The main legal point established in the judgment is the interpretation and application of the elements of house-trespass and house breaking under the Indian Penal Code, and the consideration of the petitioner's sentence in light of the time already served and payment of the fine.

Sanjeev Sachdeva, J.

Petitioner impugns judgment dated 17.09.2016 whereby the Appellate Court has dismissed the appeal of the petitioner impugning order on conviction dated 26.04.2016 and order on sentence dated 05.05.2016. Petitioner has been convicted of an offence under Section 380 and Section 454 Part II of the Indian Penal Code and sentenced to undergo 2 years imprisonment with fine of Rs. 5000/- in default 3 months SI for the offence under Section 380 IPC and RI for 3 three years and fine of Rs. 5000/-, in default 3 months SI for the offence under Section 454 para II. Both sentences to run successively

2. The subject FIR was registered on the complaint of one Kaushik Ganguly (examined as PW-1 before the Trial Court) who contended that he had locked his house while going out and on return found the door of the balcony open. When he ran towards the balcony he saw one person jumping from the balcony and running away. When he raised an alarm some passers by caught the said person. From the possession of the said person property of the complainant inter-alia documents, fast track watch, Nokia mobile were recovered. Said person is stated to be the Petitioner.

3. Learned counsel for the petitioner inter-alia contends that the Trial Court as well as the Appellate Court have erred in not appreciating that no offence under Section 454 IPC is made out as the ingredients of Section 443 IPC are not made out.

4. Learned counsel submits that petitioner has already undergone 3 years 10 months and 20 days of incarceration as on 06.02.2019 and earned remissions of 9 months and 25 days and the remaining portion of sentence is 9 months and 7 days (if fine paid as on 06.02.2019).

5. Pw.1 Kaushik Ganguly in his evidence before the Trial Court has inter-alia stated as under:-

"On 08.03.2015 at about 6:00 PM I had locked my house and at about 6:30 PM when I returned back I saw that the door of balcony of my house was open. I immediately ran towards the balcony and saw that one person jumped from the balcony and was running. I raised alarm and immediately went down and saw that some passerby had caught the said person (Accused is present in the court today and correctly identified by the witness).

Some public person had also gathered at the spot. Accused was carrying a bag and on checking the same it was found containing one remote of my Tata Sky, photocopies of some documents, my fastrack watch, my Nokia mobile of black colour, my candle stand which were stolen by him and some other documents and articles. On inquiry, the name of accused was revealed as Lokesh."

6. Section 443 IPC reads as under:-

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 tres-pass, is said to commit "lurking housetrespass".

7. In terms of Section 443 for a person to commit lurking housetrespass, 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.

8. Statement of PW-1 shows that when he returned he saw the door of the balcony of the house open which establishes that there was no attempt made by the petitioner to conceal the house-trespass. Since there is no evidence to show that petitioner had not taken any precaution to conceal the house trespass, so the offence of lurking house trespass is not made out.

9. However, when we look at Section 445 - House breaking, which is also punishable under section 454 IPC, it is clear that the said offence is made out. Section 445 IPC reads as under:-

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 de-scribed; or if, being in the house or any pa