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13.I have heard the final argument put forth by ld. APP for the State and Ld. Legal Aid Counsel Sh. A. K. Jha.

BRIEF REASONS FOR THE DECISION:

14. It is alleged against the accused that he entered into the house of PW2 Gurmeet Kaur and tried to break the lock of guest house situated at ground floor of the said property. He was seen by PW2 and later on apprehended by complainant PW1 when he tried to flee from the spot. Accused has been charged under section 454 IPC and 380/511 IPC. First of all, I would like to deal charge under section 380/511 IPC. Definition of 'Theft' has been given in section 378 IPC which is reproduced here as under:

Section 378 IPC. Theft.­ "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

15.Offence of theft has been made punishable under section 380 IPC if theft is committed in a dwelling house etc. Accused has been charged for attempting to commit an offence under section 380 IPC. To punish a person under section 380/511 IPC, it has to be proved that there was a complete attempt on the part of the accused and the offence could not be completed due to some other reasons which were beyond control of the accused. To complete an attempt, the offender should have done some act towards commission of the main offence. An attempt to commit an offence is set to begin when the preparations are complete and the accused commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. It has been alleged against the accused that he entered into the house of the victim with an intention to commit theft but he was seen by the victim and he could not commit theft. For the offence of theft and towards an attempt of theft, intention of the accused to commit theft is an important ingredient. Prosecution has to prove that the intention of the accused was only to commit theft and none else. Intention cannot be presumed by the court and same has to be proved by the prosecution by way of ocular evidence or by conduct of the accused during the commission of offence. In the present case the only fact proved against the accused is that he entered into the house of the victim but what was his intention, that is not proved. A person may enter into somebody's house for so many reasons and commission of theft is not only the sole reason for doing so. It is admitted case of prosecution that accused was seen by the victim when he was trying to break the lock of the guest house. Meaning thereby, at the most we can say that he was trying to break the lock but we cannot presume that his intention was to commit theft. When the essential ingredient of the main offence are not complete in a set of facts then attempt of that offence cannot be made punishable as same is defective and falls short of an attempt which is made punishable under section 511 IPC. Therefore, I am of the considered view that intention to commit theft on the part of the accused is not proved by the prosecution and therefore, prosecution has failed to prove the allegation under section 380/511 IPC against the accused. Allegation under section 454 IPC.

17. It is alleged against the accused that he entered into the main gate of the house of the victim and he tried to break the lock of the guest house. Applying the present set of facts to the definition given under section 445 IPC, I am unable to find any of the 'six ways' applicable in this case. The mere presence of the accused inside the house of another person does not constitute house breaking. In the absence of evidence as to whether the accused had effected his entry into the house in any of the six ways enumerated in the section, the offence of house breaking is not established against him. Accused in the present case entered into the house of the victim through main gate which was meant for entering the house. Therefore, he did not made that passage himself. It is also not the case that passage was not intended to be used for human entrance. It is further not the case of the prosecution that he has obtained access to the house by scaling or climbing over any wall or window. The case would have been covered under fourthly if accused had succeeded to break open the lock of the guest room. However, seizure memo of the lock reveals that it has been mentioned that the broken lock has been seized but PW1 and PW2, who are the material witnesses in this case, have not stated that lock was broken by the accused. PW2 simply stated that when she saw the accused, he was trying to break the lock. Therefore, it cannot be presumed that lock was being broken by the accused. Therefore, keeping in view the totality of the circumstances, the offence committed by the accused falls short of offence of house breaking. As far as offence of lurking house trespass is concerned, it is also not the case of the prosecution that any effort was made by the accused to conceal his identity during the incident. To qualify an act into the category of lurking house trespass, the house trespass must be coupled with an effort to conceal identity and if that effort is not present, there cannot be any offence of lurking house trespass. Therefore, the act of accused also falls short of the offence of lurking house trespass. Therefore, I am of the considered view that offence under section 454 IPC is not made out against the accused.