JUDGMENT

Bennett, J - This is an application in revision against an order passed by the learned Sessions Judge of Fyzabad confirming in appeal the conviction of the applicant Sital under Sections 457 and 380, Penal Code. Sital was sentenced to six months' rigorous imprisonment under Section 457 and to three months' rigorous imprisonment and a fine of Rs. 50 under Section 380, the sentences of imprisonment to run concurrently. It is contended in the present application firstly that the conviction was not justified on the evidence, and secondly that the conviction under Section 457 and also under Section 380 is illegal. I have heard what the learned Counsel for the applicant has had to say on the facts, and I see no reason to think that the evidence was not sufficient to establish the applicant's guilt. The prosecution story was that the wife of the complainant Sheo Harakh, herself grappled with the applicant, and as he is a near neighbour, there is no reason to doubt her ability to recognise him, even though there was not much light. The evidence shows that there was some light. He was also identified by other witnesses. Moreover, articles were found in his possession afterwards which were identified as those of Sheo Harakh. There is no reason at all, therefore, for interfering with the applicant's conviction on the evidence and the facts established by it. The other point raised is a legal point which merits more consideration. In support of his contention the learned Counsel for the applicant has referred to a decision of a Bench of the Patna High Court in Makhru Dusadh v. Emperor, A.I.R. 1926 Pat. 367. It was held in this case that an accused person convicted of house-breaking followed immediately by theft is liable to punishment Under Section 457, Penal Code, only. Reference was made in this case to decisions of the years 1865, 1866 and 1867.

2. With all respect I am unable to follow these decisions. Section 457 relates to the offence of lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment. The offence of lurking house-trespass or house-breaking is committed whether the subsequent offence is committed or not. The section looks merely to the object with which the house-trespass or house-breaking is committed: it does not take into consideration the offence, if any, committed thereafter. There is no reason, therefore, why Section 457 should be considered a bar to a conviction for the offence committed after the house-trespass or house-breaking. Learned Counsel for the applicant pointed out that Section 380 relates to the offence of theft committed in any building, tent or vessel and argued that such theft involves illegal entry into a house. This is not altogether correct. No doubt the offence cannot be committed except by a person who has entered into a building, tent or vessel, but it is by no means necessary that the entry should have been effected by trespass or housebreaking. The offence of theft under Section 380 may be committed by a person in his own house. There is, therefore, no connexion between Section 457 and Section 380. In support of the conviction under both sections I have been referred to the case in Queen-Emperss v. Nirichan, 1989 .Mad. 36. In this case a man was convicted under Section 457 and also under Sections 426 and 352, having committed housebreaking by night in order to commit such offences, and having actually committed them. He was punished separately for each offence, and a Bench of the Madras High Court held that the convictions and sentences were legal. Reference was made in that case to Section 71, Penal Code, and the learned Counsel for the applicant has also referred to this section. It was held by the Madras High Court that Section 71 does not apply, and I am also of the same opinion. Section 71 only provides that where anything which is an offence is made up of parts, any of which parts is itself an offence, the