GAURI Vs. STATE OF U P

JUDGEMENT

(1.) GAURI, applicant, was convicted by the learned Addl. District Magistrate (Judicial) under Sections 457 and 224 IPC, and was sentenced to nine months rigorous imprisonment and a fine of Rs. 50/- on the former charge and to six months rigorous imprisonment and fine of Rs. 50/- on the latter charge. Bachcha Lal, applicant, was convicted under Section 457 and 225 IPC and was sentenced to nine months rigorous imprisonment and fine of Rs. 50/- on the first charge and six months rigorous imprisonment and a fine of Rs. 50/- on the latter charge. The substantive sentences of both the applicants under the charges were ordered to run concurrently. Both these applicants preferred an appeal but the learned Sessions Judge dismissed their appeal. Hence this revision.

(2.) THE learned counsel for the applicants contended that there was no evidence in this case to show that the applicants had taken any active steps to conceal their presence and, therefore, the offence could not amount to one of lurking house trespass. In support of this contention, reliance was placed on a decision of this court in Chhadami v. Emperor, AIR 1940 Alld. 259. I have gone through the evidence and I find that there is nothing therein to show that either of the applicants had taken any active means to conceal their presence. THE mere fact that they are alleged to have committed house trespass by night cannot, as held in the aforesaid ruling, make the house trespass a lurking house trespass. In the circumstances, it must be held that the applicants could not be said to have committed the offence of lurking house trespass. However, the evidence shows that the applicants entered the house of the complainant at night and when members of the complainant's family woke up they fled from there and when Gauri was chased and caught his accomplice beat the pursuers and secured his release. It is thus a clear case of house trespass and is, therefore, punishable under Section 448 IPC.

(3.) CONSIDERING the circumstances of this case, I am of the opinion that it would not be proper to send the applicants to jail in respect of the offence under Section 448 IPC and that they should be given the benefit of the First Offenders Probation Act.