Delhi High Court: The Bench of Sanjeev Sachdeva, J., in a criminal revision petition presented before him, stated that no interference was required from the earlier order of conviction by the trial court though in the interest of justice cumulative sentence of the petitioner be reduced.
In the present case, petitioner impugned the judgment whereby the Appellate Court dismissed the appeal of the petitioner impugning order on conviction and order on sentence. Petitioner was convicted of the offences under Sections 380 and 454 Part II of the Penal Code, 1860. Both the sentences were directed to run successively.
An FIR was registered on the complaint of Kaushik Ganguly, who contended that while leaving the house he had locked it properly and on his return the balcony door was found to be open. On finding the same, he saw one person jumping from the balcony and running away and when he raised the alarm the said person was caught. The said person is the petitioner in the present case.
Learned Counsel for the petitioner, S.C. Sagar, submitted that, the trial court, as well as the Appellate Court, erred in not appreciating that no offence under Section 454 IPC was made out as the ingredients of Section 443 IPC (lurking house-trespass) were not made out. Extending his contention, he also stated that petitioner had undergone incarceration of 3 years 10 months and 20 days and therefore earned remissions of 9 months and 25 days.
It was noted that in terms of Section 443 IPC, 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.
Since, no evidence was placed to prove the above, the offence of lurking house trespass was not made out. Though, from facts of the case, it was clear that the offence of House breaking under Section 445 IPC, punishable under Section 454 IPC was made out.
Thus, there was no infirmity in the order of the trial court in convicting the petitioner for the offence under Sections 380 and 454, Penal Code, 1860. Order of conviction does not warrant any interference. [Lokesh Kumar v. State (NCT of Delhi), 2019 SCC OnLine Del 7007, decided on 12-02-2019]
