Judgment 1. There is only one petitioner in this case and he was convicted by the learned Magistrate for the offence under S.457, Penal Code and was sentenced to undergo rigorous imprisonment for six months. He preferred an appeal which was heard by the learned Assistant Sessions Judge and the latter altered the conviction into one under S.451, Penal Code and also reduced the sentence by three months. According to the conviction which now stands the petitioner has been convicted under S.451, Penal Code and sentenced to undergo rigorous imprisonment for three months. 2. According to the prosecution, on 14-8-1965, at about 10 p.m., the petitioner was seen on the roof of the house of the informant who is P.W. 3 in this case, and on an alarm being raised by P.W. 3, the petitioner jumped from there to the roof of the neighbouring house and ultimately when he came down he was caught in the Khand. After having been caught and arrested there, he was taken to the police station where a first information report was lodged and a case was instituted against him. 3. The defence of the petitioner was that he was not guilty and that on account of old enmity with the informant he had been falsely implicated and further according to the petitioner what happened was that he was coming from his hair dressing saloon after having closed it in the night and while going to his house, he was caught by the informant and his men and further that he had some money with him which was also taken from him and then he was falsely implicated. 4. The learned Magistrate held that the prosecution had been able to prove the case against the petitioner and also disbelieved the defence version and the learned Assistant Sessions Judge on appeal also held that the prosecution had been able to prove the case. The petitioner being aggrieved thereafter has preferred this revision and in this two main points have been submitted. One of these is that the evidence on record does not disclose that the petitioner had been identified as the person who was on the roof of the house. The second point which has been urged is that the ingredient of the offence under S.451, Penal Code had not been proved and so the petitioner could not have been convicted under that section. 5. The second point which has been urged is that the ingredient of the offence under S.451, Penal Code had not been proved and so the petitioner could not have been convicted under that section. 5. I may take up the first point which has been urged in this connection and as stated above, according to the prosecution, the petitioner was seen on the roof of the house. It is true, as it appears from the evidence and very rightly indeed the petitioner at that time could not have been identified when ho was on the roof of the house, but the evidence on record shows that the witnesses felt and saw that there was some one on the roof of the house. There was the consistent evidence of the witnesses examined on behalf of the prosecution that on the night of the occurrence they heard hulla of chore, chore and on hearing the same when they came out, they saw a man jumping from one roof of the house to another and immediately jumping into a Khand where that particular man was caught hold of and he was found to be none-else, but the petitioner himself. There was the evidence of P.W. 3, that is, the informant himself that he woke up on hearing some sound on his roof and also breaking of tiles with which the roof of the house, was partly made and that after coming out into the courtyard, he found a man on his roof at which he raised an alarm of chore, chore whereupon that man jumped from the roof of his house to the adjoining roof of the house of Kameshwar Pandey and then he was jumping from one roof to the other. It appears to me from the evidence which has been believed by both the Courts below that the person who was on the roof was seen jumping from one roof to the other and ultimately he was caught hold of in the Khand. It is not a case where there were more than one person and in the light of the evidence and the circumstances, there can be no doubt about the identity of this petitioner when he was seen jumping from one roof or the other and ultimately he was caught in the Khand. There is thus no substance in this point. 6. There is thus no substance in this point. 6. The next point which has been urged is rather interesting because the submission which has been made in this contention is that even assuming that the petitioner was on the roof of the house, it will not be a house trespass as contemplated by the Indian Penal Code and the second point which has been urged in this connection is that there was no evidence to show that the other ingredient of the section was also present, viz. that he had the intention to commit an offence. The Indian Penal Code contemplates two kinds of offence of trespass, one of which is a criminal trespass and the other is a house trespass. Criminal trespass has been defined in S.441 of the Penal Code which lays down 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." House trespass has been defined in S.442 of the Penal Code and it is as follows : "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." 7. The two definitions will show that as far as the criminal trespass is concerned, it is committed when any body enters into or upon the property of : any one with intent, of course, to commit an offence or to intimidate...but S.442 lays down that house trespass can be only if any one enters into a building. The conviction, as stated above, of the petitioner has been under S.451, Penal Code. The conviction, as stated above, of the petitioner has been under S.451, Penal Code. This section lay down : "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." It has been urged that the conviction under S.451, I.P.C. was bad because no house-trespass had been committed by the petitioner, inasmuch as, going upon the roof of the house will not tantamount to an entry into a building as content, plated by S.442 of the Penal Code. It may be mentioned here that this cannot be doubted that even if the conviction under S.451, I.P.C. cannot be sustainable on account of the fact that going on the roof of the house will not be entering into a building still the petitioner can be convicted for criminal trespass only provided of course that the intention to commit an offence be present. The learned counsel for the petitioner in support of his contention that going on the roof of the house will be not entering into the building has relied on a decision of the Allahabad High Court in the case of Hiralal V/s. State, reported in (1951) 49 All LJ 461. In that case it was held by a Single Judge of the Allahabad High Court that going on to the roof of a house does not amount to an entry into a building and that in a case covered by S.442 of the Penal Code the entry must be into the building or remaining in the building and the person who is on the roof of a building cannot be said to be in the building. The Hon ble Judge for this view of his has relied on three decisions, one of which is in the case of Walidad alias Walya V/s. Emperor, reported in (1907) 6 Cri LJ 444. The Hon ble Judge for this view of his has relied on three decisions, one of which is in the case of Walidad alias Walya V/s. Emperor, reported in (1907) 6 Cri LJ 444. This was a case of the Punjab (Lahore) High Court and the accused in that case was found on the roof of the house of the complainant and after striking at the complainant with a stick had a struggle with him and then the accused jumped into the yard of a neighbouring house and in the course of the struggle the accused also dropped the stick and a sandheva (a house-breaking implement). The accused in that case had been convicted under S.457/S.511, I.P.C. that is, for the offence of an attempt to commit house breaking. It was, in the circumstances of that case, that the mere presence on the roof of the house could not be construed as an attempt to commit an offence under S.511, I.P.C., but he was held guilty of criminal trespass punishable under S.447 of the Penal Code. On a perusal of the judgement of that case, I find that there was no discussion of this aspect of the matter whether going on the roof of a house would be a house trespass or not and the only point which had been urged before their Lordships was that the mere presence on the roof of the house would not be sufficient to prove that there was an attempt of committing house breaking. In my opinion, therefore, this ruling cannot be an authority on the point that going on the roof of the house is not house trespass. 8 The other decision on which reliance was placed in (1951) 49 All LJ 161 is a case of Batwa Khan V/s. Emperor, reported in (1919) 52 Ind Cas 59 : (20 Cri LJ 571). This was a case of Lower Burma Chief Court. In that case the accused was detected on the roof of a bazaar with an open clasp knife in his hands and two gunny bags and it was found that he had come there with the intention of committing theft. This was a case of Lower Burma Chief Court. In that case the accused was detected on the roof of a bazaar with an open clasp knife in his hands and two gunny bags and it was found that he had come there with the intention of committing theft. There also the conviction was under S.457 read with S.511, I.P.C., that is, for the attempt of house breaking by night and there also the main point which had been urged was that the conviction under S.457/S.511 was bad because that even if it be true that the accused was found on the roof of the house with a clasp knife, the matter had not proceeded beyond the stage of preparation, that is, it had not arrived at the stage of an attempt for which some overt act was inquired. There also the conviction was altered to S.447, I.P.C., that is, only for criminal trespass. Here in this case also there was no discussion or finding on the point whether going on the roof of the house would be house trespass or not. It may be argued that inferentially it will fellow clearly that only the offence of criminal trespass and not the offence of house trespass was committed, but as pointed above, there was no definite finding on this point. 9. Now, reverting again to the decision reported in (1951) 49 All LJ 461 their Lordships relied on another decision in the case of Nanhua V/s. Emperor, reported in 34 Cri LJ 1181 : (AIR 1933 Lah 433 (1)). This was also a case of the Lahore High Court and here in this case, of course, it was held by the Single Judge of the Lahore High Court that going on to the roof of a house is not entering into a building. In that case that person reached the roof of a house, but jumped down from the back of the roof and it was held that he cannot be said to have entered into the building though he is certainly guilty of an attempt of committing an offence of house breaking. In that case that person reached the roof of a house, but jumped down from the back of the roof and it was held that he cannot be said to have entered into the building though he is certainly guilty of an attempt of committing an offence of house breaking. His Lordship referred to the facts as they had been found at p. 1182 (of Cri LJ) : (at p. 433 (1) of AIR) and from these facts it appears that the courtyard consisted of a walled enclosure with four kothas opening into it and an outer door leading into a side street. The accused in that case reached the roof of the house and then had started to go down through the ladder towards the courtyard. He had not gone far when he had retraced his foot-steps and jumped down from the back of the roof and his Lordship was pleased to hold that in his judgement, he cannot be said to have entered into the building though he certainly was guilty of an attempt to commit a house breaking. This also, in my opinion, is not an authority which fully supports the view that going to the roof of a house would not be a house trespass. 10. The learned counsel appearing for the State has referred to the decision in the case of Ramjee Kahar V/s. State, reported in AIR 1961 Pat 409 , where it was held by a Hon ble judge of this Court that Gheran (open space) enclosed by walls and having exits leading to Zenant Kita was a part of building. This ruling is also not directly on the point whether the going on the roof of the house will be house trespass or not. I have referral to the wordings of S.442, Indian Penal Code, where the word used is building and naturally a very important question arises as to what a building is. The word building has not been defined in the Indian Penal Code. The word building as defined in the Chambers Dictionary means the art of erecting houses, that is, when it is used as a verb and means anything built, a house, when used as a noun. The question as to what is a building must always be a question of degree and circumstances and it is impossible to lay down any general definition of the same. The question as to what is a building must always be a question of degree and circumstances and it is impossible to lay down any general definition of the same. The learned counsel appearing for both the parties were not sole to find any ruling of our High Court on the point whether going on the roof of the house would be a house trespass or not. In my opinion, going on the roof of a house is not only a criminal trespass, but also a house trespass because the roof of a house is naturally a part of the building and the roof cannot be treated as something independent or separate from the building. In this case it appears that there was some portion of tiles also on the roof and if anybody goes on the roof of the house, then it means that he has entered into the building and the words "entered into" should not be taken too literally. I also think that it will be rather a dangerous proposition to lay down that going on the roof of the house will not tantamount to a house trespass because the roof of a house may also on some portion of it have a structure like a room and it will be stretching the words too much if it is held that even in that case going on the roof of the house will not be a house trespass. I therefore, with respect do not agree with the decisions of the Hon ble Single Judge of the Allahabad High Court on which reliance has been placed on behalf of the petitioner. To my mind, the roof is also a part of the building and if any one goes on the roof of the house that will be a house trespass, and not only criminal trespass. 11. The other important ingredient of the section is whether it was with the intention to commit an offence and it has been urged that there was nothing to prove that there was any intention to commit any offence particularly when no weapon was found with the petitioner. 11. The other important ingredient of the section is whether it was with the intention to commit an offence and it has been urged that there was nothing to prove that there was any intention to commit any offence particularly when no weapon was found with the petitioner. In my opinion, the fact that there was or not any intention to commit an offence is a matter on which usually it is impossible to adduce positive and tangible evidence and it is a matter which has to be judged in the light of the evidence and surrounding and antecedent circumstances. In this case, the petitioner, at about 10 p.m., was found on the roof of a house, his movement resulting in the breaking of the tiles necessitated the causing of the alarm and then his subsequent conduct in jumping from one roof to the other and then ultimately descending down in a Khand where he was caught are overt acts which clearly, in the circumstances, show that his presence was there with the intention of committing some offence, such as theft. I, therefore, hold that the learned Assistant Sessions Judge was quite right in convicting the appellant under S.451, Indian Penal Code. Therefore, this conviction is maintained and upheld. The sentence which has been passed also does not appear to be in any way severe and does not call for any interference. 12. The revision petition is therefore, dismissed.