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5. Learned counsel for the petitioner placed reliance on the following judgments:

(3 of 14) [CRLR-1290/2018]

6. Sahnaz Uddin Laskar Vs. State of Assam Criminal Appeal No. 62 (J) of 2015 (Gauhati High Court) wherein the Hon'ble Court held asunder:-

"The learned Sessions Judge having perused such evidence convicted the accused under section 459 of the Indian Penal Code but in view of the fact that the accused did not assault on the victim inside the house but did so by dragging her outside, we are of the view that the offence committed by the accused does not attract section 459 of the Indian Penal Code but thereby he has committed an offence under section 326/453 of the Indian Penal Code. This is because an offence under section 459 of the Indian Penal Code involves committing lurking house trespass or house breaking and causing grievous hurt in course of such trespass. If grievous hurt is caused either while making lurking house trespass or while inside the house wherein the trespass had taken place, then and then only section 459 of the Indian Penal Code would apply. Here, in this case, the accused trespassed into the house of the victim and thus committed house breaking and then dragged her outside and sought to commit rape but on being resisted stabbed on her person four times causing grievous hurt and thus section 459 of the Indian Penal Code would not apply."

"The word 'whilst' according to the Oxford English Dictionary, 1933 Edition, vol. 12, is an obsolete form which means "during that time; meanwhile." It is indicative of a portion of time considered with respect to the duration of a transaction. I am, therefore, inclined to be of the view that during the period the house-breaking lasts if the trespasser causes grievous hurt to any person or attempts to cause death or grievous hurt the provisions of Section 450 of the Penal Code will be attracted. I am unable to take the narrow view that it is only in the process of making an entry into a house if the trespasser causes grievous hurt Section 459, Penal Code is attracted, as seems to be the view taken in Said Ahmed's case MANU/UP/0118/1927 : AIR 1927 ALL 536. Two reasons are apparent for my inability, with great respect, to agree with Ashworth, J. in Said Ahmed's case MANU/UP/0118/1927 : AIR 1927 ALL 536. The first is that the essential ingredient of lurking house-trespass or house-breaking is 'criminal trespass' and that offence continues so long the person remains upon the property in the possession of another. Entrance may be surreptitious and in some cases a split second transaction. It could not have been the intention of the legislature that if a person enters into the house of another by night having made preparations for causing hurt or assault to any person or wrongfully restraining then it would be a graver offence than the one in which a person after having entered upon the property of another causes grievous hart. Having regard, therefore, to the scheme and the place which Section 459 occupies in the Penal Code the intention of the legislature was that from the point of time lurking house- trespass or house-breaking by night commences to the time it concludes if any grievous hurt is cased or any attempt to cause death or grievous hurt is made then the trespasser shall be punished as provided for in Section 459 of the Penal Code.

Whoever commits lurking house-trespass by night, or house- breaking by night, having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

459. Grievous hurt caused whilst committing lurking house- trespass or house-breaking.-- Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

19.4 In Bhanwarlal (supra), this Court held that if the trespasser causes grievous hurt or attempts to cause death or grievous hurt during the period in which the trespass onto the house has not been completed, then Section 459 IPC would apply.

19.5 This Court therefore observes that, excepting the view taken in Emperor (supra), that although the peculiar facts and circumstances of each of the aforementioned cases have lead to different conclusions, the underlying logic employed is the same, that if a trespasser causes grievous hurt or attempts to cause death or grievous hurt in the course of the trespass i.e. whilst committing lurking house-trespass or house-breaking, the provision of law laid down in Section 459 would apply.