P.N. Shinghal, J.
1. This revision Dentition by accused Jabbar Khan is directed against the appellate judgment of learned Sessions Judge, Alwar, dated August 30, 1971, by which he dismissed Jabbar Khan's appeal & upheld his conviction for an offence Under Section 457 I.P.C and the sentence of one year's rigorous imprisonment and a fine of Rs. 50/-.
2. The case arose on the first information report Ex. P. 1 dated Jan., 20, 1966, which was lodged at police station Tapukara, the same day, at 3 p.m., by Fateh Khan P.W. 1. It was stated in the report that accused Jabbar Khan had committed house-breaking in the early hours of January 20, 1966, at about 4 p.m., in the house of Rahman P.W. 2 in village Milakpur, at a distance of about 11 miles from the police station. It was also stated that the accused had been caught red banded and had been detained The police registered a case, and made an investigation, during the course of which accused Jabbar Khan was arrested. He was challaned, & has need convicted and sentenced as aforesaid by the Assistant Sessions Judge of Alwar. As has been stated, his appeal has been dismissed by the Sessions Judge.
3. It has been argued by the learned Counsel for the petitioner that an apparent and a serious error of law has been committed by the courts below inasmuch as the accused has been convicted of an offence of house breaking Under Section 467 I.P.C. even though there was no evidence at all to support the conviction.
4. The charge which was framed against the accused was that he had committed house-breaking by entering the house of Rehman (P.W. 2) during the night of January 19 and 20, 1966, at about 4 p.m., with the intention of committing theft. It has been urged by learned Deputy Government Advocate that that charge was framed because it was found that the accused had emerged the house of Rehman by opening a lock in order to commit the house trespass. The learned Counsel could not, however, refer to any evidence which could show that the room in question had been locked, or that the lock was broken open. What Rehman P.W. 2 has stated in this connection is based on hearsay, with reference to what was intimated to him by his wife. As Rehman's wife has rot been examined, and as there is no other evidence to prove that the room in question had been licked, or that the accused entered it by opening the lock, there is justification for the argument of the learned Counsel for the petitioner that there is no evidence at all to justify the finding of the two courts below that the accused had committed lurking house-trespass by night within the meaning of Section 457 I.P.C. It may also be mentioned that there is justification for the further argument of the learned Counsel that there is no evidence to show that the accused committed the offence of theft. It would therefore be an irresistible conclusion to hold that the offence which could be said to have been proved against the accused was an offence Under Section 451 I.P.C., and that also for committing an offence punishable with imprisonment but not the offence of theft. In other words, all that the prosecution has succeeded in proving is that the accused committed an offence Under Section 461 I.P.C. for it has been proved that be committed house-trespass in order to commit an offence punishable with imprisonment, which is punishable with imprisonment of either description for a term which may extend to 2 years and fine The conviction of the accused is therefore altered to one Under Section 451 I.P.C.
5. It has next been argued that the prosecution witnesses, including Fehrrsn P.W. 2. have admitted that the accused was beaten, as a result of which he sustained injuries. Investigating officer Sugriv Yadav P.W. 5 has also stated that there were irjuries on the person of the accused and he was sent for medical examination. The accused has stated that he was beaten severely and his bones were fractured. A separate case has been tried in respect of those injuries and it has also been heard to-day. Learned Deputy Government Advocate has admitted that the accused received 14 injuries in all, of which atleast two were fractures of the right fibula and the left tibia. There is therefore justification for the argument of the learned Counsel that as the accused was given a severe beating while in the custody of Reman and others, a lenient view may be taken of the sentence. It appears that a sentence of rigorous imprisonment for 3 months and fine of Rs. 50/. will meet the ends of justice in this case.
6. The revision petition is allowed in part, the conviction of the accused is altered to an offence Under Section 151 I.P.C. and the sentence is reduced to rigorous imprisonement for 3 months and a fine of Rs. 50/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for one month. He shall surrender to undergo the remaining sentence. The District Magistrate may be asked to carry cut this order and to report compliance.