JUDGMENT : Misra, J. - The Petitioner has been convicted under Sections 454 and 380, Indian Penal Code and sentenced to R.I. for six months on each count and also to pay fine of Rs 25/ - in default to undergo R.I. for 15 days under each count, the substantive sentences to run concurrently. The prosecution case is that on 30th January, 1963 the Petitioner committed lurking house trespass in the dwelling house of the complainant between 3, to 4 p. m. and committed theft of J, trunk containing cash, some silver ornaments, one gold ornament, some clothings and some documents. Petitioner and the informant are agnates. While the informant was absent from his house, the Petitioner requested his wife Sita Dei, p.w.4 to go to his house to grind Borne kolthi. Sita Dei (p. wA) locked her house and went to the house of the accused leaving behind her two children. The accused committed theft while she was absent from her house. The accused stated to the police that he had concealed the ornaments in the bari and then gave recovery of the ornaments to the police by pointing out the places of concealment. The defence is one of denial. Both the Courts concurrently found that the Petitioner was guilty. 2. Mr. Misra advanced two contentions-(1) there was no evidence that the accused committed any offence u/s 454, Indian Penal Code and (2) the Petitioner being under 21 years of age is entitled to the protection of Section 3 or 4 of the Probation of Offenders Act, 1958 (Act XX of 1958) hereinafter to the referred to age the Act. 3. The first contention is that there is no evidence in support of the conviction u/s 454, Indian Penal Code. Section 454 reads thus: Whoever commits lurking house-trespass of housebreaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extend to ten years. 'Lurking house-trespass' has been defined in Section 443, Indian Penal Code. 'Lurking house-trespass' has been defined in Section 443, Indian Penal Code. Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building which is the subject of the trespass, is said to commit 'lurking house-trespass'. It is the admitted prosecution case that nobody saw the Petitioner entering into the house and committing theft. There is no evidence that the Petitioner took precautions to conceal such house-trespass. In the absence of any such evidence the conviction u/s 454 cannot stand. 4. The next question for consideration is whether any offence was committed u/s 451, Indian Penal Code. Section 451 runs thus: Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment shall be punished -With imprisonment of either" description for a term which may extend to two years, and "shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to Seven years. 'House trespass' has been defined in Section 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". The question for consideration is whether the Petitioner entered into the house of the informant to commit the offence of theft. 5. The learned Courts below have found the following facts as being established in this case: (i) The accused called p.w.4 to grind kolthi in his house. At that time there was nobody else in her house excepting her minor son and daughter. (ii) During the time when p.w.4 was grinding kolthi in the house of the accused, the accused went out telling her that he was going to collect a bag of dry leaves., (iii) When p.w.4 finished grinding of kolthi and came back to her house, she found the accused returning back with the empty bag. The accused stated to her that he did not collect dry leaves. (iv) On her returning back to her house she found the door leaves lifted and various articles sing. (v) The accused stated before the police that he concealed the ornaments and articles in his bari underneath the earth. The accused stated to her that he did not collect dry leaves. (iv) On her returning back to her house she found the door leaves lifted and various articles sing. (v) The accused stated before the police that he concealed the ornaments and articles in his bari underneath the earth. He gave recovery of the ornaments by pointing out the places of concealment. (vi) The ornaments were satisfactorily identified by p.w.4 as belonging to her. The question for consideration is whether on the aforesaid findings the Petitioner is liable to be convicted under Sections 380 and 451, Indian Penal Code. 6. The ingredients of the offence under Sections 380 and 51 are almost the same. For an offence u/s 380, Indian Penal Code the theft must be committed in a tent, vessels and building used as a human dwelling. Similarly for house trespass the entry must be into any building used as a human dwelling. u/s 451, if the offence intended to be committed is theft, the term of imprisonment may be extended to seven years, as it is in the case of Section 380. 7. The statement of the Petitioner before the police that be concealed the articles is admissible in evidence u/s 27 of the Evidence Act. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, their Lordships held that where in a burglary case, the accused in police custody made a statement to the police that "he would show the place where he had hidden the ornaments and that statement led to the discovery of the stolen ornaments, the whole of the statement relates distinctly to the discovery of ornaments and is admissible u/s 27. Thus the statement of the accused to the police that he concealed the ornaments of which he gave discovery is admissible in evidence. Under Section 144, illustration (a) of the Evidence Act the Court may presume that a man who is in possession of stolen goods soon after the theft" is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Whether he would be presumed as thief or receiver the stolen property would depend on the facts and circumstances of each case. Whether he would be presumed as thief or receiver the stolen property would depend on the facts and circumstances of each case. It has however been generally held that if the interval between the theft and the accused being found in possession is very small the presumption would be that he was the thief. The presumption would be that he would be the receiver if the interval is relatively larger. In this se the interval is small. Theft was detected on the very day and the accused gave recovery next day. The presumption could be that he was the thief. 8. It has been very satisfactorily established in this case that the ornaments and other articles which was the subject matter of theft were kept in the welling house of p.w.4. From the facts and circumstances found in this case that the accused called' away p.w.4 to do work in his house, during that period he went to collect dry leaves which in fact he did not collect, theft was committed just during that period when p.w.4 was working in the house of the accused and that later the accused gave recovery of the ornaments which he had concealed, the only reasonable inference is that it is the accused who committed the theft of the ornaments and other articles in the house of p.w.4. The convention u/s 380 is therefore well-founded. As the ingredient u/s 380, Indian Penal Code and Section 45), Indian Penal Code are almost common, no separate conviction u/s 451 is called for. The Petitioner is accordingly acquitted u/s 451, Indian Penal Code. His conviction under section, 380, Indian Penal Code must, however, stand. 9. The next contention is that the Petitioner is below 21 years of age and u/s 9 of the Act read with Section 3 or 4 he should be released after due admonition u/s 3 or probation of good conduct u/s 4. The meaning of expression "having regard to the circumstances of the case including the nature of the offence and the character of the offender, as used in Sections 3, 4 and 6 has been fully explained in Bisikesan Suna v. State Crl. R. No. 177/1965. The meaning of expression "having regard to the circumstances of the case including the nature of the offence and the character of the offender, as used in Sections 3, 4 and 6 has been fully explained in Bisikesan Suna v. State Crl. R. No. 177/1965. The view expressed therein was to the following" effect: An expression almost in similar language has been used in Section 562(1), Code of Criminal Procedure which is to the effect "regard being had to the age character or antecedent of the offender and to the circumstances under which the offence was committed". The is expression has received judicial construction in several well known authorities. The tests laid down under that section are that the exercise of power under" the section is entirely in the discretion of the Court to be exercised according to the circumstances of each case. The fact that an offender is a first or a youthful offender is by itself not Sufficient to invoke the section. Both the conditions are the first essentials without which the section, would have no application. Further restriction has been imposed after a youthful offender commits a first offence. The section is generally made applicable where a, youthful first offender succumbs to sudden temptation or uncontrollable impulses or does a thoughtless act or acts under the influence of other, s. The section is not to be applied to cases where the offence was an act of daring and reprehensible nature, or the commission of the offence applied previous preparation or deliberate effort on the part, of the accused or where the conduct shows, a design or a general character of craft and deceit. It is not necessary to refer to various authorities dealing with the aforesaid tests. Neither it is possible to give a comprehensive enumeration to cover all cases. The tests u/s 562(1), Code of Criminal Procedure are applicable to Section 3,4 and 6 of the Act more liberally. 10. This aspect of that matter does not appear to have been raised before the Courts below. u/s 11 of the Act the question may be canvassed before an appellate or revisional Court. The case is accordingly rent and to the learned Additional Sessions Judge, Cuttack to consider whether the Petitioner is entitled to the benefit of Section 6 in the facts and circumstances of this case. 11. u/s 11 of the Act the question may be canvassed before an appellate or revisional Court. The case is accordingly rent and to the learned Additional Sessions Judge, Cuttack to consider whether the Petitioner is entitled to the benefit of Section 6 in the facts and circumstances of this case. 11. It is to be noted that the conviction of the Petitioner u/s 380 stands. Whether the sentence passed by the learned Magistrate would be maintained or set aside would depend upon the conclusion of the learned Sessions Judge as to the applicability of Section 6 of the Act in the facts and circumstances of the case. The conviction and sentence passed u/s 454, Indian Penal Code is set aside and the revision is allowed as indicated above. Revision allowed in part. Final Result : Allowed