The prosecution must prove the accused's intention to commit theft or an offence punishable with imprisonment in cases of lurking house trespass by night or house-breaking by night under S. 457, I. P. C.

SUNIL KUMAR GARG, J.

( 1 ) THIS appeal has been filed by the State of Rajasthan against the judgment and order dated 25-4-1988 passed by the learned Judicial Magistrate, 1st Class, Churu by which the learned Judicial Magistrate acquitted the accused-respondent for offence under S. 457, I. P. C.

( 2 ) THIS appeal arises in the following circumstances :i) On 14-1-1985 at 1. 15 a. m. P. W. 3 Charandas lodged an oral report with the police station, Churu stating that in the night of 13-14-1-1985, he was sleeping in his house situated in Ward No. 8 Churu and his son Dharam Pal, P. W. 2 and his wife P. W. 4 Shakuntala were also sleeping in their Kotha. At about 12. 30, the accused-respondent after jumping the wall entered the room in which P. W. 2 Dharampal was sleeping along with his wife P. W. 4 Shakuntala and seeing him P. W. 2 Dharampal and P. W. 4 Shakuntala made hue and cry and hearing their cries, he came to that room and P. W. 5 Unkar Mal and P. W. 1 Kewal Ram also came there and accused-respondent was caught hold by them and thereafter he was also produced in the Police Station.

( 3 ) ON this report, police chalked out regular FIR Ex. P/1 and started investigation and during investigation, the accused-respondent was got medically examined by D. W. 1 Dr. B. L. Soni and his injury report is Ex. D/5 which shows that he received 13 injuries on his person.

( 4 ) THROUGH Fard Ex. P/3, the accused-respondent was arrested on 17-1-1985.

( 5 ) THAT after usual investigation, police submitted challan against the accused-respondent for offence under S. 457, I. P. C.

( 6 ) ON 17-2-1986, the learned Magistrate framed charges for offence under S. 457, I. P. C. against the accused-respondent who pleaded not guilty and claimed trial.

( 7 ) DURING trial, as many as 6 witnesses have been produced on behalf of the prosecution and statement of accused-respondent was recorded under S. 313, Cr. P. C. and 3 witnesses were examined in defence.

( 8 ) AFTER conclusion of the trial, the learned trial Magistrate acquitted the accused-respondent through his judgment and order dated 24-5-1988 inter alia holding :i) Though there is evidence that the accused-respondent was found in the house of P. W. 3 Charandas, but for what purpose he entered the house, it has not been proved by the prosecution, though the charge which was framed against the accused-respondent was framed that he entered the house for the purpose of committing theft. II) That the accused-respondent received 13 injuries, but the prosecution has not explained as to how he received injuries. III) That since the accused-respondent was neighbour of P. W. 3 Charan Das and his house was in front of the house of P. W. 3 Charandas, therefore, the prosecution has not been able to prove for what purpose he was found in the house of P. W. 3 Charandas.

( 9 ) AGGRIEVED from the said judgment and order this appeal has been filed by the State.

( 10 ) IN this appeal, it has been argued by the learned P. P. that from the statements of P. W. 2 Dharampal, P. W. 3 Charandas and P. W. 4 Shakuntala, the case of prosecution that the accused-respondent entered the house for the purpose of committing theft is proved, therefore, it has been prayed that this appeal should be allowed and the accused-respondent should be convicted for offence under S. 457, I. P. C.

( 11 ) ON the other hand, the learned counsel for the accused-respondent submits that the judgment and order of the trial Magistrate are based on correct appreciation of evidence and the same do not call any interference by this Court.

( 12 ) I have heard both and perused the record.

( 13 ) TO prove the charge for offence under S. 457, I. P. C. the prosecution has to prove following two facts :i) that the accused committed lurking house trespass by night, or house-breaking by night;ii) that the same was committed to commit theft or an offence punishable with imprisonment.

( 14 ) THE learned Judicial Magistrate has found Point No. 1 prove