In Re: Shanmugham

Paul, J.—The revision petitioner has been convicted by the learned Judicial Second Class Magistrate, Kallakurichi, of an offence punishable

under S. 456, I.P.C. and sentenced to rigorous imprisonment for three months. The learned Chief Judicial Magistrate has confirmed the conviction

and the sentence. The facts of the case are very simple. At about midnight on 5th February, 1978, when P.W.I, and his wife were sleeping in their

house, P.W.1, on hearing some noise, woke up and lit the lamp and found the revision petitioner standing near his wife; whereupon he caught hold

of the revision petitioner and raised an alarm and the neighbor P.W.2, turned up there and went and fetched P.W.3, and the revision petitioner

begged for forgiveness. But, P. W. 3 and P.W.I produced him before the Village Munsif and P.W.I gave the report, Ex.Pl, and the revision

petitioner was then produced at the police station. The revision petitioner, when examined by the trial court, refuted all the circumstances appearing

in the evidence against him. He did not adduce any evidence on his side. Both the courts below have found that the necessary ingredients of S.

456, I.P.C. had been made out. It is now contended by Mr. Arunachalam, learned counsel for the revision petitioner, that on the facts established,

an offence under S. 456, I.P.C. had not been made out. Mr. Arunachalam has referred to the various ingredients necessary for constituting an

offence under S. 456, I.P.C. It is argued that the facts established do not establish those ingredients.

S 456, I.P.C. prescribes the punishment for committing lurking house trespass by night or house-breaking by night. Lurking house trespass by

night has been defined in S. 444, I.P.C. as follows;-

Whoever commits lurking house trespass after sunset and before sunrise, is said to commit lurking house-trespass by night.

Then again, lurking house trespass has been defined in S. 443, I.P.C. as follows-

Whoever commits house-trespass having taken precautions to conceal such house-trespass from some 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.

Then again, S. 442, I.P.C. defines what house trespass is and it is as follows-

Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling, or any building used as a

place, for worship, or as a place for the custody of property is said to commit ''house trespass''.

Criminal trespass has been defined in S. 441, I.P.C. as follows-

Whoever enters into or upon property In the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in

possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult

or annoy any such person, or with intent to commit an offence, is said to commit ''criminal'' trespass''.

Consequently, the necessary ingredients for an offence under S. 456, I.P.C. are: (1) entry into any building, tent or vessel used as a human dwelling

with any of the following intents: (a) to commit an offence or (b) to intimidate, insult or annoy any person in possession of such property, after

having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building,

tent or vessel, and such trespass was after sunset and before sunrise. Unless the entry into the house was with any of the. intents specified in S. 441

of the Indian Penal Code, there cannot be any offence, under S. 456, I.P.C. The entry with any of the intents specified in S. 441, I.P.C. is the

primary ingredient to constitute an offence under S. 456, I.P.C. Mr. Arunachalam has therefore argued that in this case all that the evidence has

established is that at the midnight, the revision petitioner was found inside the house of the complainant to the police standing near the place where

the complainant''s wife was sleeping and that from that circumstance, it cannot be said that the revision petitioner bad any of the intents specified in

S. 441,1.P.C. In support of that contention Mr. T.S. Arunacbalaro, has. referred to a number of decisions. He has first of all referred to the

decision in Sankarsan Boral Vs. The State, where it was observed that ''to sustain a charge under S. 456, the Court must come to the definite

inference as to what was the particular intention with which the entry was effected and if the intention was to annoy the inmates such a finding

should be clearly mentioned in the judgment, and if, on the other hand, the intention was to commit some other offence, such as adultery or

unnatural offence with the inmates of the house, a finding to that effect must be recorded, based on evidence and a vague statement that the

petitioner must have intended to annoy or insult the inmate would not suffice. There the proved facts were that the accused was found inside the

dwelling house of the complainant at about 3 a.m. and when an alarm was raised, he tried to conceal himself in the kitchen but he was traced out

and it was however held that on those proved facts there it was difficult to infer irresistibly that the intention of the accused in entering the house

was to commit some offence or to annoy the inmates and there was no evidence on either side as to the main object with which the entry was

effected and it was not safe in those circumstances to surmise that the accused must have entered the house with some other specific object in

view. In the State v. Sydne Rodrigues, I.L.R 1954 Nag 137 one Rodrigues was prosecuted for an offence under S. 456, I.P.C. and the facts that

were established in that case were that the feelings between the complainant to the police and the accused became strained when the accused

developed friendship with the complainant''s daughter and one night Rodrigues was seen inside the house and Rodrigues admitted that he had gone

there in pursuance of a letter which the complainant''s daughter had sent to him. It was found that all that the accused had done was to visit the

complainant''s house in response to an invitation from his daughter and in view of the relation which existed between the complainant and the

accused, the latter had not the slightest intention of annoying the former and must have been keenly desirous of not having his visit discovered by

him, and it was held that the charge under S. 456, I.P.C. was not substantiated. In Emperor v. Takbirulla AIR 1941 Pesh. 79 it was held that

where a man enters the house of another person with intent to commit clandestine adultery with an unmarried woman by invitation and actually

commits adultery, not only does he not intend to insult or annoy any other person in the house but he desires above all things that his presence

should not be known to the other occupants, and consequently he cannot be held to be guilty under S. 456, I.P.C. But, that is an extreme case and

with great respect I am unable to agree with the broad proposition projected in that case. Committing adultery is undoubtedly an offence and if a

person enters the house of another for the purpose of committing adultery, one of the intents specified in S. 441, I.P.C. has been clearly made, out.

Nevertheless, that decision does make it clear that it is necessary for the Court to give a specified finding with regard to the intent with which the

accused person entered into the building. In Abdul Wajid v. Emperor AIR 1938 Crl. 534 it was held where an accused enters at night the

complainant''s house with intent to have intercourse with the unmarried and seizures daughter of the complainant by invitation, the accused cannot

be said to have the primary or even the subsidiary or secondary intent to annoy the person in possession, from whom he had taken all possible

precautions to keep his entry secret, and the mere fact that he knew, or ought to have, known, that, if discovered, his presence in the house might

cause annoyance to the owner or other inmates of the house is by itself not sufficient to bring his case within S. 441. It was further observed in that

decision that It must depend on the facts of each case, as to whether an intent to annoy the person in possession of the property entered upon can

in the circumstances be reasonably inferred.

In the case before me, there is a clue as to the background of the matter, for, in the first information report itself it has been stated that when the

accused was brought before the village munsif at 1 a.m. in the night the complainant told him (sic) about the previous illicit relationship between the

accused and the complainant''s wife (sic) who was sleeping. From these circumstances, it cannot be inferred with any amount of certainty that the

accused had entered into the house with the intention of committing an offence1. Undoubtedly, he would not have entered into the house with the

intention of intimidating or annoying the complainant. It could however be argued that he had entered into the house with the intention of committing

adultery with the complainant''s wife and if that was the intention, undoubtedly, he would be guilty of an offence under S. 456, I.P.C. But that

intention cannot be predicated in this case because it is hardly likely that the accused would have thought of having sexual intercourse with the

complainant''s wife when the complainant himself was sleeping near her. The possibility that the accused had entered into the house for the purpose

of taking the complainant''s wife out for such a purpose is also there. The net result is that it is very hard to give a definite finding as to what was the

intent with which the entry into the house was made and without a finding on that point, the conviction under S. 486, I.P.C. cannot be sustained.

In the result, the criminal revision case is allowed and the conviction of the revision petitioner of an offence under S. 486, I.P.C. and the

sentence meted out to him are set aside and he is acquitted.