( 1 ) THE appellants, having been found guilty of offences under sections 147, 323i 149 and 458, I. P. C. and sentenced to 3 months and one years R. I. , respectively, on each count by judgment dated 27-5-1982, passed by the Special Judge. Damoh, in Special Criminal Case No. 43 of 1981, have preferred this appeal challenging their aforesaid conviction and sentence.

( 2 ) THE prosecution case against the appellants was that on 2-10-1981 they trespassed into the house of complainant Jagdish (P. W. 1) and used force against him and his mother Indrani. It was also alleged that they threatened Indrani to kill and on that threat, took out a box containing ornaments and Rs. 1. 000/. The report of the incident was lodged on 4-10-1981 (Ex. P-i), on the basis of which F. I. R. (Ex. P-2) was recorded at 8-30 p m. on that date. The learned Judge did not find any evidence of dacoity and acquitted them of offences relating to the same. The learned Judge, however, found that the appellants were guilty of entering into the house, breaking open the doors and causing injuries. That is how the appellants have been convicted and sentenced.

( 3 ) THE complainant and the appellants have filed an application under section 320 (5), Cr. P. C. seeking permission of the court to compound the offences. This application i. e. I A. No. 311/85, was take n on record on 8-2-1985 and directed to be considered at the time of final hearing of the appeal. Offences punishable under sections 147 and 458, I. P. C. are not compoundable and, therefore, this application cannot be allowed in respect of these offences. Offence under section 323, I P. C. is, however, compoundable and, therefore, this application may be allowed in respect of this offence. The learned counsel, however, submitted that the prosecution case in relation to sections 147 and 458. I. P. C. is prima facie not maintainable and, therefore, the compromise application may be considered only after considering their appeal in relation to these offences.

( 4 ) SUBMISSION of the learned counsel is that in the context of evidence of P. W. 1 Jagdish that the appellants entered into the house not stealthily but boldly by breaking open the three doors, no offence under section 458, I P. C. can be said to have been committed. It is further submitted that evidence of P. W. 1 Jagdish does not inspire confidence in the context of evidence of P. W. 2 Narayan, who is neighbour and denies having seen any incident. It is further submitted that the evidence of interested witnesses is not sufficient to justify conviction of the appellants. Further submission is the F. I. R. has been lodged with undue delay, which remains unexplained and, therefore, causing doubt about the entire story. ( 5 ) AS far as offence under section 458, I. P. C. is concerned, the same consists of lurking house trespass or house breaking by night after preparation for hurt etc. The incident had taken place in the night and injuries have been caused on Jagdish and Indrani. Under the circumstances, only question for consideration is: whether lurking house-trespass was committed by the appellants so as to bring their act within the purview of section 458, I. P. C. ? Lurking house-trespass is a trespass with precautions to conceal the same from some person who has a right to exclude or eject the trespasser from the house (see section 443, I. P. C. ). In the context of the facts of the present case, it will have to be established that the appellants had made preparation or had taken some precautions to conceal their house-trespass from Jagdish (P. W. 1) who is the owner of the house. The essence of lurking house-trespass apparently is the precaution to conceal the act. Evidence of Jagdish, when considered in this context, clearly indicate that this necessary ingredient is missing. Jagdish, in para 2 of his statement in the Court, has deposed that the appellants came to his house abusing him and entered into the same by breaking open th