Jharkhand High Court
Kalamuddin Ansari vs State Of Jharkhand on 5 August, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Revisional Jurisdiction)
Criminal Revision No. 344 of 2015
Kalamuddin Ansari, s/o Maniruddin Ansari, r/o village-Mango,
PO+PS-Balidih, District-Bokaro ... Petitioner
Versus
State of Jharkhand ... Opposite Party
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioner : Mr. Jawed Sultan, Advocate
For the State : Mr. Bishwambhar Shastri, APP
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Order No.12/Dated: 5th August 2022
The petitioner suffered conviction and sentence of SI for
3 years under section 457 of the Indian Penal Code; SI for one year
and six months each under sections 380 and 411 of the Indian
Penal Code (in short, IPC).
2. The aforesaid judgment of conviction and the order of
sentence, both dated 25th July 2008, passed in T.R. Case No. 555
of 2008 was challenged by the petitioner in Criminal Appeal No. 59
of 2008.
3. The appellate Court held that conviction and sentence
awarded by the learned Judicial Magistrate, 1 st Class, Bokaro for
the offences under sections 411 and 457 IPC were well founded -
conviction under section 380 IPC was found not proved.
4. The case of the prosecution is that in the intervening
night of 27/28th June 2004 at about 1:30 AM the informant woke
up on hearing some noise and found one person standing inside
his house. On enquiry, the stranger informed his name
Kalamuddin Ansari - he is the petitioner before this Court. The
stranger was apprehended and on search one Panasonic CD
Remote Control was recovered from his possession.
5. Balidih PS Case No. 60 of 2004 was registered on 28 th
June 2004 against the petitioner for committing offences under
sections 457, 380 and 411 IPC and he faced the trial on the charge
framed for committing the aforesaid offences.
2 Criminal Revision No. 344 of 2015
6. The prosecution examined eight witnesses to prove the
aforesaid charges framed against the petitioner in T.R Case
No. 555 of 2008.
7. The defence set up by the accused was that to put
pressure on him so that the criminal case lodged by his father
against the informant is withdrawn he was falsely implicated in the
case.
8. The offence under section 457 refers to lurking
house-trespass or house-breaking by night in order to commit
offence punishable with imprisonment. Criminal trespass has been
defined under section 441 IPC and the lurking house-trespass by
night has been defined under section 444 IPC.
9. Section 441 IPC provides that if someone enters into or
upon property in the possession of another with intent to commit
an offence or to intimidate, insult or annoy any person in
possession of his property he commits the offence of criminal
trespass. The offence of criminal trespass is converted into lurking
house-trespass by night if someone commits criminal trespass
between sunset and sunrise, taking precautions to conceal himself
(refer, section 444 IPC).
10. The offence under section 457 IPC of lurking
house-trespass by night in order to commit offence punishable
with imprisonment is attracted only when the prosecution is able
to prove that the accused intended to commit some offence and if
the offence intended to be committed is theft the punishment
would extend to maximum imprisonment for a term of 14 years.
11. The petitioner was found inside the house of the
informant, a property in possession of the informant, in the
intervening night of 27/28th June 2004. The time at which he was
apprehended inside the house of the informant is said to be about
1:30 AM and, therefore, the ingredients for constituting the offence
of lurking house-trespass by night have been proved by the
prosecution.
12. The prosecution, however, has failed to establish the
charge under section 411 IPC as the ownership of Panasonic CD
3 Criminal Revision No. 344 of 2015
Remote Control was not established during the trial and while so
the prosecution has failed to establish that the accused intended
to commit any offence. On the contrary, as per the prosecution
itself the offence of theft intended to be committed by the accused
has not been proved.
13. In the aforesaid circumstances without going into the
defence set up by the petitioner, this Court holds that the offences
under sections 457 and 411 IPC were not proved against him.
However, the offence punishble under section 456 IPC stands
proved for which the maximum punishment is 3 years.
14. Mr. Jawed Sultan, the learned counsel for the petitioner
informs the Court that the petitioner has remained in custody for
about 21 months (from 28th June 2004 to 15th July 2004 and 6th
February 2015 to 16th August 2016).
15. Accordingly, the petitioner is convicted and sentenced
to period already undergone by him under section 456 IPC.
16. Criminal Revision No. 344 of 2015 is partly allowed in
the aforesaid terms.
17. The petitioner is discharged of liability of the bail-bonds
furnished by him, pursuant to the order dated 17th August 2016
passed by this Court.
18. Let the lower Court records be sent to the Court
concerned, forthwith.
(Shree Chandrashekhar, J.)
Amit/
