( 1. ) THIS appeal by the State is directed against an order of the Additional District Magistrate (J), Narsimhapur, dated 23-5-1969 acquitting the respondent of an offence under Section 457 of the Indian Penal Code.

( 2. ) THE facts, briefly, are these: On the night of 7-2-1969, at about 2 A. M. or thereabout, the respondent effected an entry into the house of the complainant, Prithwiraj (PW 1), by opening a lock of the kotha, while he with his brother Bi-ran had gone to the village for singing Fag, At the time, his mother Mst. Pachhobai (PW 2) was sleeping in the dehlan along with her daughter-in-law Mst. Shyambai wife of Biran (PW 3) and her daughter, Mst Pachhobai (P. W. 2) had apparently locked the kotha and placed the bey on a bracket in the dehlan. On hearing some noise in the kotha, she was aroused from sleep and found that there was an intruder in the house. The respondent had effected an entry into the kotha by opening the lock. When she saw the respondent, she had the presence of mind and raised an alarm, but the respondent tried to escape. On hearing her outcry, her unclein-law Khumansingh (PW 4) who fives across the road, pursued the respondent and caught him in front of Rewarams house.

( 3. ) THE respondent was charged with the commission of an offence under Section 457 of the Indian Penal Code. The gravamen of the charge was that he committed the offence of lurking house trespass by night with intent to commit theft. The defence was a complete denial of the incident. There was, however, a suggestion made during the cross-examination of Mst. Shyambai (PW 3), sister-in-law of the complainant, that the respondent had effected an entry into the house at her invitation, i. e. , with the object of committing adultery. The learned Magistrate hag disbelieved the prosecution case and given the respondent a benefit of doubt, observing that the defence suggestion that the respondent had entered the house at the invitation of Mst. Shyambai (PW 3) to commit sexual intercourse with her may be true and, therefore, the entry upon the premises was not unlawful, much less was it a criminal offence.

( 4. ) THE order of acquittal recorded by the learned Magistrate is wholly perverse and has resulted in manifest miscarriage of justice. If the respondent had effected an entry into the complainants house at the invitation of Mst. Shyambai (PW 3), his sister-in-law, then, on his own showing, he committed house-trespass with the intention of committing adultery, an offence punishable under Section 456 of the Indian Penal Code. The acquittal of the respondent is, therefore, apparently illegal and unwarranted.

( 5. ) THE learned Counsel for the respondent, however, strenuously contends that the accused having been tried on a charge under Section 457 on the allegation that he committed house-trespass with intention to commit theft, cannot at this stage be convicted of house-trespass, committed with a different intention, namely, to commit the offence of adultery, an offence punishable under Section 456. There is no substance in the contention.

( 6. ) IT is well-settled that to sustain a conviction under Section 456 of the Indian Penal Code, it is not necessary to specify the criminal intention in the charge as it should be in a charge under Section 457; it is sufficient if a guilty intention is proved, such as is contemplated by Section 441 of the Indian Penal Code. (See Kailash Chandra v. Queen Empress (1889) ILR 16 Cal 657, Balmakand Ram v. Ghansamram (1895) ILR 22 Cal 391, Premanundoo Shah v. Brindabun Chung (1895) ILR 22 Cal 994, Karali Prasad v. Emperor (1916) ILR 44 Cal 358 : 17 Cri LJ 422, Emperor v. Ishri (1907) ILR 29 All 46, Mohammad Nasiruddin v. King Emperor (1925) ILR 4 Pat 459 : 26 Cri LJ 954, Mohammad Yar v. Crown ILR (1938) 19 Lah 462 : 39 Cri LJ 734 (FB) and Narayanan v. State of Kerala.

( 7. ) THE leading case on the subject is the decision of Asutosh Mookerjee, J. in Karali Prasad Guru v. Emperor (supra) (1916) 17 Cr