JUDGMENT : Das, J. - This is a petition on behalf of three Petitioners against their conviction u/s 453, I.P.C., and. the sentence of R.I. for three years. 2. The facts leading up to this petition are, shortly stated, these. The complainant Lochan Bewa, the widow of one Bikal Sethi was in possession of the disputed house left by her husband. This house was being claimed by the Petitioner Champa Bewa and it is said that she along with her son Pitambar Sethi and the cousin Durju Sethi entered into her house on the evening of February 20, 1936, and forcibly dispossessed her. According to the complainant Bikal was the only son of his father Sankar Sethi. Bikal died issueless. The Petitioner Champa is the daughter of one Iswar Sethi who was the brother of Sankar. The first Petitioner Durju Sethi who claimed the house on behalf of Champa and her son started giving trouble regarding the enjoyment of the land and the property left by Bikal. On the evening of February 20, when the complainant was absent at her cattle-shed, the Petitioners along with two others, who have been since acquitted, broke open the lock and entered into the house and took forcible possession thereof. When she protested against the action of the Petitioners the female accused persons, that is, Kana Dei and Suka Dei dragged her and assaulted her. Thereupon the complainant informed the chowkidar, p.w. 8, but the Petitioner did not listen to the persuasion of p.w. 8, rand thereafter the matter was reported at the police station and a station diary entry was made in the presence of the sub-inspector, and the assistant sub-inspector. Since the police did not treat her statement as the first information report, but merely effected an entry in the station diary, the complainant filed a petition before the Magistrate which was sent to the police to be treated as the first information report. Eventually the police did not take any action whereupon she filed a protest petition and accordingly the Petitioners along with two others stood their trial. 3. The defence was that the complainant was never residing in the disputed house after the death of Bikal. Even they denied the sonship of Bikal. Eventually the police did not take any action whereupon she filed a protest petition and accordingly the Petitioners along with two others stood their trial. 3. The defence was that the complainant was never residing in the disputed house after the death of Bikal. Even they denied the sonship of Bikal. They further averred that Bikal was never in possession and Shankar died in about 1946 when Champa being his daughter was residing therein and was also possessing the landed property left by Sankar. The learned Magistrate relying upon the admission of d.w. 2, and the prosecution witnesses convicted the Petitioners u/s 453, Indian Penal Code, and acquitted them of the charges under Sections 147 and 380, I.P.C. 4. In appeal it was argued that in view of the fact that there was a civil suit pending and a proceeding u/s 145 Code of Criminal Procedure which was started having been dropped and the property in question being the joint properties of Shankar and his brother Iswar, the Magistrate should not have held that the case falls under the mischief of Section 453, Indian Penal Code. It was further argued that no criminal intention has been proved. In view of the admission of p.w. 8 that the second Petitioner's wife delivered a child in the disputed house on the date of occurrence, the Magistrate should have come to the conclusion that the Petitioners were in possession of the house by the date of the occurrence. 5. The learned Sessions Judge relying on the evidence of p.ws. 3, 4, 5, 6, 8, and 9 came to the conclusion that the complainant Lochan Bewa had been residing in the disputed house ever since the death of Bikal Sethi sometime in 1952 and that she had been forcibly dispossessed on February 20, 1956. 6. The very same contentions were raised before this Court by, Mr. Sahu, it would be useful to give the background and the origin of the dispute. Admittedly the dispute is with regard to the properties belonging to Shankar Sethi. Shankar admittedly died in 1946. Thus, for nearly about ten years Champa being his only daughter had been possessing the house and the landed property of Shankar according to the Petitioners. Sahu, it would be useful to give the background and the origin of the dispute. Admittedly the dispute is with regard to the properties belonging to Shankar Sethi. Shankar admittedly died in 1946. Thus, for nearly about ten years Champa being his only daughter had been possessing the house and the landed property of Shankar according to the Petitioners. Thus it is improbable that the complainant as the widow of Bikal Sethi was in possession, when Bikal himself had no right to the disputed property in view of the fact that Champa was in possession of the same, and a false case has been started by the complainant. D.W. admitted that the complainant was staying with Bikal for about six years before his death and that she is now staying with her father for the last three years indicating thereby that though prior to the occurrence she was staying in the house of her father, she came to the village immediately before the occurrence. P.W. 5 President of the Punch proved the chowkidar receipts which bear the name of the complainant after Bikal's death and his evidence was that the house was originally owned and possessed by Shankar. Ext. 4, a sale-deed, discloses that Shankar and Bikal Sethi had executed certain documents in which Shankar admitted Bikal as his son. It was submitted at the Bar that Bikal was the maternal uncle's son's son and was living with Shankar. That however is not very material for the present case. There is also the evidence of the survey-knowing commissioner that the complainant had been residing in that house after the death of Bika1. The learned Sessions Judge had taken into consideration the evidence of p.ws. 3 to 6 and 8 and 9 and came to the conclusion that the complainant had been residing in the disputed house ever since the death of Bikal. It may be remembered that Bikal died in the year 1952 and the present dispute started in the year 1956 The learned Sessions Judge in his judgment observed: It is also possible that the Appellant No. 1 having brought the Appellant No. 2 with his mother and wife and having found that the latter was to deliver a child and while planning to disposes the complainant might have requested her to give him some room for the delivery. The finding in essence, is that the Petitioners had come into the house by the date of occurrence. It is admitted by p.w. 8 that a child born to the wife of Petitioner No. 2. In the petition of complaint the complainant herself had admitted this fact, but she had stated that the child was born a day after, that is on 21-2-1956. It is highly improbable that the second Petitioner's wife would have come on the day previous to take possession of the disputed house with the intent to dispossess the complainant. The learned Sessions Judge should have believed the evidence of p.w. 8, the Choukidar, and should have come to the finding that by the date of occurrence, the Petitioners were in the disputed house. 7. The question for consideration is if on the evidence on record the Petitioners were in the house by the date of occurrence, and whether a conviction u/s 453, I. P.C., is justifiable. Section 453 states that whoever commits lurking house-trespass or house-breaking shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. 'Criminal trespass' has been defined in Section 441 and it states that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there, with intent thereby to intimidate insult or annoy any such person, or with intent to commit an offence is said to commit criminal trespass. Section 444 defines "lurking house trespass by night". In order to bring the offence within the mischief of Section 453, it must be proved that the Petitioner had the intention to commit an offence. In this case nothing has been proved as to the part played by the Petitioners. The treatment of intention of the Petitioners by the learned Sessions Judge is highly unsatisfactory. Undoubtedly there is a civil proceeding pending between the parties and a proceeding u/s 145 of the Code of Criminal Procedure was drawn up subsequently and tried. In this case nothing has been proved as to the part played by the Petitioners. The treatment of intention of the Petitioners by the learned Sessions Judge is highly unsatisfactory. Undoubtedly there is a civil proceeding pending between the parties and a proceeding u/s 145 of the Code of Criminal Procedure was drawn up subsequently and tried. True it is that the civil suit and the 145 proceeding were filed subsequent to this occurrence, but one cannot shut his eyes to the fact that some struggle for possession after the death of Bikal: in about 1952 was going on. The Petitioners having been acquitted of the charges under Sections 147 and 380, I.P.C. I do not see how on the evidence on record, they can come under the mischief of Section 453, I.P.C. Accordingly, would set aside the order of conviction and sentence as recorded by the learned Sessions Judge, Cuttack, allow this petition and acquit the Petitioners and they are directed to be set at liberty forthwith and their bail-bonds are cancelled. Revision allowed. Final Result : Allowed