Queen-Empress vs Ismail Khan and Others

Straight, Offg. C.J.

In this case the evidence against the appellants was, that on the early morning of the 13th April last, they were disturbed by a chaukidar while engaged in making a hole in the wall of the house of the complainant. Immediately upon being so disturbed they attempted to make their escape, the appellant Ismail Khan firing off a pistol, in what manner and direction it does not appear from the evidence, and the other two appellants attempting to prevent their apprehension by using their lathis. It is not suggested that these latter two appellants inflicted any serious hurt upon the police officers, and I do not think that any grave importance attaches to that part of the case. The learned Sessions Judge has convicted the appellant Ismail Khan of attempting to commit the offence provided for in Section 459, Indian Penal Code, and he has convicted the other two appellants of an attempt to commit the offence provided for in Section 460 of the same Act. I am very clearly of opinion that neither of these convictions can stand. Sections 459 and 460 provide for a compound offence, the governing incident of which is that either "a lurking house-trespass" or "house-breaking " must have been completed, in order to make a person who accompanies that offence either by causing grievous hurt or attempt to cause death or grievous hurt responsible under those sections. In other words, the causing of the grievous hurt, or the attempt to cause-death or grievous hurt, must be done in the course of the commission of the offence of lurking house-trespass or house-breaking, and at the time when such lurking house-trespass or house-breaking is being committed. The provisions of these sections being of a highly penal nature, and inflicting very severe punishment upon conviction, it is necessary that they should be construed, strictly; and in my opinion it was not contemplated that where the principal act done by the accused person amounts to no more than a mere attempt to commit the offences of lurking house-trespass or house-breaking, the section should be applicable. The convictions as recorded by the Judge are quashed, and I direct that they be recorded under Sections 452 and 511 of the Indian Penal Code, that is, for attempted house-breaking by night. The sentence passed on the prisoner Ismail Khan will be altered to transportation for the term of seven years. Inayat and Gullarh will be rigorously imprisoned for the term of five years. Such sentences to commence from the date of their conviction in the Sessions Court.