. Also heard Mr.
K. Baishya, learned Additional Public Prosecutor for the State.
2. This appeal is directed against the Judgment and Order dated 22/06/2012,
passed by the learned Sessions Judge, Hailakandi, in Sessions case No.
42/2006.
3. The factual matrix relating to this appeal is that the informant lodged an
FIR before the OC, Katlicherra PS alleging inter alia that on 13/10/1993 at
around 2:00 AM, when one Faraz Uddin, was reading a religious book in his
house, all the members of his family were present. At the dead of night, hearing
the barking of dog outside his house, he came out and saw some people
trespassing into his house. Those people started to abuse him with filthy
languages. At that time accused persons namely Namar Ali, Rahim, Banai and
another unknown person entered into his house and shot at him with a gun. It
was also alleged in the FIR that the accused person also assaulted other
members of his family and snatched away a sum of Rs. 29,000/- from his
house.
3. On receipt of the complaint, one case was registered vide Katlicherra PS
case No. 161/93 u/s 459/380/307 IPC and investigation was initiated. During
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investigation the investigating officer visited the place of occurrence, recorded
the statement of the witnesses and seized the pallets and sent the injured to
the hospital for treatment. After completion of the investigation, charge sheet
had been laid u/s 459/307/34 IPC before the Additional CJM, Hailakandi. As the
offences are exclusively triable by the court of the court of Sessions the case
was committed accordingly.
4. During trial, the accused/appellants put their appearance before the trial
court and charge was framed u/s 459/307/34 IPC, which was read over and
explained to the accused/ appellants to which they pleaded not guilty and
claimed to be tried. After completion of the trial, the statement of the appellants
were recorded u/s 313 Cr.PC and incriminating materials found in the evidence
of the witnesses were put to them to which they denied the same. It is further
stated that they were innocent and have been falsely implicated in this case.
After hearing the arguments advanced by the learned counsel for the parties,
the trial court has convicted the accused/ appellants u/s 459 IPC and sentenced
them to undergo rigorous imprisonment for five years and to pay fine of Rs.
2000/- each and in default of payment of fine, further RI for two months each.
Hence, this appeal.
5. The learned counsel for the appellant has argued that the learned trial
court has overlooked the material discrepancies found in the depositions of
PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 and wrongly convicted the
accused/appellants and as such the impugned judgment is perverse and the
same is liable to be set aside.
6. It is also the submission of the learned counsel for the appellants that the
PW-3, the victim had stated that the appellant Namar Ali, armed with gun and
shot at him for which he sustained injury on his left thigh. But PW-5 in her cross
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examination stated that one Balai Miah, was armed with gun and fired bullets to
PW3 which hit the left thigh of the victim. It is also submitted that the medical
report of the victim did not support the ocular evidence as because the medical
officer replied in his cross examination that the injury sustained by the victim
might be possible by falling on hard substance as such the learned counsel for
the appellants prays to set aside the impugned judgment of the trial court.
7. Learned counsel for the appellant has pointed out that as per medical
report of the victim, he sustained simple injury but the appellants were
convicted u/s 459/ 34 IPC which deals with the offence of grievous hurt caused
whilst committing lurking house trespass or house breaking. Hence, the
appellants cannot be convicted u/s 459/34 IPC as the injuries caused to the
victim was simple in nature.
8. In support of his submissions, learned counsel has placed reliance on the
following case laws -
a. (2005) 3 SCC 260 (Mathai vs. State of Kerala)
b. AIR 1958 Patna 452 (Rambaran Mahato vs. State of Bihar)
c. (2021) 13 SCC 716 (Jaikham Khan vs. State of Uttar Pradesh)
d. Criminal Appeal No. 304 of 2019 (Fula @Fulchand vs. State of
Rajasthan)
9. Per contra, learned Additional P.P, has submitted that the witnesses
examined by the prosecution, has implicated the present appellants in the case
that they have committed the offence u/s 459 IPC. The learned trial court has
rightly convicted the appellants which needs no interference by this court.
10. PW1 is the daughter of the injured, she deposed in her evidence that the
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incident occurred in the year 1993 at around 2:00 AM (at night). She was in her
parental home. On that night, one Faraz Uddin was reading a religious book in
their house in presence of her parents and other family members. At that time,
while they were listening recitation of Faraz Uddin, her father Monir Ali heard
the barking of dog outside their house. He went outside and noticed four/five
persons standing on their courtyard namely, Namar Ali, Rahim and Balai. They
asked her father not to make nay noise and threatened her father with dire
consequences. They first assaulted her father with lathi, spear and gun. When
her mother, sister and she tried to save her father, the said three accused
persons assaulted them. As one of the accused persons fired with firearm to her
father, he sustained injury on his thigh. They also took away a box containing
cash.
11. In her cross examination, PW-1 replied that at the time of incident, she
was around ten years old. Accused Namar Ali shot at his father with the gun
causing injury on his thigh.
12. PW-2 is another daughter of the victim, from her deposition it reveals that
at the time of occurrence she was sleeping inside their house. After hearing hue
and cry, she woke up and saw both the accused persons inflicting injuries on the
person of her father and some other miscreants were standing outside their
house. Accused Namar Ali fired a bullet from a gun which hit her causing injury
on her left knee. The witness also alleged that both the accused/appellants also
had inflicted injuries to PW-1 and her mother.
13. PW3 is the victim/injured, who deposed in his evidence that on the date
of incident at night at about 12 AM, one Faraz Uddin was reading a religious
book in his house and he and his family members were listening the said
recitation. At that time, he heard the barking of dogs outside his house. While
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he came out from his house, he noticed six/seven persons inside his courtyard
namely Rahim, Namar, Balai and some other persons who started to attack him
by means of lathi. Having seen such assault hurled towards him, PW1 and PW2
jumped over his body to save him and they also sustained injuries on their
persons. A cash amount was kept inside a box near his bed which was taken
away by accused Balai. Namar fired bullet from a gun which hit his leg and
forehead. Accused Balai dealt a daw blow towards his forehead. The bullet fired
by the accused Namar also hit PW2 causing injury on her leg. On the next day
morning he lodged the FIR. He was in hospital undergoing treatment for about
a month.
14. In his cross examination, PW-3 stated that the incident took place at
about 2 AM and at that time, the doors of the house were closed without
fastening properly. One of the bullets hit the bed which he had shown to the IO.
The remaining bullet hit on his leg. It was suggested that he did not sustain
bullet injury on his person.
15. PW-4 is the adjacent neighbor of the victim. He deposed in his evidence
that in the year 1993, dacoity was committed in the house of the informant. At
the time of dacoity, while he came out of his house on hearing hue and cry,
then the accused persons aimed a gun towards him asking him not to raise
alarm. Due to darkness of night, he could not recognize the miscreants but on
the following morning he came to know from the informant that out of all the
miscreants, the informant recognized three persons namely Balai, Rahim Uddin
and Namar Ali.
16. PW-5 is the daughter of the injured who reiterated the same thing
whatever stated by PW1, PW2 and PW3 regarding gun shot injury caused by
Namar Ali towards his father in which he sustained injury on his left thigh.
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17. In her cross examination, PW-5 replied that at the time of incident three
persons entered into their house, some other persons were standing outside but
she could not identify them. Subsequently, this witness also stated that accused
Balai Miah armed with gun and he fired towards his father causing injury on his
thigh.
18. PW6 is the medical officer, who examined the victim. He deposed in his
evidence that on 14/10/1993 he examined the victim Monir Ali and found the
following injuries:-
a. One lacerated wound of size ½ cm in diameter over the inner aspect of left
thigh, about 10 cm above the left knee joint.
b. One lacerated wound of size ½ cm in diameter over the inner side of the
left thigh, about 12 cm above the left knee joint.
c. One lacerated wound of size 5 cm 3 cm x 2 cm over the right parietal region
of the scalp, about 2 cm to the right of the middle of the scalp.
d. One lacerated wound of size 6 cm x 3 cm x 2 cm over the right parietal
region of the scalp.
e. One lacerated wound of size 2 cm x 2 cm x 2 cm over the right forehead.
f. One haematoma of size 2 cm in diameter over the middle of the left
clavicle.
The doctor opined that the first three wounds were caused by palletes fired
from a small fire arm and fresh, simple in nature. And the other wounds were
caused by blunt object and fresh, simple in nature. The medical officer proved
the injury report vide exhibit 1.
19. From the evidence of the aforesaid witnesses, it reveals that there are lots
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contradictions regarding the alleged incident. Though PW-1, PW-2 and PW-3
categorically stated that accused/appellant Namar Ali was carrying a fire arm by
which he shot at PW3 causing injury on his right thigh, but according to PW-5,
accused Balai Miah armed with a gun and fired upon his father which hit his
thigh. The PW-4, who is the neighbour of the victim failed to identify the
miscreants came on that night in the house of the informant. But he stated that
the victim sustained injuries on his person due to the alleged incident. According
to PW-2, accused Namar Ali fired from a gun which hit her causing injury on her
left knee, but the other witnesses did not utter a single word regarding fire arm
injury received by PW-2 on her left knee. No any injury report of PW-2, is also
available in the record. PW2 stated that on the date of incident, she was
sleeping inside the house. After hearing hue and cry, she woke up and saw both
the accused persons assaulting towards his father. PW2 is silent whether her
father sustained any fire arm injury on his person.
20. So far as the charge for offence u/s 459 IPC is concerned, as per this
provision whoever, whilst committing lurking house trespass or house breaking
causes grievous 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 10 years and shall also be
liable to fine.
21. The word 'whilst' according to the oxford English dictionary means 'during
that time; meanwhile.' For applying the words 'whilst committing house breaking
by night', it is necessary to show that the attempt was made in the period
during which the offence of house breaking (which involves house trespass) was
being committed. It is not sufficient to show that the attack was made after the
house trespass had ceased. In the present case, the allegation is that after
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criminal trespass, the appellants caused simple hurt to the injured, PW3.
Therefore, during the period the house breaking lasts if the trespasser causes
grievous hurt to any person or attempts to cause death or grievous hurt, the
provision of section 459 of IPC will be attracted.
22. In the case of Bhanwarlal vs. Mst. Parbati reported in (1968) 0 CrlJ 130,
wherein it was held as follows -
"The word whilst according to the Oxford English Dictionary, 1938 Edition, Vol. III, is an
obsolete form which means "during that time; meanwhile". It is indicative of a portion of time
considered with respect to the duration of a transaction. I am, therefore, inclined to be of the
view that during the period the house-breaking lasts if the trespasser causes grievous hurt to
any person or attempts to cause death or grievous hurt the provisions of sec. 459 of the Indian
Penal Code will be attracted. I am unable to take the narrow view that it is only in the process
of making an entry into a house if the trespasser causes grievous hurt sec. 459 IPC is attracted,
as seems to be the view taken in Said Ahmeds ease(4). The reasons are aperient for my
inability, with great respect, to agree with Ashworth J. in Said Ahmeds case(4). The first is that
the essential ingredient of lurking house- trespass or house-breaking is criminal trespass and
that offence continues so long as the person remains upon the property in the possession of
another. Entrance may be surreptitious and in some cases a split-second transaction. It could
not have been the intention of the legislature that if a person enters into the house of another
by night having made preparations for causing hurt or assault to any person or wrongfully
restraining then it would be a graver offence than the one in which a person after having
entered upon the property of another causes grievous hurt. Having regard, therefore, to the
scheme and the place which S. 459 occupies in the Indian Penal Code the intention of the
legislature was that from the point of time lurking house-trespass or house-breaking by night
commences to the time it concludes if any grievous hurt is caused or any attempt to commit
death or grievous hurt is made then the trespasser shall be punished as provided for in section
459 of the Penal Code. "
23. In the case Shahnaz Uddin Laskar vs. The State of Assam, reported in 2016 0
Supreme (Gau) 398, it was observed that -
"The learned Sessions Judge having perused such evidence convicted the accused
under section 459 of the Indian Penal Code but in view of the fact that the accused did not
assault on the victim inside the house but did so by dragging her outside, we are of the view
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that the offence committed by the accused does not attract section 459 of the Indian Penal
Code but thereby he has committed an offence under section 326/453 of the Indian Penal
Code. This is because an offence under section 459 of the Indian Penal Code involves
committing lurking house trespass or house breaking and causing grievous hurt in course of
such trespass. If grievous hurt is caused either while making lurking house trespass or while
inside the house wherein the trespass had taken place, then and then only section 459 of the
Indian Penal Code would apply. Here, in this case, the accused trespassed into the house of
the victim and, thus, committed house breaking and then dragged her outside and sought to
commit rape but on being resisted stabbed on her person four times causing grievous hurt and,
thus, section 459 of the Indian Penal Code would not apply."
24. Delhi High Court in the case of Suraj Giri & Ors Vs. State (S.B. Criminal
Appeal No. 141, 565 and 638/2017) decided on 11.10.2017 while dealing
with Section 459 IPC held as under :-
"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 v. 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 8th/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
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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."
25. In the case of Inder Puri vs. State of Rajasthan (S.B. Criminal Revision
Petition No. 205/2020), it was held that if during the period of house breaking,
if the trespasser causes grievous hurt to any person or attempt to cause death
or grievous hurt, the provision of section 459 IPC will apply. In Bhanwarlal
(Supra) it was observed that if the trespasser causes grievous hurt or attempts
to cause death or grievous hurt during the period in which the trespass into the
house has not been completed, then section 459 IPC would apply.
26. Although the peculiar facts and circumstances of each of the aforesaid
cases had led to different conclusions, the underlying logic employed is that if a
trespasser causes grievous hurt or attempts to cause death or grievous hurt in
the course of the trespass i.e., whilst committing lurking house trespass or
house breaking, the provision of law laid down in section 459 would apply.
27. Admittedly, in the instant case as per medical report the victim sustained
simple injury on his person. The medical report is totally silent regarding
entrance and exit of the bullet from the body of the injured. From the cross
examination of medical officer PW-6, it reveals that such type of injuries may be
caused by falling on hard substances. Though the medical officer stated in his
report that injury no 1, 2 and 3 are caused by fire arm injuries but subsequently,
he also stated that such injuries are simple in nature. It is not reflected from the
medical report of the victim on what basis the medical officer has confirmed
that the injuries sustained by the victim are simple in nature.
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28. In the light of the aforesaid proposition of law as well as the evidence of
the prosecution witnesses including the medical report, this court finds that the
conviction u/s 459/34 IPC cannot be sustained against the accused/appellants.
Hence, they are acquitted and set at liberty forthwith.
29. In the result, appeal is allowed. Send back the trial court record.
JUDGE
Comparing Assistant
