Judgment

Narasimham, C J

[1] This is a revision petition against the appellate judgment of the Sessions Judge of Cuttack maintaining the conviction and sentence passed by a First Class Magistrate of Kendrapara against the petitioner for an offence under Section 456 of the Indian Penal Code.

[2] The petitioner is a Matriculate, aged about 22 years, residing in village Kusunapur, P. S. Patkura. He was prosecuted in the Court of the 1st. Class Magistrate of Kendrapara on the allegation that he entered the dwelling house of one Domei Naik (P.W.I) of his village at about 3 A.M. on the 22nd March 1954 and committed theft of some utensils. Domei Naik woke up on hearing some noise, and claimed to have seen the petitioner with the stolen utensils. He challenged him and then the petitioner tried to conceal himself in the kitchen where there was a fight between him and Domei in the course of which both of them received injuries. The petitioner, however succeeded in running away from the place. On these allegations a charge under Section 457 , Indian Penal Code, and another under Section 392 , Indian Penal Code, were framed against the petitioner. In the charge under Section 457 , Indian Penal Code, it was expressly stated that the petitioner entered the dwelling house of Domei Naik with the intention of committing robbery, The trial Court, however, after a full discussion of the evidence held that the story about theft of utensils could not be believed. He therefore acquitted him of the charge under Section 392 , Indian Penal Code. Nevertheless he found that the petitioner entered the dwelling house of Domei Naik with the intention of committing some other offence or of insulting or annoying P.W. 1 who was in possession of the same. He therefore, reduced the offence under Section 457 , Indian Penal Code to one under Section 456 , Indian Penal Code, and sentenced the petitioner to-undergo rigorous imprisonment for 6 months. On appeal the learned Sessions Judge practically affirmed the finding of the Magistrate, though not in very clear terms. He observed that though the entry into the house was not for the purpose of committing theft or robbery, it may be reasonably presumed, from the circumstances, that the entry had been made with such an intent as was provided in Section 456 , Indian Penal Code.

[3] The petitioner, however, completely denied the incident and alleged that he was the victim of a false charge on account of previous enmity. He never took the plea that he entered the house for some other purpose. But during the hearing of the appeal by the Sessions Judge an argument was advanced that he might have entered the house with an immoral motive, towards some inmates of the house. The learned Sessions Judge, however, negatived this contention as belated and fantastic.

[4] Mr. Pal on behalf of the petitioner urged that in view of the charge, as framed against the petitioner under Section 457 , Indian Penal Code, the two lower Courts committed an error of law in convicting the petitioner under Section 456 . The findings of both the Courts as regards the intention with which the entry was effected Inside the house of P.W. 1. is clearly unsatisfactory. They have held that the entry was not made for the purpose of committing theft as specified in the charge. They have not further held that the entry was made with any particular intention. They have simply said in a general way that the entry must have been made with the intention of committing an offence, or with a view to insult or annoy P.W. 1 who was in possession of the house. Such a finding will not suffice to sustain a charge under Section 456 , Indian Penal Code. On the facts found a Court must come to a definite inference as to what was the particular intention with which the entry was effected. If the intention was to annoy the inmates such a finding should be clearly mentioned in the Judgment. If, on the other hand, the intention was to commit some other offence such as