A.P. Sen, J.
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 uncle-in-law Khumansingh (PW 4) who fives across the road, pursued the respondent and caught him in front of Rewaram's 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 complainant's 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 : AIR1962Ker81 .
7. The leading case on the subject is the decision of Asutosh Mookerjee, J. in Karali Prasad Guru v. Emperor (supra) (1916) 17 Cri LJ 422 (Cal). There, as here, a stranger, uninvited and without any right to be there, effected an entry in the middle of the night into the sleeping apartment of a woman and when an attempt was made to capture him, used great violence in his effort to make good his escape. It was held that the Court should presume that the entry was made with such an intent as was provided for by Section 456 of the Indian Penal Code. According to the eminent Judge, all that is necessary for the prosecution to sustain a charge under Section 456 is to prove a guilty intention, as is contemplated by Section 441 of the Indian Penal Code. That requirement is clearly fulfilled in the instant case.
(See, Matiullah Sheikh v. State of West Bengal : 6SCR978 and State of Madhya Pradesh v. Bhooresingh ILR (1961) Madh Pra 884 : 1960 Cri LJ 1611.)
8. The decision in Jharu Sheikh v. King-Emperor (1912) 16 Cal WN 696 : 13 Cri LJ 224 is, we think, distinguishable. There, the accused was charged with offences, under Sections 457 and 380. As regards the charge under Section 457, the intent imputed to him was the commission of theft. The defence of the accused was one of denial of the incident In these circumstances, the Court held that no conviction could properly be made under Section 456, till the charge under Section 457 had been amended. The reason assigned for this view was that the accused must have been seriously prejudiced by not knowing what really was the charge against him. That is also the case in all the other cases which follow that decision - Raghu Singh v. Emperor AIR 1920 Pat 590 : 21 Cri LJ 496, Balkesar Singh v. King-Emperor AIR 1922 Pat 5 : 23 Cri LJ 114 and Hazari Sonar v. King-Emperor (1922) 26 Cal WN 344. In the present case, however, the defence has itself come forward with the suggestion that the respondent effected an entry into the house at the invitation of Mst. Shyambai (PW 3), sister-in-law of the complainant.
9. It is necessary to mention that Mookerjee, J., while dealing with Jharu Sheikh's case, (1812) 13 Cri LJ 224, (Cal) (supra) observed in Karali Prasad Guru v. Emperor (1916) 17 Cri LJ 422 (Cal) (supra):
It is not necessary for us to express an opinion upon the question, whether this view was correct, even in the circumstances of that case. But it is plain that if the Court intended to formulate an inflexible rule of universal application that under no circumstances can a conviction be made under Section 456, when the accused has been charged with the commission of an offence under Section 457, the view cannot possibly be sustained. Section 238, Criminal Procedure Code which provides that when a person is charged with an offence, and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it, could clearly be applicable to a case of this character.
We are in respectful agreement with these observations.
10. Accordingly, the appeal succeeds and is allowed. The order of acquittal passed by the Magistrate is set aside, and the respondent is convicted under Section 456 of the Indian Penal Code. The offence of lurking house-trespass by night is a serious offence and calls for a deterrent punishment. However, having regard to the fact that the lurking house-trespass by night was committed by the respondent not with any intention to commit theft, and the fact that the incident is of the year 1969, i.e. 6 years old, we are inclined to take a lenient view in the matter of sentence. We, therefore, sentence him to imprisonment till the rising of the Court and to a fine of Rs. 100/-(rupees one hundred) or in default to undergo R. I. for fifteen days.