JUDGMENT M. H. Beg, J. - The appellants Ramphal, Budhi, Bhole son of Durjan, Ram Singh, Bholey son of Rupi Jadav and Shamsher have been convicted under Section 147 I.P.C. and sentenced to one years R. I. and also under Section 458 I.P.C. and sentenced to two years R. I. In addition, they have been convicted under Section 323/149 I.P.C. and sentenced to six months R. I., and also under Section 366/511 I.P.C. and sentenced to two years R. I. 2. According to the prosecution case, as related by Khushali (P.W. 2), the appellant Ramphal wanted to marry Km. Omwati, the daughter of Khushaii (P.W. 2), but Khushali had made other arrangements for the marriage of Km. Omwati. Ramphal went to Khushali and asked him for the hand of Km. Omwati, but Khushali refused and said that she will be married where he had decided to marry her and not with Ramnhal appellant. Thereupon, Ramphal is alleged to have threatened to marry Km. Omwati by force and to take her away. This threat had scared Khushali who used to send his daughter Km. Omwati to sleep at night at the house of Udal (P.W. 3), the brother-in-law of Khushali. Two days after this threat, during the night between May 30 and 31, 1963, at about midnight, Khushali (P.H. 2), who was asleep in the open courtyard of his house, was awakened by the sound of somebody jumping into his courtyard. He then saw some persons who are alleged to have opened the door of the house from inside so as to let in the whole company of 8 to 10 persons. At that time, a lantern was said to be lit in the courtyard. Ramphal was one of the persons who came inside and asked Khushali where his daughter was. When Khushali told him that she was not in the house, Ramphal and others started beating Khushali. Khushali and his wife raised an alarm. This attracted Dina Nath (P.W. 4) and Gajraj (P.W. 5) and Ahbaran (P.W. 6) and others to the house. Some of these persons had torches. In addition, Gajraj (P.W. 5) fit some bundles of "bhara" wrncfi were lying outside the wall of Khushalis house. This gave out a good deal of light. Khushali and his wife raised an alarm. This attracted Dina Nath (P.W. 4) and Gajraj (P.W. 5) and Ahbaran (P.W. 6) and others to the house. Some of these persons had torches. In addition, Gajraj (P.W. 5) fit some bundles of "bhara" wrncfi were lying outside the wall of Khushalis house. This gave out a good deal of light. In this light, the witnesses, who came to the rescue of Khushali, namely, Udal (P.W. 3) Dina Nath (P.W. 4), Gajraj (P.W. 5) and Ahbaran (P.W. 6) saw the persons who had invaded the house of Khushali as the invaders were going away. They had also heard these persons trying to extract from Khushali the information about the whereabouts of his daughter Km. Omwati. After the arrival of the witnesses, the members of the invading party, who are well known to the witnesses, tried to run away. But, they were chased and three of them, namely, Ram Singh, Shamsher, and Bholey son of Rupi Jatav were arrested, and the rest ran away. A first information report was lodged on May 31, 1962 at 6-50 a.m. at P. S. Faridpur in the district of Bareilly, at a distance of four miles from village Tatarpur, where the occurrence had taken place. 3. The trial court considered the evidence carefully and has, in my op:nion, very properly, relied upon a number of circumstances to arrive at the conclusion that the prosecution version is correct. Firstly, Khushali (P.W. 2) who was examined by Dr. Mukherji (P.W. 1) on May 31, 1963 at 8 a.m. had three simple injuries on his body including a swollen and bleeding gum and a loose front tooth. There was no suggestion by the defence that these injuries were not genuine. Secondly, the fact that the three accused persons were apprehended in the chase was borne out from the evidence of the Station Officer Chandrapal Singh (P. W. 8) who went there next morning and found the three appellants who were unarmed and in the custody of the villagers. It is difficult to believe that they could be arrested and kept in custody without any objection by any body if they had not participated in the attacks. Thirdly, the cross-examination of Khushali (P.W. 2) itself indicates that the case of Ramphal was that Km. Omwati wanted to marry Ramphal. It is difficult to believe that they could be arrested and kept in custody without any objection by any body if they had not participated in the attacks. Thirdly, the cross-examination of Khushali (P.W. 2) itself indicates that the case of Ramphal was that Km. Omwati wanted to marry Ramphal. This suggestion in cross-examination, supports the prosecution version that Ramphals desire to marry Km. Omwati provided the motive. Fourthly, the Investigating Officer has proved that the appellants Ramphal and Bholey, son of Durjan, were absconding so that proceedings had to be taken, under Sections 87 and 88 Criminal Procedure Code, against them. In addition, I find that the prosecution witnesses, whose evidence has been placed before me thoroughly, remained unshaken under cross-examination. The allegation of the appellants that they were implicated due to enmity was not established either by anything elicited under cross-examination or by other evidence. The trial court, however, acquitted two of the accused persons because Gajraj (P.W. 5) had stated that he had not seen them amongst the invaders. 4. It has been contended that the light at the scene and time of alleged occurrence was not proved to be sufficient. It was pointed out that the Investigating Officer had not taken the torches in his possession and that the nature of the light omitted by the bundle of some crop known as "bhara" was also doubtful. I do not think that this argument is very helpful to the appellants who were all very well known to the prosecution witnesses. Only a slight amount of light was enough to enable them to make out w ho these persons were. Another contention was that the offences alleged against the appellants could not have been committed without any attempt by the offenders to conceal their identities. 1 do not think that this is a valid reason for rejecting the prosecution version because the whole objection of the attack appears to have been to carry out the threat which had been given by Ramphal to carry away Km. Omwati. As the trial court observed, night time was chosen in order to enable the invading party to carry out its purpose more easily and with the least opposition resulting from a surprise attack. 5. Two other contentions have been advanced by Mr. Sharma on behalf of the appellants. Omwati. As the trial court observed, night time was chosen in order to enable the invading party to carry out its purpose more easily and with the least opposition resulting from a surprise attack. 5. Two other contentions have been advanced by Mr. Sharma on behalf of the appellants. The first of these is that no offence under Section 3661511 I.P.C. could be said to have been committed even if the prosecution evidence were accepted. Reliance is placed upon the words of Section 511 I.P.C. which makes it necessary for "Acts towards the commission of the offence" to be committed before an attempt becomes punishable under Section 511 I.P.C. The contention is that no act "towards the commission of abduction or kidnapping" of Km. Omwati, who was not present at the house, could be committed by Ramphal and his associates. It is contended that, at the most, it could be said that there was preparation to commit the offence of taking away Km. Omwati if necessary. It was left to ones imagination to guess how Km. Omwati would have reacted to any proposal made to her by Ramphal as she was not present. Even the age of Km. Omwati was not proved. It was also pointed out that the appellants were not alleged to have gone inside the house at all, but they were only alleged to have beaten Khushali in order to find out where Km. Omwati was. Before they could make an attempt to take away Km. Omwati they had to find out where Km. Omwati was. It was contended that the attempt to find out could only be said to constitute preparation and that an attempt to abduct or kidnap or take Km. Omwati had not even begun. Thus, it was contended that the conviction of the appellants under Section 366,511 I.P.C. was erroneous. 6. Reliance was placed on behalf of the appellants on Queen Empress v. Baku, I.L.R. 24 Bom. 287 where it was held: "Mere intention not followed by any act cannot constitute any offence, and an indirect preparation, which does not amount to an act which amounts to a commencement of the offence, does not constitute either a probable offence or an attempt or an abetment oi the same." 7. 287 where it was held: "Mere intention not followed by any act cannot constitute any offence, and an indirect preparation, which does not amount to an act which amounts to a commencement of the offence, does not constitute either a probable offence or an attempt or an abetment oi the same." 7. In that case, a girl, proved to be a minor, under 16 years of age, had been actually taken from Sholapur to Tuljapur and dedicated to Goddess Amba. The case involved a consideration of jurisdiction of the trial court when the kidnapping had taken place outside the British India and when there was no certificate of a political agent or sanction of the local Government as required by Section 188 of the Criminal Procedure Code. It also directly only involved a consideration of the question whether there was any abetment within the meaning of Section 102-A I.P.C. Nevertheless, the above-mentioned observation, made in the course of the judgment, does support the contention advanced by Mr. Sharma. 8. It is not necessary in this case to rely upon Bakus case (supra) and the question can be decided more directly by reference to general principles and the words of Section 511 I.P.C. it is clear that when Ramphal held out a threat to Khushali that he will marry Km. Omwati by force, the appellant was only expressing his intention. Mere intention, as we know so well, cannot constitute a crime. The next stage is that of preparation to commit an offence. That stage was certainly reached when Ramphal collected a number of persons, some of whom were armed with lathis, in order to threaten and overawe Khushali, and to carry away, if necessary, Km. Omwati by force. The purpose of the assembly was manifested. On behalf of the appellants, it was argued that the matter did not proceed beyond preparation. On the other hand, it was contended, on behalf of the State, relying upon the illustrations to Section 511 I.P.C., that it is not necessary that actual commission of the offences intended should be possible in order to constitute an attempt. The two illustrations to Section 511 I.P.C. are as follows:- "(a) A make an attempt to steal some Jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. The two illustrations to Section 511 I.P.C. are as follows:- "(a) A make an attempt to steal some Jewels by breaking open a box, and finds after so opening the box, that there is no jewel in it. He has done an act towards the commission of theft, and, therefore, is guilty under this section. (b) A makes an attempt to pick the pocket of Z by thrusting his hand into Zs pocket. A fails in the attempt in consequence of Zs having nothing in has pocket, A is guilty under this section." 9. It is true that a look at the illustrations shows that it is not necessary, in order to constitute an attempt, that it should be possible to commit the offence intended to be committed. But, it is clear, even from these illustrations, that the particular act constituting an attempt must ge committed in the belief and with the intention of committing the actual offence which is being attempted. In the present case, there is no evidence that the appellants believed that Km. Omwati was in the house of Khushali at the time of the occurrence, could they have done any act believing and intending that they were actually abducting Km. Omwati? It appears that Ramphal and his associates did not go inside the house to search for her. They seem to have beaten Khushali with the object of finding out the whereabouts oi Km. Omwati and not in the course of any attempt to take her. It has to be borne in mind that the "attempt" which is punishable under Section 511 I.P.C. is one which is restricted in meaning and ambit by the words of Section 511 I.P.C. This section does not cover all that may, broadly speaking, be spoken of as an "attempt" in common parlance. In the present case, the mere entry into the courtyard of the house, where Khushali told the appellants that Km. Omwati was not there, followed by the beating of Khushali, could be more properly and reasonably viewed as parts of an attempt to find out where she was than as parts of an attempt to abduct her which had not, strictly speaking, begun. 10. Omwati was not there, followed by the beating of Khushali, could be more properly and reasonably viewed as parts of an attempt to find out where she was than as parts of an attempt to abduct her which had not, strictly speaking, begun. 10. The next contention advanced is that the ingredients of an offence under Section,458 I.P.C. have also not been made out inasmuch as the entry of the appellants was into an open courtyard which could not be described as a "building" within the meaning of Section 442 I.P.C. The section defines "house trespass" as follows :- "442. Whoever commits criminal trespass by entering into or remaining in any building, tent, or vessel used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit house trespass". Explanation. The introduction of any part of the criminal trespassers body is entering sufficient to constitute house trespass." 11. The term "building" has not been defined anywhere by the Indian Penal Code. In Moir v. Williams, 1892(2) Q.B.D. p. 264 at p. 270 Lord Esher pointed out that the ordinary and usual meaning of a building is "an inclosure of brick or stone work covered in by a roof". Lord Atkinson held, in Corporation of the City of Victoria v. Bishop of Vankorer Island, A. I. R. 1921 P. C. p. 240 at p. 244 that the ordinary meaning of the word "building" is: "a thing composed of the fabric of the building and the ground that the fabric rests upon and enclosed". In Baladin v. Lakhan Singh, AIR 1927 Allahabad p. 214. mw Iqbal Ahmad, J., following Mori v. Williams(supra) held that even a house in ruins, without a door and roof, would not be a "building". In Mulchand v. K. E., A.I.R. 1925 Lah. p. 279(2) it was held that a so called "yard" enclosed by , low walls on three sides only was not a "building". 12. It was certainly held in Kartar Bingh v. State, 1956 Crl.L.J. p. 654 by a Division Bench oi the Punjab High Court, that a courtyard surrounded by a wall about 3 ft. 'high would constitute a "building". 12. It was certainly held in Kartar Bingh v. State, 1956 Crl.L.J. p. 654 by a Division Bench oi the Punjab High Court, that a courtyard surrounded by a wall about 3 ft. 'high would constitute a "building". That decision, with great respect, does not seem to me to rest upon a definition of the term "building", but it proceeds upon an assumption that a place used for human dwelling and described as Fhaveli" would be a building. The learned Judges observed: "It was argued on behalf of the appellants that they had entered only a courtyard, and therefore, they cannot be said to have entered a building and therefore, they were not guilty under Section 452, I.P.C. There is, however, no doubt that the building in the present case was used as a human dwelling. Kartar Singh (P.W. 14) the complainant has described his haveli in the following words. My residential house is situated in the outskirts of village Thathian, I also tether my cattle in that house and reside there with family. Its enclosure wall is about three feet high. I, Trilok Jogindar Singh and Anokh Singh P. Ws. who are my sons and other members of my family reside in that house. "This description is supported by the plan produced in the case. Kartar Singh (P.W. 14) was not cross-examined regarding this matter. I, therefore, hold that the court-yard which the appellants entered was, in the circumstances, a building, and, therefore, they were rightly convicted under Section 452 I.P.C." 13. Apparently, in Kartar Singh's case supra) no definition of a "building" was placed before the learned Judges, a building is necessarily a structure with a roof, as Lord Usher held in Moir v. Williams (supra), I fail to see how an open space, even though used for the purpose of sleeping within the compound of a house, can strictly constitute a "building". Even if the word "building" were more widely construed here to mean any kind of structure erected by the process of "building" with the ordinarily used building materials, there must be proof that there was something "built" where trespass was committed. In the present case, the courtyard was not shown to consist of any land built upon at all. Even if the word "building" were more widely construed here to mean any kind of structure erected by the process of "building" with the ordinarily used building materials, there must be proof that there was something "built" where trespass was committed. In the present case, the courtyard was not shown to consist of any land built upon at all. If it was the intention of the Legislature to include, within the term "building", spaces of uncovered land enclosed by the walls of a house this could easily have been made clear. Even the use of a mere comprehensive would such as "house" or "residence" may have sufficed. But the specific word building" was employed by the Legislature. And, I find that Section 441, I.P.C. which defines "criminal trespass", speaks of entry upon "any property in the possession of another". Such entry is, therefore, distinguished by the Legislature from an entry into a "building". It is not enough that there should have been an entry effected in one of the ways mentioned in Section 445 I.P.C. The mode of entry in the present case would certainly be covered by Section 445 clause (6) I.P.C. The entry has, however, to be in a "building". In my opinion, the courtyard in the present case could not be spoken of as part of a building, as it was not shown to consist of any kind of structure whatsoever. 14. Although no offence under Section 458 I.P.C. was proved to have been committed for the reasons given above, yet, the offence under Section 447 I.P.C. was certainly committed by each of the appellants. They had also joined together to overawe Khushali by show of force, and, on finding that his daughter was not there, they remained there to beat him. Therefore, an offence under Section 147, I.P.C. was also committed. It is true that Khushali was not beaten by each of the members of the unlawful assembly who invaded his house, but this is not necessary when they are being made liable vicariously under Section 149, I.P.C. Hence, the offence under Section 323/149 I.P.C. has been duly established against each of the appellants. 15. It is true that Khushali was not beaten by each of the members of the unlawful assembly who invaded his house, but this is not necessary when they are being made liable vicariously under Section 149, I.P.C. Hence, the offence under Section 323/149 I.P.C. has been duly established against each of the appellants. 15. In the result, I allow the appeal only to the extent that I set aside the convictions of the appellants under Sections 366/511, I.P.C. and 458, I.P.C. I sugstitute for the conviction under Section 458 I.P.C. a conviction of each of the appellants under Section 447, I.P.C. and sentence each of them to three months R.I. and to pay a fine of Rs. 50/- for this offence, and, in default of. payment of fine, to rigorous imprisonment for a further period of three months. The convictions of the appellants under Section 147, I.P.C. are also maintained, but the sentences for this offence awarded to Ram Singh and Bholey son of Rupi Jatava and Shamsher, who were unarmed, are reduced from one years R. I. to six months R.I. The sentence of one years R. I. under Section 147, I.P.C. upon others and the convictions and sentences of all the appellants under Section 323/149, I.P.C. are also maintained. All sentences, except the sentence in default of payment of fine, shall run concurrently. Subject to the modifications indicated above, this appeal is dismissed. The appellants must surrender forthwith and serve out the remaining periods of their sentences.