Document Fragment View

Matching Fragments

22. In the case of Bhanwarlal vs. Mst. Parbati reported in (1968) 0 CrlJ 130, wherein it was held as follows -

"The word whilst according to the Oxford English Dictionary, 1938 Edition, Vol. III, 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 sec. 459 of the Indian 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 sec. 459 IPC is attracted, as seems to be the view taken in Said Ahmeds ease(4). The reasons are aperient for my inability, with great respect, to agree with Ashworth J. in Said Ahmeds case(4). The first is that the essential ingredient of lurking house- trespass or house-breaking is criminal trespass and that offence continues so long as 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 hurt. Having regard, therefore, to the scheme and the place which S. 459 occupies in the Indian 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 caused or any attempt to commit death or grievous hurt is made then the trespasser shall be punished as provided for in section 459 of the Penal Code. "

23. In the case Shahnaz Uddin Laskar vs. The State of Assam, reported in 2016 0 Supreme (Gau) 398, it was observed that -

"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 Page No.# 10/12 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."

24. Delhi High Court in the case of Suraj Giri & Ors Vs. State (S.B. Criminal Appeal No. 141, 565 and 638/2017) decided on 11.10.2017 while dealing with Section 459 IPC held as under :-

"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 v. 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 8th/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:-

25. In the case of Inder Puri vs. State of Rajasthan (S.B. Criminal Revision Petition No. 205/2020), it was held that if during the period of house breaking, if the trespasser causes grievous hurt to any person or attempt to cause death or grievous hurt, the provision of section 459 IPC will apply. In Bhanwarlal (Supra) it was observed that if the trespasser causes grievous hurt or attempts to cause death or grievous hurt during the period in which the trespass into the house has not been completed, then section 459 IPC would apply.