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2026:CGHC:8244

AFR

Reserved on : 30.01.2026

Delivered on : 16.02.2026

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 378 of 2005

1 - Antram (Dead And Deleted As Per Court Order Dated 14-01-2026)

2 - Prahlad S/o Shri Siya Ram Aged About 57 Years Farmer, R/o

Village Muthali, P.S. Kusumunda, Distt. Korba, Chhattisgarh.

3 - Dhani Ram S/o Shri Prahlad Aged About 32 Years Labour, R/o

Village Muthali, P.S. Kusumunda, Distt. Korba, Chhattisgarh.

4 - Balram S/o Shri Prahlad Aged About 30 Years Labour, R/o Village

Muthali, P.S. Kusumunda, Distt. Korba, Chhattisgarh.

... Appellant(s)

versus

1 - State Of Chhattisgarh Through Station House Officer, P.S.

Kusumunda, Distt. Korba, Chhattisgarh.

... Respondent(s)

For Appellants : Mr. Vikash Kumar Pandey, Advocates

For Respondent/State: Mr. Shailesh Puriya, Panel Lawyer

Hon'ble Shri Justice Narendra Kumar Vyas

CAV Judgment

1.The appellants by way of this appeal have challenged the

judgment dated 22.03.2005 passed by the Sessions Judge,

Korba (CG) in Sessions Trial No. 28/2004 whereby and

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whereunder, appellants have been convicted and sentenced as

under :-

Conviction u/S.Sentence RI.Fine In default of

payment of fine

458 IPC 2 Years and

6 months

Rs. 1000/-4 months RI

323 IPC with

Section 34 IPC

6 Months Rs. 500/-1 month RI

2.Briefly stated, the case of the prosecution is that the victim,

Rukmani Bai, is the niece of Rajkumar as well as that of the

accused persons Antaram and Prahlad. Rukmani Bai had come

to her mother Sukvara Bai at the house of Rajkumar in village

Mudali, and she used to do household work at Rajkumar’s

house. In the night of 26.05.2004, Rukmani Bai was sleeping in

the courtyard of Rajkumar’s house, while her mother Sukhvara

Bai and her aunt Pancho Bai were sleeping inside the house. At

that time, Rajkumar and his wife were away from the house. At

about 2:00 a.m., the accused persons trespassed into the

courtyard by scaling the wall and caught hold of Rukmani Bai.

They assaulted her by kicking her on the abdomen, and accused

Antaram assaulted her with tip of a stick. The other accused

persons caught hold her hands, due to which Rukmani Bai could

not escape. On hearing her cries, Sukhvara Bai and Pancho Bai

raised an alarm to call for help. Thereupon, the accused persons

fled away from the spot. At the relevant time, Rukmani Bai was

pregnant. Due to the assault on her abdomen, she started

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experiencing severe pain and on medical examination it was

found that the child died in womb due to assault. Rukmani Bai

lodged a report regarding the incident at Police Outpost Hardi

Bazar, where FIR No. 0/2004 was registered. Subsequently, a

formal FIR bearing Crime No. 272/2004 was registered at Police

Station Kusmunda.

3.After completion of usual investigation, a charge-sheet was filed

under Sections 458, 316,323, 304 of the IPC against the

accused persons before the learned Judicial Magistrate First

Class, Katghora. Learned Judicial Magistrate First Class,

Katghora vide its order dated 27.08.2004 committed trial to the

learned Sessions Judge, Korba which was registered as

Sessions Trial No. 28/2004. The accused denied the charges

leveled against them under Sections 458, 316, 323 and 304 of

the IPC and faced trial.

4.To bring home the charges against appellants, the prosecution

examined as many as 9 witnesses namely PW/1 the victim

Rukhmani, PW/2 Sukvara Bai, PW/3 Pancho Bai, PW/4 Raj

Kumar, PW/5 Dr. N.N. Kanwar, PW/6 Shrawan Kumar, PW/7 D.r

Veena Agrawal, PW/8 Dr. P.S. Kanwar, PW/9 Yadumani Sidar,

SI and exhibited documents Ex.P/1 Intimation under 174 Cr.P.C.,

Ex.P/2 Intimation under 175 Cr.P.C., Ex.P/3 Naksa Panchanama,

Ex.P/4 Deadbody Supurdnama, Ex.P/5 Medical Examination

Report, Ex.P/6 Seizure Memo, Ex.P/7 to P/11 Arrest

Panchnama, Ex.P/12 medical examination report, Ex.P13A-

application for postmortem, Ex.P/13 Postmortem Report,

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Ex.P/14 application for Medical Examination, Ex.P/15 Spot Map,

Ex.P/16 application to SDM, Ex.P/17 application for medical

report. The accused were examined under Section 313 of the

Cr.P.C. and exhibited documents Ex.D/1 FIR, Ex.D./2 Police

Statement of the victim, Ex.D/3 Police Statement of the

Sukvara, Ex.D/4 Police Statement of Pancho Bai, Police

Statement of Rajkumar.

5.Upon appreciation of the evidence and material on record, the

learned trial Court convicted the appellants and sentenced them

as aforesaid. Aggrieved thereby, the appellants have preferred

the present appeal under Section 374 of the Cr.P.C. The

appellants remained in jail from 28.05.2004 to 05.06.2004 during

trial and again from 22.03.2005 till the sentence was suspended

and bail was granted by this Court on 28.04.2005.

6.Learned counsel for the appellants would submit that the

appellants have been falsely implicated in the present case due

to property dispute between the family members. He would

assail the impugned judgment of conviction and order of

sentence as being illegal, perverse and contrary to the evidence

on record. He would submit that the prosecution has failed to

establish the ingredients of the offence punishable under Section

458 of the Indian Penal Code. The alleged place of occurrence is

an open courtyard, and there is no legally acceptable evidence

to show that the appellants committed lurking house-trespass or

house-trespass at night with preparation to cause hurt. The

essential requirement of “preparation” under Section 458 IPC

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has not been proved, rendering the conviction under the said

provision unsustainable. It is further submitted that the

prosecution case rests primarily on the interested testimony of

closely related witnesses and no independent witness from the

village has been examined, despite the alleged incident having

occurred in a residential area.

7.Learned counsel would further submit that since the trial Court

has already acquitted the accused for commission of offence

under Section 316 and 304 of the IPC, the conviction of the

appellants under Section 458 IPC is illegal as there is no

evidence by the prosecution to prove beyond reasonable doubt

that the accused have committed lurking house trespass with

intention to commit offence. He would further submit that there

are material contradictions and omissions in the statements of

the prosecution witnesses with regard to the manner of

occurrence, the role attributed to each accused, and the

sequence of events. These contradictions go to the root of the

prosecution case and render the version unreliable and would

pray for allowing the appeal.

8.Per contra, learned counsel for the State would vehemently

oppose the appeal and submit that the impugned judgment of

conviction and order of sentence have been passed after proper

appreciation of the oral and documentary evidence available on

record and do not suffer from any illegality or perversity

warranting interference by this Court. He would further submit

that the testimony of the victim, Rukmani Bai, is cogent,

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consistent and inspires confidence. Her version of the incident

stands duly corroborated by the evidence of material prosecution

witnesses, namely Sukvara Bai and Pancho Bai, who were

present at the spot and witnessed the aftermath of the incident.

Their presence at the place of occurrence is natural and has not

been shaken in cross-examination.

9.Learned counsel would further submit that the prosecution has

successfully established the offence of house-trespass at night

by proving that the accused persons unlawfully entered the

courtyard of the house by scaling the boundary wall at about

2:00 a.m. and committed assault, thereby clearly satisfied the

ingredients of Section 458 of the Indian Penal Code. He would

further submit that the medical evidence on record fully

corroborates the ocular testimony. The medical examination of

the victim establishes that she was pregnant at the relevant time

and that the foetus died in the womb as a result of the injuries

sustained on her abdomen. The nature and location of injuries

clearly support the prosecution version and rule out any

possibility of accidental or self-inflicted injuries. The prosecution

has proved beyond reasonable doubt that the accused persons,

in furtherance of their common intention, voluntarily caused hurt

to the victim and committed acts which resulted in death of the

unborn child. It is further argued that minor contradictions, if any,

pointed out by the appellants are trivial in nature and do not go to

the root of the prosecution case. Such discrepancies are natural

in the testimony of rustic witnesses and, rather than discrediting

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the prosecution case..

10.Lastly, learned counsel would submit that the accused were

afforded an opportunity to explain the incriminating evidence

during their examination under Section 313 of the Cr.P.C.

wherein they have not placed any material to dislodge the case

of the prosecution and would pray for dismissal of the appeal.

11.I have heard learned counsel for the appellants and the State

and perused the record of the trial Court with utmost satisfaction.

12.From the submission made by the learned counsel for the parties

and perusal of the record, the point emerged for determination

by this Court is ;

“Whether the prosecution is able to prove beyond

reasonable doubt the ingredients of Section 458 IPC and 323

IPC read with 34 IPC to render the conviction legal and

justified?”

13.For appreciation of this point, this Court has to go through the

evidence as well as the legal position with regard to proving of

Sections 458 and 323 of the IPC.

14.To appreciate whether offence under Section 458 of the IPC

lurking house trespass or house breaking by night after

preparation for hurt, assault or wrongful restrain is made out or

not, this Court has to examine whether the prosecution has been

able to prove beyond reasonable doubt of the ingredients of

Section 458 IPC i.e. the ingredients of lurking house trespass or

house breaking by night as defined in Sections 441, 442, 443,

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444, 445 and 446 of the IPC which read as under :-

Section 441. Criminal trespass —

Whoever 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 such

property,or having lawfully entered into or upon such

property, unlawfully remains there with intent thereby to

intimidate, insult or annoy any such person, or with intent

to commit an offence,is said to commit “criminal trespass”.

442. House trespass —

Whoever commits criminal trespass by entering into or

remaining in any building, tent or vessel used as a human

dwelling or any building used as a place for worship, or as

a place for the custody of property, is said to commit

“house-trespass”.Explanation.—The introduction of any

part of the criminal trespasser’s body is entering sufficient

to constitute house-trespass.

443. Lurking house-trespass —

Whoever commits house-trespass having taken

precautions to conceal such house-trespass from some

person who has a right to exclude or eject the trespasser

from the building, tent or vessel which is the subject of the

trespass, is said to commit “lurking house-trespass”.

444. Lurking house-trespass by night —

Whoever commits lurking house-trespass after sunset and

before sunrise, is said to commit “lurking house-trespass

by night”.

445. House Breaking ---

A person is said to commit "house-breaking" who commits

house-trespass if he effects his entrance into the house or

any part of it in any of the six ways hereinafter described;

or if, being in the house or any part of it for the purpose of

committing an offence, or, having committed an offence

therein, he quits the house or any part of it in any of such

six ways, that is to say--

First- If he enters or quits through a passage by himself, or

by any abettor of the house-trespass, in order to the

committing of the house-trespass.

Secondly- If he enters or quits through any passage not

intended by any person, other than himself or an abettor of

the offence, for human entrance; or through any passage

to which he has obtained access by scaling or climbing

over any wall or building.

Thirdly- If he enters or quits through any passage which he

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or any abettor of the house-trespass has opened, in order

to the committing of the house-trespass by any means by

which that passage was not intended by the occupier of

the house to be opened.

Fourthly- If he enters or quits by opening any lock in order

to the committing of the house-trespass, or in order to the

quitting of the house after a house-trespass.

Fifthly- If he effects his entrance or departure by using

criminal force or committing an assault or by threatening

any person with assault.

Sixthly- If he enters or quits by any passage which he

knows to have been fastened against such entrance or

departure, and to have been unfastened by himself or by

an abettor of the house-trespass.

Explanation- Any out-house or building occupied with a

house, and between which and such house there is an

immediate internal communication, is part of the house

within the meaning of this section.

446. House Breaking by night –

Whoever commits house-breaking after sunset and before

sunrise is said to commit “house-breaking by night”.

458. Lurking house-trespass or house-breaking by night

after preparation for hurt, assault, or wrongful restraint —

Whoever commits lurking house-trespass by night, or

house-breaking by night, having made preparation for

causing hurt to any person or for assaulting any person, or

for wrongfully restraining any person, or for putting any

person in fear of hurt, or of assault, or of wrongful restraint,

shall be punished with imprisonment of either description

for a term which may extend to fourteen years, and shall

also be liable to fine.

15.Evidence of PW/1 : - The victim, in her examination-in-chief,

has categorically deposed that at about 2:00 a.m. in the night,

she was sleeping at the house of her maternal uncle. At that

time, accused Antaram, Prahlad, Dhaniram, Balram and

Dharmin unlawfully entered the house and came into the

courtyard. Her mother was awake and, on noticing the accused

persons, raised an alarm stating that they had come to assault

them. Upon hearing this, the victim woke up, whereafter all the

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accused persons caught hold of her and started assaulting her.

She further stated that she folded her hands and requested her

maternal uncles to spare her, telling that she was seven months

pregnant. At that point of time, accused Antaram exhorted that

her abdomen itself be beaten so that she would die quickly, and

further instructed that no cut marks be caused. She deposed

that accused Dhaniram was holding a stick, accused Balram

was holding a tangia (axe), and her aunt Dharmin assaulted her

abdomen with fists, as a result of which she became

unconscious. The victim further stated that due to the blows

inflicted on her abdomen, the child in her womb died. Thereafter,

she called her husband and went to lodge a report at the police

station. Subsequently, she was sent for medical examination and

was admitted to the 100-bedded hospital. On delivery, a dead

child was born. In her cross-examination, she remained firm and

stated that the incident was taken place about 2’o clock in the

night. The accused have come from their side wall by scaling

over it to the place of offence where she was sleeping in the

courtyard. She has also cried when they were assaulting her and

at that time the bulb was lighting and she denied that she could

not identify the accused due to darkness. She has also stated

that accused Dhaniram was the first person to assault her. She

reiterated that she requested the accused persons to spare her

as she was pregnant. She has clarified that some of the accused

have assaulted her and some of them have had caught hold of

her, therefore, she has stated that all the accused have

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assaulted her and further denied that the accused have not

assaulted her. She further stated in her cross-examination that in

the night itself when she was assaulted, she felt heaviness and

realized that the child had died in the womb. When she was

taken to the 100-bedded hospital, the doctor informed them that

the child was already dead in the womb and advised that she be

immediately taken to Bilaspur. She has clearly stated in her

cross-examinaiton that she remained unconscious after the

assault for about two hours i.e. from 2:00 a.m. to 4:00 a.m. and

after that also she remained not fully conscious.

16.Evidence of PW-2 – Sukvara Bai: PW-2, the mother of the

victim, has fully supported the case of the prosecution and

remained firm in the cross examination and denied that due to

darkness in the night she could not recognize the accused. She

has stated that Balram has assaulted the victim with Baton and

Dhaniram has assaulted her with club/lathi and others had

beaten her by hands and fists. She has also affirmed that the

wall which has been crossed by the accused is above her

height. In the cross-examination she has admitted that there was

dispute with regard to land between Rajkumar, and Prahlad and

Antram.

17.Evidence of PW-3 – Pancho Bai: PW-3 is the aunt of the victim.

She has supported the prosecution case and stated that due to

assault on the abdomen of the victim, her child died in womb.

She has further stated that the police sent the victim to Kosabadi

Hospital and in the hospital sonography was conducted and the

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doctors told her that the child inside the womb was dead and

referred the victim to Hospital at Bilaspur. She has also stated

that accused have jumped the wall and assaulted the victim and

then they have made hue and cry. She has also affirmed that the

accused have kept an axe and club. She has also stated that

after assault the victim became unconscious and also informed

this fact to the police but if this fact has not been recorded in the

Ex.D/4, then it cannot be explained.

18.Evidence of PW-4 – Rajkumar: PW-4 maternal uncle of the

victim has stated that he had gone for work to village Kandra. He

returned on 27th at 3 pm, then he was informed by his nephew

Pawan that accused persons assaulted the victim until she lost

her consciousness. The victim along with Pancho Bai and a

policeman came to his house and the policeman informed him

that the child died in her womb and for operation Rs. 40,000/- is

required to be arranged and on 28

th

they will go to Bilaspur for

operation. The victim stayed at his house at night. At night, she

started crying in pain and about 3 am her labor pain intensified

and about 7 am the infant got aborted. The child was aborted

due to assault by the accused persons. After the delivery of dead

child, he informed the same to police Station. In his cross-

examination he has stated that he has come back on 27 at 3’o

clock but what has happened on 26

th

from 9 to 10 pm till 27

th

is

not known to him.

19.Evidence of PW-5 – Dr. A.N. Kanwar: PW-5, the Medical

Officer has stated that he examined the victim and found a

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contusion (12cm x3 cm) on the left side of the abdomen, a

contusion (4cm x2 cm) on the right side of the abdomen, a

contusion (11cm x3 cm) just above the navel and abrasion

(3cmx2cm) on the right hand of the victim. He opined that the

injuries were caused by the hard and blunt object. The

abrasions could have been caused by nail. The injuries were

caused within 24 hours. In cross-examination, the witness

admitted that the injuries noted could be caused if a person is

caught by four persons and assaulted on the abdominal region.

He has also admitted in his cross-examination that if a blow is

inflicted with force by a stick then only a contusion may occur,

and if the blow is inflicted with ordinary force, the mark will

disappear soon.

20.Evidence of PW-7 Dr. Veena Agrawal – : PW-7, who medically

examined victim, has stated that the victim was examined at 5

pm. She was sent for sonography and as per the sonography

report the child was dead therefore, she was referred to Bilaspur

Hospital. In her cross-examination she has stated that she did

not find any marks of assault on the abdomen of the victim.

Since, there was no movement of fetus, therefore, she has

advised for sonography and since there was no gynecologist in

the Hospital, therefore, the victim was referred to Bilaspur

Medical College.

21.Evidence of PW-8 – Dr. P.S. Kanwar: PW-8, who conducted

postmortem of the child, has given his opinion that the age of the

fetus was 6 months. There was no sign of injury on head or

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brain. Lung, Heart, Liver, Spleen and Kidney were in developing

stage, Hydrostatic test of the lung was negative, Meconium was

found in Large Intestine. There was no sign of any injury or

disease.

22.Evidence of PW-9 – Yadumani Sidar, Sub-Inspector : PW/9

who is Investing Officer has stated in his examination in chief

that he has seized the Stick vide Ex.P/6. In his cross-

examination he has stated that in FIR Dharamkunwar was not

named, she was made accused after recording of police

statement of the victim. He has also admitted in his cross-

examination that before the incident, about 2-3 months back

there was land dispute (regarding the courtyard) among the

brothers i.e. maternal uncles of the victim.

23.Evidence of Prahlad, Dharamkunwar, Dhaniram and

Balram:The accused were examined under Section 313 of the

Cr.P.C., wherein they have taken plea of false implication on the

count that with regard to the property dispute Rajkumar has

already filed criminal complaint before the Judicial Magistrate

First Class Katghora and a dispute is going on which has been

resolved by the intervention of the administration.

24.From the evidence brought on record by the prosecution it is

quite vivid that the prosecution is able to prove the ingredients of

Section 458 of the IPC as the prosecution through the evidence

of victim (PW/1), Sukvara Bai (PW/2) and Pancho Bai (PW/3)

has categorically proved that the accused by trespassing has

entered into the courtyard of the house at night at about 2’o

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clock with club about 4’ long as evident from the seizure memo

Ex.P/6 and assaulted her as corroborated by the medical report

of victim and evidence of Dr. A.N. Kanwar (PW/5) who has given

the opinion that the assault must have been committed by blunt

weapon and the injuries must be within 24 hours. The victim was

examined on 27.05.2004.

25.From the evidence of the victim’s witness PW/1 it is quite vivid

that the sworn testimony by the injured witness generally carry

significant weight. Such testimony cannot be dismissed as

unreliable unless there was pellucid and substantial discrepancy

or contradiction that undermine their credibility. If there is any

exaggeration in the deposition that is immaterial to the case,

such exaggeration should be disregarded. However, it does not

warrant the rejection of entire evidence. Therefore, the suspicion

raised by the appellants regarding the genesis of the case is

rendered unfounded.

26.The Hon’ble Supreme Court has examined the evidentiary value

of injured witness in case of Balu Sudam Khalde and Another

vs State of Maharashtra {2023 (13) SCC 365} wherein the

Hon’ble Supreme Court has held as under :-

26. When the evidence of an injured eye-witness is to be

appreciated, the under- noted legal principles enunciated by

the Courts are required to be kept in mind:-

(a) The presence of an injured eye-witness at the time and

place of the occurrence cannot be doubted unless there

are material contradictions in his deposition.

(b) Unless, it is otherwise established by the evidence, it

must be believed that an injured witness would not allow

the real culprits to escape and falsely implicate the

accused.

(c) The evidence of injured witness has greater evidentiary

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value and unless compelling reasons exist, their

statements are not to be discarded lightly.

(d) The evidence of injured witness cannot be doubted on

account of some embellishment in natural conduct or

minor contradictions.

(e) If there be any exaggeration or immaterial

embellishments in the evidence of an injured witness, then

such contradiction, exaggeration or embellishment should

be discarded from the evidence of injured, but not the

whole evidence.

(f) The broad substratum of the prosecution version must

be taken into consideration and discrepancies which

normally creep due to loss of memory with passage of time

should be discarded.

27.The learned counsel for the appellants would submit that the

learned trial Court has committed illegality in convicting the

accused with the aid of Section 34 of the IPC without any

evidence brought on record by the prosecution that the accused

have committed the said offence in furtherance of common

intention. He would further submit that the victim itself deposed

before the trial Court that all the accused alleged to have

committed different set offence, still, committed illegality in

imposing sentence upon all the accused with the aid of Section

34, is being considered by this Court.

28.From the evidence of the victim as well as PW-2 and PW-3, it is

manifest that the accused persons, acting in furtherance of their

common intention, assaulted the victim. Presence of all the

accused at the scene substantially facilitated the successful

commission of the offence. The act was carried out pursuant to a

pre-arranged plan, and the commission of the offence would not

have been possible without the aid and participation of the other

accused. It is well settled that for fastening liability with the aid of

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Section 34 of the IPC, each accused must participate in the

commission of the offence in some manner, which stands duly

established in the present case. Consequently, the submission

advanced by the learned counsel for the appellants that all the

accused cannot be convicted with the aid of Section 34 IPC is

misconceived and is liable to be rejected. It is well settled

position of law that element of participation in the commission of

offence, is the chief feature that distinguishes Section 34 IPC

from Section 149 IPC and other Sections. The Hon’ble Supreme

Court in case of Vasant @ Girish Akbarasab Sanavale and

Another vs. The State of Karnataka {2025 INSC 221} has

examined the provisions of Section 34 of the IPC as under:-

86. It is true that to convict any particular accused

constructively under Section 34 of an offence, say of

murder, it is not necessary to find that he actually struck

the fatal blow, or any blow, but there must be clear

evidence of some action or conduct on his part to show

that he shared in the common intention of committing

murder”, (pp. 457-458).

87. The net result of the above discussion is that although

Section 34 deals with a criminal act which is joint and an

intention which is common, it cannot be said that it

completely ignores or eliminates the element of personal

contribution of the individual offender in both these

respects.

88. On the other hand, it is a condition precedent of

Section 34, IPC, that the individual offender must have

participated in the offence in both these respects. He must

have done something, however slight, or conduct himself

in some manner, however nebulous whether by doing an

act or by omitting to do an act so as to indicate that he was

a participant in the offence and a guilty associate in it. He

must also be individually a party to an intention which he

must share in common with others.

89. In other words, he must be a sharer both in the

‘criminal act’ as well as in the ‘common intention’ which are

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the twin aspects of Section 34, IPC. In view of the above

position, it is difficult for the accused to legitimately urge

before the Court that owing to the mention of Section 34,

IPC, in the charge, he was misled or prejudiced in his

defence by being persuaded to presume that all

consideration of his individual liability was completely shut

out as a result thereof. He would be presumed to know the

law on the point and if, in spite of it, he deluded himself

into any such belief, he would be doing so at his own peril.

[See: Om Prakash(supra)]

90. As held by this Court in Suresh Sakharam Nangare v.

The State of Maharashtra, 2012 (9) Judgements Today

116, if common intention is proved but no overt act is

attributed to the individual accused, Section 34 of the code

will be attracted as essentially it involves vicarious liability

but if participation of the accused in the crime is proved

and common intention is absent Section 34 cannot be

invoked. In other words, it requires a pre-arranged plan

and pre supposes prior concert therefore there must be

meeting of mind.

29. The learned trial Court, on the basis of the evidence of the victim

and other prosecution witnesses, has categorically recorded a

finding in paragraph 50 that the accused persons entered the

house of the victim at midnight and assaulted her. Consequently,

the prosecution has successfully proved all the essential

ingredients required to constitute the offence under Section 458

of the IPC, namely, criminal trespass, house-trespass, and

lurking house-trespass by night, which are sine qua non for

attracting punishment under the said provisions. Further, as the

accused also caused hurt to the victim, the learned trial Court

has convicted them for the offence under Section 323 of the IPC.

This finding stands duly corroborated by the medical evidence of

Dr. A.N. Kanwar (PW-5), who conducted the medical

examination of the victim. Thus, all the requisite ingredients of

the offences are clearly established before the learned trial

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Court, therefore, the finding of the learned trial Court holding the

accused guilty for the offences punishable under Sections 458

and 323 read with Section 34 of the IPC does not suffer from any

perversity or illegality warranting interference by this Court. As

such, the impugned judgment of conviction passed by the

learned Sessions Judge, Korba in Sessions Trial No. 28/2004 is

hereby affirmed.

30.However, so far as the sentence part is concerned, considering

the long pendency of the case and taking into account that

accused No. 2 Prahlad is presently aged about 75 years,

accused No. 3 Dhani Ram is aged about 52 years, and accused

No. 4 Balram is aged about 50 years, further considering the fact

that this is their first offence and no past criminal antecedents of

the appellants have been brought on record by the prosecution,

and also considering that the appellants are on bail and have not

misused the liberty so granted, as well as the fact that no

minimum sentence is prescribed under Section 458 of the IPC,

therefore, this Court is of the opinion that ends fo justice would

be served if the sentence imposed upon each appellant is

reduced to rigorous imprisonment for a period of one year and

the fine imposed under Section 458 of the IPC is enhanced to

₹5,000/- for each appellant, and the fine under Section 323 of

the IPC is enhanced to ₹2,000/- for each appellant, which shall

be paid to the victim as compensation in terms of Section 357(3)

of the Cr.P.C.

Page 20 of 20

31.The appellants are directed to deposit the fine amount before the

trial court within a period of three months from the date of this

judgment. In default of payment of fine, they shall undergo

additional simple imprisonment for a period of one month. The

appellants are further directed to surrender before the concerned

trial Court within a period of three months to serve out the

remaining part of their sentence after giving set-off of the period

of 1½ months already undergone by them during trial as well as

after conviction prior to their release on bail by this Court, failing

which the trial Court shall take appropriate steps to secure their

custody in accordance with law.

32.Accordingly, the Criminal Appeal stands partly allowed in terms

of the aforesaid modification, whereby the substantive sentence

has been reduced and the fine amount has been enhanced.

33.As, the appellants are reported to be on bail, their bail bonds

stand cancelled in view of the provisions of Section 480 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Sd/-

(Narendra Kumar Vyas)

Judge

kishore