Judgment :- 1. In Sessions Case No. 26/59 the accused who was charged for offences under Ss. 457 and 380 read with S.511 of the Indian Penal Code was found guilty but convicted under S.456 I.P.C., by the Assistant Sessions Judge of Tellicherry. In appeal to the Sessions Court, the learned Sessions judge quashed the conviction and acquitted the accused. On a perusal of the calendar, notice was issued by this court to the accused to show cause why the acquittal should not be set aside. 2. The facts material for the determination of the question raised in this case may be briefly stated: On the night of 15-5-1959 while Pw.1 was sleeping on the verandah of his house he heard cries from inside the room where his wife was sleeping that a thief has entered the house. He woke up and found a person getting out of the door and running. He gave chase calling out 'thief, thief, & at a place about 150 yards from his house the accused was apprehended. Pw. 3 and some others who heard the cry also reached the place. The accused was then taken to one Pokkan's shop and in the morning Pw.1 made a report Ext. P.1 to the Adhikari. Under instructions from him the accused was produced before the police. The police after investigation charged the accused. 3. The accused denied having entered the home of Pw.1 and would have it that on that day at about nine in the morning there was an exchange of words between him and Pw.1 and that Pw.1 and others took him to the police station. In the committing Magistrate's Court he only denied that he had entered the house, but did not gay anything about the morning incident. On a consideration of the evidence the learned Assistant Sessions Judge accepted the evidence of Pws.1 to 3 and found that the accused had actually entered Pw.1's house, but he found that there was no satisfactory evidence of house-breaking and no evidence of attempt to commit theft. According to the learned Assistant Sessions Judge there was also no evidence that the entry into house was with the object of committing theft and he, therefore found the accused guilty only of the lesser offence under S.456, IPC. 4. The matter was taken up in appeal. According to the learned Assistant Sessions Judge there was also no evidence that the entry into house was with the object of committing theft and he, therefore found the accused guilty only of the lesser offence under S.456, IPC. 4. The matter was taken up in appeal. The learned Sessions Judge concurred in the findings of the trial judge that the accused did enter the house, but in view of the fact that the trial court found that there was no intention on the part of the accused to commit theft and having found no other clear intention for the entry the conviction under S.456 was set aside and the accused was acquitted. 5. The learned Sessions Judge relied on the decision in Sankarasan Borbal v. The State (1957 Crl. L. J. 286) for arriving at the conclusion that the conviction is unsustainable, but did not consider the further question whether a retrial of the accused was necessary. In the case referred to by the learned judge that question was considered and on the particular facts of that case it was held that there is no need for a retrial. 6. The first question that arises for decision is whether a conviction under S.456 IPC., on a charge under S.457 IPC., is sustainable. The earliest decision on this question is in Jharu Sheik v. King Emperor (1912) 16 C. W. N. 969). There the accused was charged under S.457 and 380 IPC. As regards the charge under S.457, the intent imputed to him was the commission of theft. The defence was a complete denial of the incident. The court held that no conviction could properly be made under S.456 till the charge under S.457 had been amended. The reason assigned was that the accused must have been seriously prejudiced by not knowing what really was the charge against him. 7. This decision has been followed in Mahomed Hossein v. Emperor (AIR. 1914 Cal. 663) and in a later Patna decision reported in Raghu Singh v. Emperor [AIR. 1920 Patna 590). These decisions were again reviewed in another Patna decision, reported Balkishwar Singh v. Emperor (AIR) 1922 Patna 5) where it was pointed out that prejudice is generally caused if an accused is convicted of having entered a house with an intention different from that specified in the charge. 8. 1920 Patna 590). These decisions were again reviewed in another Patna decision, reported Balkishwar Singh v. Emperor (AIR) 1922 Patna 5) where it was pointed out that prejudice is generally caused if an accused is convicted of having entered a house with an intention different from that specified in the charge. 8. In a subsequent Calcutta decision reported in Hajari Sonar v. Emperor (27 Cal. W.N. 344) the same point was further emphasised and it was observed that when a charge has been definitely framed in which theft is alleged, the accused cannot be convicted of house trespass with some other object, without an amendment of the original charge unless the court is satisfied that he has not been prejudiced in his defence by the omission to amend the charge. 9. Following all these decisions the Orissa High Court in Sankarasan Boral v. The State (1957 Crl. L.J. 286) referred to by the learned judge held: "When a person is charged under S.457 IPC., on the allegation that he entered the dwelling house of another person with the intention of committing theft it will not be legal to convict him under S.456 on the ground that the entry was made with the intention of committing some other offence or with the intention of annoying or insulting the inmates". 10. The decision in 16 C.W.N. 696 and all the other cases that followed it do not formulate any inflexible rule of universal application that under no circumstances can a conviction be made under S.456 when the accused has been charged for the commission of an offence under S.457 IPC. The decision must be limited to its special circumstances and in this connection the warning given by Lord Halsbury L.C. in Quinn v. Leatham (1901 A.C. 495) may be usefully borne in mind: "Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but governed and qualified by the particular facts of the case in which such expressions are to be found." It cannot, therefore, be held that merely because the intent imputed to the accused to sustain a conviction under S.457 has failed, no conviction can be made under S.456. Although the specific intent, namely, the intent to commit theft is not established yet it is competent to the court to convict an accused under S.456 and the only consideration would be whether the accused had been prejudiced at the trial by the conviction for a minor offence, in conformity with S.238 Cr. P. C. 11. S.238 Crl. P C. provides that when a person is charged with an offence and facts are proved which reduces it to a minor offence, be may be convicted of the minor offence. This view was adopted in Queen Empress v. Balu (1886) Ratan Unrep Cr. C. 293 There the accused had been convicted by the trial court under S.457; on appeal the conviction was altered to one under, S.414 The High Court held that S.457 applied to what might be called a composite offence and consequently under S.238 Cr. P. C. the accused might be convicted of any element of composite offence which constituted a minor offence. 12. A similar course was followed in Emperor v. Ishri (ILR. 29 All. 46) where the accused was charged under S.457, but convicted under S.456 IPC. Reference may also be made to the decision in Karali Prasad Guru v. Emperor [ILR. 44 Cal. 358] where the entire case law has been reviewed and it was held that the conviction under S.456 of the Penal Code was legal. 13. It is well-settled that to sustain a conviction under S.456 it is not necessary to specify the criminal intention in the charge as it should be in a charge under S.457 IPC.; it is sufficient if a guilty intention is proved, such as is contemplated by S.441. Reference may be made to the ease in Kailash Chandra Chakrabarty v. Queen Empress [16 Cal. 657]; Balamkand Sam v. Chandamram [22 Cal. 391]; Premanundo Shah v. Bindabun Chung [22 Cal. 994] and Ram Rang v. Emperor [2 Crl. L. J. 279]. 14. I am unable to follow the reasoning of the learned Assistant Sessions Judge that no theft was committed and so his entry into the house could not have been with the object of committing theft. The learned judge disbelieved the defence version and accepted the prosecution story that the accused did enter inside the house and ran away on being discovered and was apprehended. The accused belongs to a place about 10 miles away. The learned judge disbelieved the defence version and accepted the prosecution story that the accused did enter inside the house and ran away on being discovered and was apprehended. The accused belongs to a place about 10 miles away. He is a stranger to the locality and has no business to be there. According to Pw.1 the accused is not even known to them. No explanation is offered by the accused as to why he entered the house. What then could have been his intention in entering into the house except to commit some offence or to intimidate, insult or annoy the persons in possession. The court can, under such circumstances, come to the necessary conclusion that the entry was effected with an intent such as is provided for by S.441, IPC. 15. As stated by Banerjee, J. in 22 Cal. 391, the intention may be determined as well from direct evidence as from the conduct of the party concerned and the attendant circumstances for as Lord Ellenbrough, C.J. said in R. v. Dixon (3 M. & S.11 at p.15): "it is universal principle that when a man is charged with doing an act, the intention is an inference of law resulting from doing the act". 16. A Division Bench of this court in Kunju Moideen Methararu v. Kandan [1958 KLT.1048] had to consider this question. Iyengar, J. discussing exhaustively the case law on the subject stated that the presumption of the necessary intention may be drawn where a person who has absolutely no interest in land in possession of others forcibly takes possession of the property. In the words of Ayling, J. in Vutlappa v. Bheema Row [ILR. 41 Mad. 156]: "A mere knowledge that the trespass is likely to cause insult or annoyance to the owner of the property does not amount to an intent to insult or annoy within the meaning of S.441, Indian Penal Code; but where the trespasser knows that his trespass is practically certain in the natural course of events to cause insult or annoyance to the owner of the property, it is open to the court to infer an intent to insult or annoy. It is a question of fact whether this presumption of intent is displaced by proof of any independent object of the trespass." Therefore if the circumstances of a particular case warrant the inference that the entry was with intent to commit any offence within the meaning of S.441 IPC., conviction under S.456 will be proper provided that the accused has not been prejudiced in his defence. 17. The learned Sessions Judge ought to have considered all these aspects and found out whether the accused was really misled in his defence by a conviction under S.456, IPC. without a specific charge under that section. He has failed to do so and the order of acquittal is, therefore, not quite proper and normally ought to be set aside by this court and sent back for fresh disposal. However, I do not think a retrial is necessary in this case. The accused had already been in jail for a considerable period from 15-5-1959 on which date he was arrested until he was ultimately acquitted by the Sessions Judge on 31-3-1960 and I consider this would be sufficient to meet the ends of justice.1 he rule issued by this court is therefore, discharged and the order of acquittal is confirmed.