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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

J U D G M E N T

Dharmendra alias Phusa Ram Vs. State of Rajasthan

S.B.CRIMINAL APPEAL NO.353/2007

against the judgment dt.30.4.07 passed by

Addl.Sessions Judge (FT) No.1, Jodhpur,

in Sessions Case No.49/2006.

Date of Judgment: Aug 05, 2008

P R E S E N T

HON'BLE MR.JUSTICE DEO NARAYAN THANVI

Mr.Sandeep Mehta, for appellants.

Mr.Vishnu Kachhwaha, Public Prosecutor.

BY THE COURT :

1.

This is an appeal against the judgment of the learned

Addl.Sessions Judge (FT) No.1, Jodhpur dated 30.4.07, whereby

he has convicted & sentenced the accused appellants

Dharmendra alias Phusa Ram and Ashwani alias Sheru as under:

U/Sec.459 IPC

One year's S.I. & a fine of Rs.3000/- & in

default, to further undergo 3 months'

additional imprisonment;

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U/Sec.325/34 IPC

Six months' S.I. & a fine of Rs.500/- & in

default, to further undergo one month's

additional imprisonment;

U/Sec.323 IPC

One month's S.I. & a fine of Rs.250/- & in

default, to further undergo 7 days'

additional imprisonment;

All the substantive sentences were ordered to run

concurrently.

2.

The case was instituted on the basis of F.I.R., Ex.P.1

lodged by complainant Rajkumar on 11.10.2005 in which it was

alleged that on 10.10.05 at 9.00 PM, when he alongwith his

brother Mahesh Kumar Joshi and father Paras Ram Joshi were

sitting at their house, four to five persons who were armed with

weapons, abruptly entered into their house and threatened to kill

them. Accused appellant Dharmendra, who was armed with

sharp edged weapon, inflicted blows on his brother, upon which

his brother fell down. Thereafter, the brother of Dharmendra viz;

Sheru (appellant No.2) caught hold of his father and pressed his

neck and also gave blows with some sharp edged weapon. Upon

hearing their cries, his uncle, aunt and mother & neighbours

rushed towards the place of incident. On seeing them, the

accused persons fled away. Upon this report, the police

registered a case u/ss.143, 148, 149, 458, 307, 342 & 323 IPC

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and commenced investigation. After investigation, the accused

were challaned u/ss.325 and 458/34 IPC. The case was

committed to the court of Sessions, where accused were charged

u/ss.459, 325/34 and 323 IPC. The prosecution examined 11

witnesses. The statements of the accused were recorded u/s.313

CrPC. They led not evidence in their defence. After hearing the

arguments, the learned trial Judge convicted and sentenced the

accused appellants as above.

3.

Learned counsel for the appellants has not questioned the

legality of conviction of accused u/ss.323 and 325/34 IPC but,

however, submitted that offence u/s.459 IPC is not made out. In

this regard, he has drawn my attention towards the statements

of the prosecution witnesses, who have said that no force was

used to open the gate. The learned trial Judge while discussing

the scope of Section 445 IPC, held that the fifth requirement of

house breaking is proved because the accused entered into the

house by using criminal force, as they pushed the door. Here in

the present case, if this definition of the House-breaking given

u/s.445 IPC is read in the light of the statements of the

prosecution witnesses, then PW 2, Paras Ram, who is the owner

of the house and injured, has said in the cross examination that

chick iron gate from inside was open and there was no bolt and

anybody can enter into it. PW 4 Premlata Joshi, wife of Paras

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Ram (PW 2), has said in her examination-in-chief that the gate

was opened with force and the incident took place outside the

house. PW 5 Mahesh Joshi, injured, son of Paras Ram (PW 2),

has said in the examination-in-chief that the accused entered

into the house by opening the door with the force of legs but

when he was confronted with the police statement Ex.D.3, he

said that he did not know why this fact was not written by