The distinction between lurking house trespass and house trespass under Sections 458 and 452 of the Indian Penal Code.

1. - By his judgment dated 10.1.1995, the learned Judicial Magistrate, Pillibanga convicted the petitioner No. 1 Ram Kumar for the offences under Secs. 458, 324, 323 and 326 read with 34 I.PC. and petitioner No. 2 Sahib Ram for the offences under Section 458, 326, 323 and 324 read with 34 I.RC. in Cr. Case No. 487/92 and sentenced to various terms of imprisonment and fine. The petitioners preferred appeal which was decided on 20.3.1999 by the learned Additional Sessions Judge No. 2, Hanumangarh whereby the conviction of the petitioners was maintained for the offence under Secs. 458, 324 read with 34 I.RC. and the conviction and sentence for the offence under Section 326 and 326 read with 34 I.RC. was set-aside. Aggrieved by the aforesaid conviction, the petitioners have filed this revision petition.

2. Briefly stated the prosecution case is that Smt. Sampat daughter of the complainant Muriidhar was married to petitioner Ram Kumar. But their relations became strained and a case under Section 498-A I.RC. was pending against Ram Kumar. On 10.3.1992 Smt. Sampat was staying at the house of her parents. It is alleged that the petitioners entered In the house by opening the window in the main gate and lifted the daughter of the complainant Smt. Sampat. When Muriidhar protested, Ram Kumar petitioner inflicted injuries by knife to Mgrlidhar and also caused injuries to Smt. Sampat. The police submitted charge-sheet after investigation and the petitioners faced the trial which ended in their conviction as stated above.

3. I have gone through the evidence on record and also heard the arguments advanced by the learned counsel for the petitioners and the learned Public Prosecutor. It is vehemently contended that the offence under Section 458 I.RC. is not proved at all by the statements of Smt. Sampat and the complainant Muriidhar because there is no evidence to show that the petitioners committed lurking house trespass or house breaking, as alleged by them. There is material contradictions and improvements in the statements of the complainant with regard to the manner of committing the alleged trespass vis a vis the F.I.R. and statement under Section 161 Cr.RC. The complainant Muriidhar has completely improved his version by stating that the petitioners came by scaling down the wall of the Bada.

4. I have perused the statement of complainant Muriidhar who has deposed that the petitioners came after jumping over the gate. In his statement under Section 161 Cr.RC. marked Ex.D-1, he stated to the police that the petitioners came through the small window in the main gate. This fact is also stated by him in the F.I.R. which has been lodged by him on the same day at 10.15 PM. soon after the occurrence. He has denied to have stated to the police portion A to B in Ex.D-1 but this explanation is not acceptable and I am inclined to agree with the learned counsel for the petitioners that to this extent the complainant has improved or exaggerated his statement with regard to the manner of committing the trespass by the petitioners. Therefore, I find no evidence on record to establish any act of lurking house trespass or house breaking on the part of the petitioners. However, it is proved that the petitioners entered the house through the small window of the main gate. In view of this position, the offence under Section 452 I.RC. is proved instead of Section 458 I.RC. because the petitioners committed trespass in the house of the complainant to commit an offence after making preparation to cause hurt by arming themselves with knife.

5. I have gone through the whole evidence on record and the impugned judgments. I am of the view that the offence under Secs. 452 and 324 read with 34 I RC. is proved beyond reasonable doubt against the petitioners and there is no reason to disturb their conviction for these offences.

6. It was then argued that the case relates to the year 1992, almost seven years have lapsed. The petitioner Ram Kumar is son-in-law of th