Judgment The revision petitioner has been convicted by the learned Judicial Second Class Magistrate of Kallakurichi of an offence punishable under section 456 of the Indian Penal Code, and sentenced to rigorous imprisonment for three months. The learned Chief Judicial Magistrate has confirmed the conviction and the sentence. The facts of case are very simple. At about mid-night on 5th February, 1978 when P.W. 1 and his wife were sleeping in their house, P.W. 1, on hearing some noise, woke up and lit the lamp and found the revision petitioner standing near his wife; where upon he caught hold of the revision petitioner and raised an alarm and the neighbour P.W. 2 turned up there and he went and fetched P. W. 3 and the revision petitioner begged for forgiveness. But P.W. 3 and P.W. 1 P.W. 1 him before the Village Munsif and P.W. 1 gave the report Exhibit P-1 and the revision petitioner was then produced at the police station. The revision petitioner, when examined by the trial Court, refuted all the circumstances appearing in the evidence against him. He did not adduce any evidence on his side. Both the Courts below have found that the necessary ingredients of section 456 of the Indian Penal Code, had been made out. It is now contended by Mr. Arunachalam, learned Counsel for the revision petitioner, that on the facts established, an offence under section 456 of the Indian Penal Code, has not been made out. Mr. Arunachalam has referred to the various ingredience necessary for constituting an offence under section 456 of the Indian Penal Code. It is argued that the tacts established do not establish those ingredients. 2. Section 456 of the Indian Penal Code, prescribes the punishment for committing lurking house-trespass by night, house-breaking by night. Lurking house-trespass by night has been defined in section 444 of the Indian Penal Code, as follows: “Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit lurking house-trespass by night”. Then again, lurking house-trespass has been defined in section 443 of the Indian Penal Code, as follows: “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, tent or vessel which is the subject of the trespass, is said to commit lurking house-trespass”. Then again, lurking house-trespass has been defined in section 443 of the Indian Penal Code, as follows: “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, tent or vessel which is the subject of the trespass, is said to commit lurking house-trespass”. Then again, section 442 of the Indian Penal Code defines what house-trespass is 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’”. Criminal trespass has been defined in section 441 of the Indian Penal Code as follows: “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’”. Consequently, the necessary ingredients for an offence under section 456 of the Indian Penal Code are (1) entry into any building, tent or vessel used as a human dwelling with any of the following intents: (a) to commit an offence; or (b) to intimidate, insult or annoy any person in possession of such property; after having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel, and such trespass was after sunset and before sunrise. Unless the entry into the house was with any of the intents specified in section 441 of the Indian Penal Code, there cannot be any offence under section 456 of the Indian Penal Code. The entry with any of the intents specified in section 441 of the Indian Penal Code, is the primary ingredient to constitute an offence under section 456 of the Indian Penal Code. Mr. The entry with any of the intents specified in section 441 of the Indian Penal Code, is the primary ingredient to constitute an offence under section 456 of the Indian Penal Code. Mr. Arunachalam has therefore argued that in this case all that the evidence has established is that at mid-night, the revision petitioner was found inside the house of the complainant to the police standing near the place where the complainant's wife was sleeping and that from that circumstance, it cannot be said that the revision petitioner had any of the intents specified in section 441 of the Indian Penal Code. In support of that contention, Mr. T.S. Arunachalam, has referred to a number of decisions. He has first of all referred to the decision in Sankarasan Boral v. The State where it was observed that ‘To sustain a charge under section 456, the Court must come to the definite inference as to what was the particular intention with which the entry was effected and if the intention was to annoy the inmates such a finding should be clearly mentioned in the judgment, and if, on the other hand, the intention was to commit some other offence such as adultery or unnatural offence with the inmates of the house, a finding to that effect must be recorded, based on evidence and a vague statement that the petitioner must have intended to annoy or insult the inmate would not suffice. There the proved facts were that the accused was found inside the dwelling house of the complainant at about 3 a.m. and when an alarm was raised, he tried to conceal himself in the kitchen but he was traced out and it was however held that on those proved facts those it was difficult to infer irresistably that the intention of the accused in entering the house was to commit some other offence or to annoy the inmates and there was no evidence on either side as to the main object with which the entry was effected and it was not safe in those circumstances to surmise that the accused must have entered the house with some other specific object in view. In The State v. Sydno Rodrigues and another one Rodrigues was prosecuted for an offence under section 456 of the Indian Penal Code, and the facts that were established in that case were that the feelings between the complainant to the police and the accused became strained when the accused developed friendship with the complainant's daughter and one night Rodrigues was seen inside the house and Rodrigues admitted that he had gone there in pursuance of a letter which the complainant's daughter had sent to him. It was found that all that the accused had done was to visit the complainant's house in response to an invitation from his daughter and in view of the relation which existed between the complainant and the accused, the letter had not the slightest intention of annoying the former and must have been keenly desirous of not having his visit discovered by him, and it was held that the charge under section 456 of the Indian Penal Code, was not substantiated. In Emperor v. Takbirullah it was held that where a man enters the house of another person with intent to commit cleandestine adultery with an unmarried woman by invitation and actually commits adultery, not only does he no intend to insult or annoy any other person in the house but he desires above all things their his presence should not be known to the other occupants, and consequently he cannot be held to be guilty under section 456 of the Indian Penal Code. But that is an extreme case and with great respect I am unable to agree with the broad proposition projected in that case. Committing adultery is undoubtedly an offence and if a person enters into the house of another for the purpose of committing adultery, one of the intents specified in section 441 of the Indian Penal Code, has been clearly made out. Nevertheless, that decision does make it clear that it is necessary for the Court to give a specific finding with regard to the intent with which the accused person entered into the building. Nevertheless, that decision does make it clear that it is necessary for the Court to give a specific finding with regard to the intent with which the accused person entered into the building. In Abdul Majid v. Emperor it was held where an accused enters at night the complainant's house with intent to have intercourse with the unmarried and sui juris daughter of the complainant by invitation, the accused cannot be said to have the primary or even the subsidiary or secondary intent to annoy the person in possession, from whom he had taken all possible precautions to keep his entry secret, and the mere fact that he knew, or ought to have known, that, if discovered, his presence in the house might cause annoyance to the owner or other immates of the house, is by itself not sufficient to bring his case within section 441. It was further observed in that decision that it must depend on the facts of each case, as to whether an intent to annoy the person in possession of the property entered upon can in the circumstances, be reasonably inferred. 3. In the case before me, there is a clue as to the background of the matter, for, in the First Information Report itself it has been stated that when the accused was brought before the Village Munsif at 1 a.m. in the night the complainant told him that on account of the previous illicit relationship between the accused and the complainant's wife the accused entered the house while she was sleeping. From these circumstances, it cannot be inferred with any amount of certainty that the accused had entered into the house with the intention of committing an offence. Undoubtedly, he would not have entered into the house with the intention of intimidating or annoying the complainant. It could however be argued that he had entered into the house with the intention of committing adultery with the complainant's wife and if that was the intention, undoubtedly, he would be guilty of an offence under section 456 of the Indian Penal Code. But that intention cannot be predicated in this case because it is hardly likely that the accused would have thought of having sexual intercourse with the complainant's wife when the complainant himself was sleeping near her. But that intention cannot be predicated in this case because it is hardly likely that the accused would have thought of having sexual intercourse with the complainant's wife when the complainant himself was sleeping near her. The possibility that the accused had entered into the house for the purpose of taking the complainant's wife out for such a purpose is also there. The net result is that it is very hard to give a definite finding as to what was the intent with which the entry into the house was made and without a finding on that point, the conviction under section 456 of the Indian Penal Code, cannot be sustained. 4. In the result, the criminal revision case is allowed and the conviction of the revision petitioner of an offence under section 456 of the Indian Penal Code and the sentence meted out to him are set aside and he is acquitted.