Judgment 1. There are two petitioners in this case. Both of them have been convicted under Sec.380 of the Indian Penal Code (hereinafter referred to as "the Code") and sentenced to undergo rigorous imprisonment for six months each. They have further been convicted under Sec. 457 of the Code, but no separate sentence has been awarded to them thereunder. A third accused, Etwari Tanti, had similarly been convicted, but his case has been dealt with under Sec. 4 of the Probation of Offenders Act. 2. The occurrence in question took place at about 1 a.m. in the night intervening between the 26th and the 27th December, 1966. The concurrent finding of the Courts below is that on the aforesaid night the petitioners had scaled upon the roof of the house of the informant Digambar Prasad (P.W. 8) and committed theft from there of chillies of the value of approximately Rs. 70/-. 3. The petitioners had taken the defence that they had been falsely implicated and that on the relevant night they had been attending a defence performance in the house of one Rameshwar Mochi (D.W. 1) so that they could not have taken part in the present occurrence. But, this defence has been rejected by the Courts below. 4. The main contention of learned Counsel appearing on behalf of the petitioners is that the roof of the informants house, upon which the petitioners scaled and from where they had carried away the chillies, as found by the Courts below, was not a part of the house which could be said to be inside the house. In other words, according to learned Counsel, the act of the petitioners did not amount to house-trespass, but, at best, to criminal trespass within the meaning of Sec. 441 of the Act. In support of this contention, learned Counsel has relied upon a decision of a learned Single Judge of the erstwhile Lahore High Court in Nanhun V/s. Emperor, AIR 1933 Lah 433 (1) : (34 Cri LJ 1181) as also upon a decision of a learned Single Judge of the Allahabad High Court in Hira Lal V/s. The State, 1951 All LJ 461. These decisions, no doubt, support the contention of the learned counsel that the going upon the roof of a building does not amount to house-trespass within the meaning of Sec. 442 of the Code, but only to criminal trespass within the meaning of Sec. 441, of the Code. As held by Kidwai, J. "The language of Sec. 442, I.P.C., is, however, clear and is to be distinguished from S. 441, I.P.C. In the latter Section it is not only entry into but upon property which amounts to trespass. In a case covered by Sec. 442, I.P.C., the entry must be into the building or remaining in the building. The person who is on the roof of a building cannot be said to be in the building on a literal interpretation of the language used." 5. This view, however, has not found favour in this Court where Wasiuddin, J., sitting singly, in Dinesh Thakur V/s. State of Bihar, 1970 Cri LJ 1199 (Pat) has dissented from the view taken by the Allahabad High Court, and has held that going upon the roof of a house would not only amount to criminal trespass but also to house-trespass, because the roof of a house is a part of the building and it cannot be treated as something independent of, or separate from, the building so that going upon the roof of a house would amount to house-trespass and that the words entering into used in Sec. 442 of the Code should not be construed too literally. His Lordship has further observed that it would be dangerous to lay down a general proposition that going upon the roof of a house will not amount to a house-trespass, because there may be a house on a portion of the roof of which there might exist one room and it would be stretching the words too much if it is held that even in such a case the act of going upon the roof of the house would not amount to house-trespass. With respect, I am in agreement with the view expressed by Wasiuddin, J. in the Patna decision referred to above. The decision of his Lordship is consistent with the normal use which persons in this country, particularly the village folk, put to the roofs of their houses. With respect, I am in agreement with the view expressed by Wasiuddin, J. in the Patna decision referred to above. The decision of his Lordship is consistent with the normal use which persons in this country, particularly the village folk, put to the roofs of their houses. More often than not, the roof tops are used for storing grains or crops as also for drying them with an idea of their safety, otherwise such drying as well have been done in the courtyard or the compound which would not fall within the ambit, of a house or a building. In this case particularly, the roof had been used by the informant (P.W. 8) for the purpose of storage of a stock of chillies and, therefore, I am of the opinion that the theft of a portion of the chillies from the roof of the house was a theft in a dwelling house so as to attract the operation of Sec.380 of the Code. 6. The second contention of learned Counsel is that the case was really triable by a Gram Cutcherry having regard to the value of the chillies found to have been stolen away by the petitioners. This contention would have prevailed if it is held that there was no house-trespass or theft from a building in the circumstances of the present case. But, since I have held that it was a case of theft from a building and house-trespass for the purpose of committing the theft, this question cannot be of any avail to the petitioners. 7. Lastly, learned Counsel contended that, upon the evidence of the defence witnesses, it should have been held that the petitioners could not have taken part in the present occurrence, because even the chaukidar (P.W. 1) admitted in course of his cross-examination that he had seen both the petitioners in the defence performance which was going on in! the house of Rameshwar Mochi (D.W. 1). This aspect of the matter has been considered by the Courts of fact and, sitting in revision, I do not find myself justified in entering into such a question of fact. 8. In the result, the convictions recorded against the petitioners are upheld. I would, however, reduce the sentence that has been awarded to the petitioners under Sec.380 of the Code to one of rigorous imprisonment for four months each. 8. In the result, the convictions recorded against the petitioners are upheld. I would, however, reduce the sentence that has been awarded to the petitioners under Sec.380 of the Code to one of rigorous imprisonment for four months each. With this modification in the sentence, the application is dismissed.