SATHO TANTI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THERE are two petitioners in this case. Both of them have been convicted under Section 380 of the Indian Penal Code (hereinafter referred to as "the Code") and sentenced to undergo rigorous imprisonment for six months each. They have further been convicted under Section 457 of the Code, but no separate sentence has been awarded to them thereunder. A third accused, Etwari Tanti, had similarly been convicted, but his case has been dealt with under Section 4 of the Probation of Offenders Act.

(2.) THE occurrence in question took place at about 1 a. m. in the night intervening between the 26th and the 27th December, 1966. THE concurrent finding of the Courts below is that on the aforesaid night the petitioners had scaled upon the roof of the house of the informant Digambar Prasad (P. W. 8) and committed theft from there of chillies of the value of approximately Rs. 70/-.

(3.) THE main contention of learned Counsel appearing on behalf of the petitioners is that the roof of the informant's house, upon which the petitioners scaled and from where they had carried away the chillies, as found by the Courts below, was not a part of the house which could be said to be inside the house. In other words, according to learned Counsel, the act of the petitioners did not amount to house-trespass, but, at best, to criminal trespass within the meaning of Section 441 of the Act. In support of this contention, learned Counsel has relied upon a decision of a learned Single Judge of the erstwhile Lahore High Court in Nanhun v. Emperor AIR 1933 Lah 433 (1) : 34 Cri LJ 1181 as also upon a decision of a learned Single Judge of the Allahabad High Court in Hira Lal v. THE State 1951 All LJ 461. THEse decisions, no doubt, support the contention of the learned Counsel that the going upon the roof of a building does not amount to house-trespass within the meaning of Section 442 of the Code, but only to criminal trespass within the meaning of Section 441 of the Code. As held by Kidwai, J. "THE language of Section 442, I. P. C., is, however, clear and is to be distinguished from Section 441, I. P. C. In the latter section it is not only entry into but upon property which amounts to trespass. In a case covered by Section 442, I. P. C., the entry must be into the building or remaining in the building. THE person who is on the roof of a building cannot be said to be in the building on a literal interpretation of the language used."