The mere fact that a house-trespass is committed by night does not make the offence one of lurking house-trespass: Odisha High Court
“Coming to the charge under section 457 of the Indian Penal Code, it requires commission of lurking house-trespass or house breaking by night in order to commit any offence punishable with imprisonment”, this remarkable stand was forwarded by Odisha HC in case of Satrughana Nag v. State of Odisha, [CRA NO. 128 Of 1990], chaired by Hon’ble Hon’ble Justice Mr. S.K. Sahoo of Odisha HC.
The appellant Satrughana Nag faced trial in the Court of learned Additional Sessions Judge, Titilagarh in Sessions Case No.62/22 of 1989 for offences punishable under sections 376/ 511, 354 and 457 of the Indian Penal Code.
The learned trial Court vide impugned judgment and order dated 17.03.1990, found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment (R.I.) for three years and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month for the offence under section 376/511 of Indian Penal Code, R.I. for one year and to pay a fine of Rs.100/-, in default, to undergo R.I. for one month for the offence under section 457 of Indian Penal Code and both the sentences were directed to run concurrently. No separate sentence was awarded for the offence under section 354 of the Indian Penal Code.
This appeal was preferred on 04.05.1990 and the appellant was directed to be released on bail as per order dated 25.05.1990. When the matter was called for hearing on 05.11.2020, learned counsel for the appellant was not present and since it is an appeal of the year 1990, Mr. Rajjeet Roy, learned counsel was appointed as amicus curiae to assist the Court for the appellant.
After examining all the submissions, arguments and evidences forwarded by the councils, the Hon’ble HC observed that, “The mere fact that a house-trespass is committed by night does not make the offence one of lurking house-trespass. There is no evidence that the appellant had taken precautions to conceal the house-trespass. As it seems, he had come inside the house of the victim wearing lungi and gamuchha. There is also no evidence that any housebreaking as defined under section 445 of the Indian Penal Code has been committed by the appellant.”
The bench further added that, “However, there are enough materials to make out an offence of house- trespass as defined under section 442 of the Indian Penal Code which is punishable under section 448 of the Indian Penal Code. Even if no specific charge is framed under section 448 of the Indian Penal Code but since charge was framed under higher offence like section 457 of the Indian Penal Code, it cannot be said that any prejudice is caused to the appellant in convicting him under section 448 of the Indian Penal Code. Accordingly, the conviction of the appellant under section 457 of the Indian Penal Code is set-aside, instead he is found guilty under section 448 of the Indian Penal Code.”
In lieu of the above made considerations and observations, the single judge bench in this present case held that, “In the result, conviction of the appellant under sections 376/511, 354 and 457 of the Indian Penal Code is hereby set aside, instead the appellant is convicted under section 448 of the Indian Penal Code and sentenced to undergo imprisonment for the period already undergone by him. The criminal appeal is allowed in part.”