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1981 Supreme(Ori) 214
IN THE HIGH COURT OF ORISSA
R.N. Misra, J.
GANGADHAR JENA AND OTHERS - APPELLANT
Versus
STATE OF ORISSA - RESPONDENT
Criminal Revision No. 144 of 1980
Decided On : 27-08-1981
G. Bohidar and S.K. Mund, for the Appellant; Standing Counsel, for the Respondent
The central legal point established in the judgment is that for a conviction under Section 457 of the Indian Penal Code, the lurking house trespass must have been committed with the intention of committing an offense punishable with imprisonment. Additionally, the judgment emphasizes the importance of establishing strong evidence to support a conviction.
Headnote:
Indian Penal Code - Lurking House Trespass - The court considered the provisions of Section 457 of the Indian Penal Code, which defines lurking house trespass and its punishment. The court analyzed the evidence and concluded that the conviction under Section 457 could not be sustained due to the failure to establish the intention of committing theft. The court also deliberated on the possibility of convicting the petitioners for another offense but found the evidence of house trespass weak, leading to the setting aside of the conviction and sentence under Section 457.
Fact of the Case:
The petitioners were charged with offenses under Sections 457, 380, and 323 of the Indian Penal Code. The trial court convicted them for all three offenses, but the appellate court set aside the convictions under Sections 323 and 380, sustaining the conviction under Section 457. The revision application questioned the propriety of the conviction under Section 457 when the convictions on the other two counts had been set aside.
Finding of the Court:
The court analyzed the evidence and found that the conviction under Section 457 could not be sustained due to the failure to establish the intention of committing theft. The court also deliberated on the possibility of convicting the petitioners for another offense but found the evidence of house trespass weak, leading to the setting aside of the conviction and sentence under Section 457. The revision application was accordingly accepted, and the conviction and sentence under Section 457 were set aside.
Issues: The issues involved the conviction of the petitioners under Section 457 of the Indian Penal Code and the propriety of such conviction when the convictions on the other two counts had been set aside.
Ratio Decidendi: The court held that for the act to come within the ambit of Section 457, Indian Penal Code, it is necessary that the lurking house trespass should have been committed with a view to commit an offense punishable with imprisonment. As the charge for theft had failed, the conviction under Section 457 could not be sustained. The court also considered the possibility of convicting the petitioners for another offense but found the evidence of house trespass weak, leading to the setting aside of the conviction and sentence under Section 457.
Final Decision: The revision application was allowed, and the conviction of the petitioners under Section 457 of the Indian Penal Code, as well as the sentence imposed, was set aside.
JUDGMENT :
R.N. Misra, C.J. - The Petitioners, 2 in number, were charged for offences under Sections 457, 380 and 323, Indian Penal Code. A common charge has been framed against all of them to the following effect:
First - That you, on or about 15-4-1973 (for 1974) at Hadmanda, committed lurking house trespass by night by entering in to the house belonging to the informant and used as a human dwelling after sunset and before sunrise in order to commit theft and thereby committed an offence punishable u/s 457 of the Indian Penal Code and within my cognizance.
Secondly - That you Bimbadhar Jena and Gangadhar Jena, on or about the same time and place, voluntarily caused hurt to Bhagaban Jena and thereby committed an offence punishable u/s 323 of the Indian Penal Code and within by cognizance.
Thirdly - That you, Gadadhar Jena, on or about the same time and place voluntarily caused hurt to Kartik Pani, Bhanu Jena and Dibakar Giri by means of a knife which is an instrument for stabbing and thereby committed an offence punishable u/s 324 of the Indian Penal Code and within my cognizance.
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2. The trial Court convicted all the three accused persons for all the 3 offences and sentenced each of them to R.I. for six months and to pay a fine of Rs. 100/- with a default sentence of 15 days each u/s 457, Indian Penal Code and to pay a fine of Rs. 100/-, in default, simple imprisonment for 20 days u/s 323, Indian Penal Code. No separate sentence was imposed u/s 380, Indian Penal Code.
3. The learned Sessions Judge on appeal came to hold that the offences under Sections 323 and 380, Indian Penal Code had not been established. He accordingly set aside the conviction under those counts and sustained the conviction u/s 457, Indian Penal Code. The sentence of six months R.I. for each of the Petitioners under that section was sustained, but the imposition of fine was set aside.
4. This revision directed against the appellate decision calls in question the propriety of there conviction u/s 457 Indian Penal Code when the conviction on the other two count has been set aside.
5. Section 457 of the Indian Penal Code provides:
Whoever commits lurking house trespass by night or house-breaking by night, in order to the committing of any offence punishable with imprisonment shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft the term of the imprisonment may be extended to fourteen years.
"Lurking house trespass" has been defined in Section 443 of the Code to mean
Whoever commits house trespass having taken precautions to conceal such house trespass from such person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house trespass.
Whoever commits lurking house trespass after sunset and before sunrise is said to commit lurking house trespass by night as indicated in Section 443, Indian Penal Code. In order that the act may come within the ambit of Section 457, Indian Penal Code, it is necessary that the lurking house trespass should have been committed with a view to commit an offence punishable with imprisonment. The charge in the instant case was that the lurking house trespass was with the intention of committing theft. There was a charge for theft which has failed. Therefore, even if trespass had been committed, the conviction u/s 457, Indian Penal Code cannot be sustained.
6. The next question for consideration is-Can the Petitioners be convicted for some other offence?
Admittedly, lurking house trespass is a serious offence. There are several other provisions where lurking house trespass is made punishable. Section 453, Indian Penal Code, provides:
Whoever commits lurking house trespass or house-breaking, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable
