Full Judgment
R.P. Sethi, J.
1. The petitioner, a young man of 20 years at the time of occurrence was found under the bed of Mst. Chint Purrti and Raj Rani at mid-night of 1st. of July, 1970 in the house of complainant situated in the town of Katra. The accused was charged, convicted and sentenced to one year's rigorous imprisonment and a fine of Rs. 300/- in proof of the offence punishable under Section 457, R.P.C.
2. Raghunath Dass complainant alleged that on 1-7-1970 while he, his son and one daughter were sleeping in the compound of his house and his wife alongwith his unmarried daughter Raj Rani were sleeping inside the room, he heard some noise whereafter his wife cried that some thief had entered in her room. The complainant went into the room, switched on the light and found the petitioner concealing himself under the bed of complainant's wife. Raghunath Dass bolted the room from outside when the petitioner, the wife of the complainant and his daughter Raj Rani remained in the room. FIR EX-PA was lodged in consequence of which the police came on spot and arrested the accused from the house of the complainant. The trial court as well as the appellate court found the appellant guilty, convicted and sentenced him under Section 457, RPC.
3. Aggrieved by the order of conviction and sentence, the petitioner has filed this revision petition alleging therein that even on the basis of facts as alleged by the prosecution or as held proved on facts, no case under Section 457, RPC is made out against the petitioner.
4. In order to succeed in proving the case against the accused under Section 457, RPC the prosecution is under an obligation to prove beyond doubt that:
l)The accused committed either lurking house trespass by night or house breaking by night.
2) He did so in order to commit an offence punishable with imprisonment extending to five years, and;
3) For aggravating charge the offence in question was theft.
The criminal intention is an important ingredient of such an offence and the prosecution has to prove that intention just as much as any other ingredient. The entry of one person into the house of another cannot be presumed to be criminal unless there are circumstances from which a legal inference of criminality can be drawn. The mere fact that a house trespass was committed by night would not ma,ke the offence one of lurking house trespass. The question with what intention the accused entered the house can also be spelt out and inferred from the attending circumstances. But before any such inference could be drawn the prosecution is under an obligation to prove that the inference sought to be drawn must be negativated by any other hypothesis than the one sought to be inferred. If the presence of the accused or his entry in the house can be probabilised for any other reason, the accused is entitled to get its benefit. In such a case the intention of the accused has to be discovered by a process of elimination. If it is probabilised that the accused was an acquaintance and usual visitor in the house of the complainant it can be suggested or sought to be inferred that his object was something other than theft. The complainant under such circumstances could have suggested something else than theft particularly when the accused was found where young women were sleeping. Under these circumstances the prosecution could have asked to presume that the intruder had entered with the intention to satisfy his sexual lust or gratify his carnal appetite. In order to constitute an offence under this section the court must come to a definite inference as to what was the particular intention with which the entry was effected. A vague statement that the accused intended to annoy or insult the inmates of the house is not sufficient. For, without possessing criminal intent there can be no trespass and without trespass there can be no offence punishable under the section. It is universal principle that when a person is charged with doing an act the intention is an inference of law which can be gathered and drawn on the basis of allegations made by the prosecution. A mere knowledge that the entry of the intruder is likely to cause insult or annoyance to the owner of the property or the commission of offence does not by itself amount to the existence of criminal intention as contemplated by this section.
5. In the instant case the facts admitted or proved by the prosecution are:
1) That the accused and the complainant were on friendly terms and used to drink together;
2) That the accused was found in a room of the house of the complainant where his wife and daughter were sleeping;
3) That the allegation in the FIR lodged was to the effect that petitioner had intruded into the house for the commission of the offence of theft;
4) That the accused was a man of means and was not a habitual criminal or theft.
5) That the accused raised hue and cry at the time of his arrest to the effect that he was being falsely implicated;
6) That no intention is attributed to the petitioner for his entry to satisfy his sexual lust or gratify his carnal appetite;
7) That no witness has stated during the trial that the petitioner had intruded in the house with the intention of committing theft.
6. Mr. Sharma the learned CGA appearing for the prosecution has submitted to draw an inference of the criminal intention of the accused purporting to be to satisfy his sexual lust or carnal appetite either with the wife of the complainant or his daughter. I am afraid I cannot agree with this submission firstly because Mst. Chint Purni, the wife of the complainant has not said anything in her statement recorded by the trial court on 27-12-1971 and Mst. Raj Rani who was a very material witness had not been produced in the case. Even the application of the petitioner to summon Raj Rani as a witness under Section 540, Cr.P.C. was opposed by the prosecution and rejected by the court. The prosecution in the instant case has miserably failed to prove the criminal intention as contemplated under Section 457, RPC for commission of the offence of house trespass which is the basic ingredient of such an offence. The accused is entitled to get the benefit of doubt for such a lapse attributable to the prosecution.
7. For the reasons stated hereinabove the order of conviction and sentence passed by the courts below is liable to be set aside by giving the accused benefit of doubt. I accept the revision petition and set aside the order of learned Sessions Judge, Udhampur dated 8-2-1977 and of the Chief Jud. Magistrate, Udhampur dated 19-6-1976 by which the accused was convicted and sentenced under Section 457, RPC. The accused is acquitted of the charge framed against him.