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5. After trial the accused persons were convicted for committing the offence punishable under Section 459/34 IPC and sentenced in the manner stated above.

6. Appellant Suraj Giri is present on bail. Pursuant to the production warrants being issued, appellants Guddu Giri and Devender Prasad have been produced from J/C.

7. Mr.Biswajit Kumar Patra, Advocate for appellant Suraj Giri, Ms.Inderjeet Sidhu, Advocate for appellant Guddu Giri and Mr.Jatin Rajput, Advocate for appellant Devender Prasad, on instructions, submit that the appellants are not disputing the incident and they are challenging their conviction only to the extent that they could not have been convicted for committing the offence punishable under Section 459/34 IPC as no grievous injury was caused while committing lurking house trespass at night. It has been submitted that the injuries have been caused to injured Bahadur Baghel (PW-1) only after the appellants had entered his house. Thus, they could only be convicted under Section 457/34 IPC. Hence, their conviction may be altered from under Section 459/34 IPC to Section 457/34 IPC. The appellants have also prayed for a lenient view on the quantum of sentence submitting that they are the sole bread earner in their family which consist of their wife, children and aged parents. They are the first offenders and not involved in any other case prior to this case or thereafter.

8. Learned counsel for the appellants have placed reliance on Said Ahmed & Anr. vs. King Emperor AIR 1927 Allahabad 536 in support of his contentions.

9. I have considered the submissions made by learned counsel for the appellants and carefully gone through the record.

10. Section 459 IPC provides as under:-

"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 imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

12. A bare reading of Section 459 IPC would reveal that it contemplates a situation wherein the grievous hurt or attempt to cause grievous hurt is while committing lurking house trespass or house breaking.

13. In Said Ahmed's case (Supra) relied upon by learned counsel for the appellants the offence of house breaking was held to be complete when entry into the house is effected. It was also held that any grievous hurt caused after breaking into the house would not amount to causing grievous hurt while committing the lurking house trespass within the meaning of Section 459 IPC. This Court has taken a similar view in the decision reported as Rohtas Vs. State, 1987 (1) Crimes 576 Delhi. In the above noted case, the occurrence had taken place at about 1.30 a.m. on the night intervening 8 th/9th February, 1979 at the house of the complainant where he along with his wife was sleeping at his house. The injuries were caused to the complainant and his wife with a 'mussal' picked from the room. The appellant Rohtas was convicted for committing the offence punishable under Section 459 IPC. In appeal the conviction under Section 459 IPC was challenged on the ground that to attract the provision of Section 459 IPC the attempt to cause grievous hurt or an attempt to cause death or grievous hurt to any person must be done in the course of commission of offence of lurking house trespass or house breaking. While accepting the submission made on behalf of the appellant in para No.7 of the report it was held as under:-

14. Reverting to the facts of the instant case, from the statement of the complainant/injured (PW-1) it is proved that the hurt was caused by the appellant not in the process of committing lurking house trespass. The offence of lurking house trespass was complete once they entered into the dwelling unit of the complainant. The injuries subsequently caused by the appellant after breaking into his house do not satisfy the requirement of section 459 IPC as held in Said Ahmed's case (Supra) and by this court in Rohtas's case. Since the grievous hurt has been caused after committing the lurking house trespass, the offence proved against the appellants would be under Section 457/34 IPC and not under Section 459/34 IPC.