IN RE: SHANMUGHAM Vs. STATE

JUDGEMENT

(1.) 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.

(2.) 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; -

(3.) 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'.