A charge under Section 457 of the Indian Penal Code must be substantiated by evidence and cannot be assumed from nothing. The mere presence of a person inside the house of another would not establish a case of house-breaking.

JUDGEMENT

The petitioner stands convicted under Sections 457 and 380 of the Indian Penal Code (for short, 'the Code') and has been sentenced under the first mentioned section to undergo rigorous imprisonment for a period of two years and under the latter section to undergo rigorous imprisonment for a period of one month and to pay a fine of Rupees 500/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months with a direction that the substantive terms of imprisonment would run concurrently. The order of conviction recorded by the trial Court has been maintained by the appellate Court.

2. The petitioner, it was alleged, committed house-breaking and entered into the dwelling house of Tonkodhara Khillar (P. W. 2) and committed theft of clothes during the night of the 10th July, 1980. He had then an iron instrument and a torchlight with him. He was caught and a report was lodged at the Papdadandi Police Station.

Investigation followed and on its completion, a charge-sheet was placed and the petitioner was prosecuted being charged under Sections 457 and 380 of the Code. To bring home the charges, the prosecution had examined five witnesses. The petitioner had pleaded not guilty to the charges and had denied the accusations made against him.

3. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the State.

4. There was no evidence whatsoever that the petitioner had committed theft of clothes from inside the house. Merely because some clothes were lying outside at a time when the petitioner was caught inside the house, it could not be assumed that he was the author of the crime of theft of clothes from the dwelling house of P. W. 2.

5. As for the offence of house-breaking, it is noticed that neither the trial Court nor the appellate Court had found out as to whether the petitioner had made entry into the house in any of the six ways enumerated in Section 445 of the Code. This section defined house-breaking. As has been submitted at the Bar there was absence of proof that the petitioner had made his entry into the house in any of the six ways mentioned therein.

6. In the judgment, the learned Magistrate had formulated the points for determination thus: -

"(i) Whether on the alleged occurrence night the accused had entered into the dwelling house of the informant after the hour of sunset and before the hour of sunrise in order to commit theft? and

(ii) Whether at the material point of time the accused had removed one printed Sari, one Dhoti, one banian and one spade from the house of informant with dishonest intention?"

It is, therefore, apparent that the commission of an offence of house-breaking had not been kept in mind while formulating the points for determination. After examining the evidence, the trial Court found:

"From the consistent evidence of the prosecution witnesses as indicated above I find that there is ample evidence to come to a conclusion that on the date of occurrence the accused had entered into the house of the informant with a torch light and iron rod (Sindhi Kathi) to commit theft and he had committed the theft of one printed Sari, one Dhoti, one banian, one spade from the house of the informant. In view of the above facts I find that the prosecution has successfully established its case against the accused beyond all reasonable doubts. Accordingly I hold the accused guilty under Section 457/380 of the Indian Penal Code and convict him thereunder. ......"

It is thus apparent from this finding that the trial Court did not reach a conclusion that the petitioner had committed the offence of house-breaking. The appellate Court did no better. No specific finding sustained by reasons was recorded by the appellate Court that the petitioner had committed the offence of house-breaking. When a culprit is found to have entered the house of another, it cannot be assumed, in the absence of other evidence, that he had committed house-breaking. A charge