The central legal point established in the judgment is the interpretation and application of provisions related to criminal trespass, house-trespass, lurking house-trespass, and house-breaking. The court emphasized the intent to commit an offense, assault, and the use of criminal force in determining the conviction under Section 457 and Section 323 of the Indian Penal Code.

JUDGMENT

Sujit Narayan Prasad, J. - The instant appeal is against the judgment and order dated 01.12.2008 and 05.12.2008 passed by the Additional Sessions Judge, FTC-VII, Giridih in Sessions Trial No.152/2008 (T.R.No.49/2008), corresponding to Gawan P.S. Case No.1/2008 registered for the offence under Sections 376(2)(g)/323/34 of Indian Penal Code, whereby and whereunder, the appellants have been convicted for the offence under Sections 457 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years for commission of offence under Section 457 of Indian Penal Code and one year for commission of offence under Section 323 of Indian Penal Code which shall run concurrently.

2. The prosecution story in brief as per the FIR registered on 05.01.2008 is that in the night on 04.01.2008, Sunita Kumari informant, while sitting in her house along with her mother, father, sister and brother at about 11:30 p.m., some sound has been given by a man for opening the door and started beating the door for opening, when the door was not opened, they have broken the door. At that time, there was light from lantern, on this light, three persons have been seen, upon which, face of one person was seen whose name was Doman Sao, who has been identified and face of two persons was covered and as such, they could not have been recognized. Thereafter, all the three persons have caught hold of her mother and father and taken them out from their house and started assaulted them from fists. Thereafter, the informant and her sister have been taken out from the house but somehow her sister had fled away but they have caught hold of the informant and taken her in the east side of the house and near a well. They have fallen her down and then Doman Sao has committed rape. At that time, two persons have caught hold of her face and when she has tried to flee away but they have not let her to go and again both the persons have committed rape and also assaulted, thereafter threatened her that if she will make noise, she will be assaulted with knife. All the three persons have closed her mouth with handkerchief and started dropping in the well by saying her that if she will make any noise she will be dropped in the well and thereafter they after leaving near her house had fled away, then she has disclosed the occurrence to her mother and father, then it was reported to the Police.

3. The FIR has been instituted for the commission of offence under Sections 376(2)(g)/323/34 of Indian Penal Code, accordingly, investigation has been started by the Police, charge-sheet has been submitted for the offence under Sections 376(2)(g)/323/34 of Indian Penal Code. The Magestrial Court has taken cognizance has committed the case before the Court of Sessions, wherein, charges have been framed against the appellants for the offence under Sections 450/323/376(2)(g) of Indian Penal Code, appellants after defending the guilt was subjected to trial. The prosecution has examined the witnesses and also exhibited the documents, thereafter has acquitted the appellants for offence under Sections 376(2)(g) and 450 of Indian Penal Code held them guilty for the offence under Sections 457/323 of Indian Penal Code and accordingly inflicted sentence upon them. The aforesaid judgment is under appeal.

4. Mr. Anil Kumar Sinha, learned counsel for the appellants while assailing the aforesaid judgment has taken the following grounds:-

(i) There is no ingredient of Section 457 of Indian Penal Code, since there is no evidence having been brought on record with respect to the lurking house-trespass and therefore the conviction for commission for the offence under Section 457 is bad in law;

(ii) He has tried to impress upon this Court by referring to the provision of Sections 441, 442, 443 and 445 and has submitted that there is no ingredient of commission of offence of lurking house-trespass, as per the ingredients contained under Section 457 of Indian Penal Code as because