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17. His next thrust of argument is that there is voluminous evidence on record to firmly establish that the house of Shri Bux Singh, who is father of the appellants, is also situated near the house of Maman Singh in the same chowk and that the appellants have a right of way therefrom to their house. Thus even if the appellants had gone inside the chowk of Maman Singh's house, still then no lurking house trespass or house breaking was committed by them and, therefore, offence under Section 459, IPC is not at all made out. Hence the learned trial Judge has committed grave illegality in convicting and sentencing them Under Section 459, IPC.

24. The learned Public Prosecutor asserted that the appellants had no right of way through the chowk of Maman Singh and hence they had committed lurking house trespass having made preparation for committing murder of Narsingh and his brothers and therefore, the offence committed by the appellants actually falls Under Section 460, IPC and since the punishment prescribed for offences Under Sections 459 and 460, IPC are identical, they should be convicted for offence Under Section 460, IPC. According to him, the charge for offence Under Section 459, IPC is not defective and no failure of justice has been occasioned. The learned Public (sic) disclosed and all the material facts constituting substratum of the prosecution case were mentioned. Since two of his brothers were brutally murdered, informant PW. 3 Jai Singh was in a perplexed state of mind. The written report Ex. P1 was scribed by PW 4 Ganga Singh, who is another brother of deceased. In the FIR, it has been mentioned by informant Jai Singh that he along with his mother, father, sister (meaning thereby PW. 6 Saroj), brother Nar Singh (deceased) and his wife PW 2 Vidya Devi were taking their meals in their house. There is no dispute that PW 1 Maman Singh and all of his sons namely Jai Singh PW 3, PW. 4 Ganga Singh, deceased Narsingh and Hari Singh and daughter Kumari Saroj PW 6 were living together. In such circumstances, the presence of PW 4 Ganga Singh and his wife PW 8 Krishna in the house was natural. Therefore, non-mention of their names in the FIR does not make their presence doubful at the time of the incident unreliable and the same is not fatal to the prosecution.

In re offence Under Section 459. IPC

56. P.W. 1 Maman Singh, P.W. Jai Singh, P.W. 8 Krishna Devi and P.W. 10 Chandra Bai have in most unequi vocal, unambiguous and clear terms admitted that the appellants have a right of way to go to their house through the chowk, where the murder of Narsingh was committed. They have also admitted that the doors of two rooms of Shribux Singh, the father of the appellants, open in this chowk. Thus, there is voluminuous evidence on record to show that the appellants had a right to go through the said chowk, where Maman Singh had put a main gate. Hence no case of house trespassing is made out. The main ingredient for lurking house trespass is that the person who is said to have committed trespass must have taken precautions to conceal such house-trespass from some person, who has a right to exclude or eject the trespasser from the building, tent or vessel, which is the subject of the trespass. In the instant case, even as per the prosecution case, the appellants did not take any prosecution to conceal their presence. On the other hand, they had a right to go to the joint chowk in question, where the incident of murder of Narsingh had occurred. It is also not a case of house breaking by night. Section 459, IPC' says that 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 imprisonment for life, or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Therefore, from the prosecution evidence on record, main ingredients constituting an offence under Section 459, IPC, have not been made out in this case.

57. Section 460. IPC lays down that if at the time of committing lurking house-trespass by night or house breaking by night, any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, then every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Admittedly, the learned trial Judge did not frame any charge against the appellants for the offence under Section 460, IPC. Moreover, the chowk where the murder of Narsingh was committed, was not exclusively owned and possessed by the complainant party and that the appellants also had a right of way through the said chowk and they did not take, any precaution to conceal the house trespass from the inmates of the house. Hence in our considered opinion, the appellants can neither be convicted for offence under Section 459, IPC nor under Section 460, IPC. The learned trial Judge has, therefore, committed illegality of fact as also of the law in convicting appellant Dharampal Singh for offences under Section 459, IPC and appellant Jaivir Singh under Section 459 read with Section 34, IPC. As a matter of fact, charge under Section 459 IPC read Section 34 IPC, has also been wrongly framed against appellant Jaivir Singh. Therefore, conviction and sentence of the appellants under Sections 459 and 459/34, IPC deserve to be quashed.