The central legal point established in the judgment is the requirement for assault during the act of house breaking or lurking house trespass under Section 459 of IPC. The court emphasized the need for reliable evidence and the absence of a motive for the offence to establish guilt beyond doubt.

N.K. Gupta, J.

1. The appellants have preferred the present appeal being aggrieved with the judgment dated 24.10.1997 passed by the Second Additional Sessions Judge, Satna in S.T. No.53/1988, whereby appellants No. 1, 4 and 6 have been convicted of offence punishable under Section 457 of IPC and sentenced to 2 years rigorous imprisonment with fine of Rs.500/-, whereas the appellants No. 2, 3 and 5 have been convicted of offence under Section 459 of IPC and sentenced to 3 years rigorous imprisonment with fine of Rs.500/-. One month simple imprisonment was imposed on each of the appellants, in default of payment of fine.

2. The prosecution's case, in short, is that, on 12.4.1986, at about 2.10 a.m., Madhav Prasad (P.W.4) went to the Police Station Ucchehra and lodged an FIR, Ex.D/3 in Rojnamacha that some culprits were breaking the doors of his shop and therefore, SHO Shri R.S. Tripathi and his companions immediately left for the spot. However, Madhav Prasad (P.W.4), who went to the spot had found that doors of his shop were broken and his nephew Sudama and his mother Makhaniya (P.W.3) had sustained injuries. It is also found that some boxes kept in the shop were found thrown out of the shop. SHO, Police Station Ucchera registered a case and investigated the matter. On the basis of evidence given by eye witnesses, a charge-sheet was filed before the JMFC, Nagod, who committed the case to the Court of Sessions and ultimately, it was transferred to the Second Additional Sessions Judge, Satna.

3. The appellants abjured their guilt. They took a plea that there was a dispute of house between the parties and therefore, they were falsely implicated in the matter due to enmity. However, no defence evidence was adduced.

4. Second Additional Sessions Judge, after considering the prosecution evidence, convicted the appellants No. 2, 3 and 5 i.e. Bhagwandas, Shivdas and Lalai @ Lalan Singh of offence under Section 459 of IPC and sentenced as mentioned above, whereas remaining appellants were acquitted from the charge of offence under Section 459 of IPC but, convicted for offence under Section457 of IPC and sentenced as mentioned above.

5. I have heard the learned counsel for the parties at length.

6. After considering the peculiar factual position of this case, where the trial Court did not distinguish between offence under Sections459 and 457 of IPC and convicted the appellants of such different offences on the basis that the appellants against whom it was found that they assaulted the victims, were convicted of offence under Section 459 of IPC and the appellants who did not assault anyone have been convicted of offence under Section 457 of IPC. Looking to the peculiar circumstances of the case, first of all, it is to be decided that what is the scope of discussion relating to offences in the present case.

7. Offence under Section 459 of IPC is a peculiar offence, in which act of assault should be done during the act of house breaking or lurking house trespass. Provision of Section 459 of IPC is reproduced as under:-

459. Grievous hurt caused whilst committing lurking house trespass or house-breaking.-Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In this provision, expression "Whilst" prefixed to the words committing lurking house trespass or house breaking has given rise to a cleavage of judicial opinion and in case of "Syed Ahmed Vs. Emperor", [: AIR 1927 Allahabad 536], it was held by Allahabad High Court that if assault has been caused after entering in the house then, provision of Section 459 of IPC shall not be attracted. Such assault of causing grievous hurt or attempt to cause death should be done in the course of commission of offence of lurking house trespa