JUDGMENT This revision takes exception to the judgment passed by the learned Additional Sessions Judge-2, Achalpur in Criminal Appeal No.5 of 2003 dated 27.9.2011, dismissing the same and thereby maintaining the judgment and order of conviction passed by the learned 3rd Adhoc Sessions Judge, Achalpur in Sessions Case No.7 of 2003 vide which applicant is convicted for the offence punishable under Sections 458, 459 of the Indian Penal Code and is sentenced to suffer R.I. for 5 years on each count, and is to pay a fine of Rs.500/- on each count, in default to suffer further R.I. for one month on each count. 2. It is the case of the prosecution that the complainant Mohan Mohod was working in Police Department at Amravati and was residing in Sai Nagar, Kandali, Tq. Achalpur, Distt. Amravati. On 19.12.2002, when complainant came to his house at about 22.30 hours along with Vijay Mandale and Ashish Bhande, they all noticed that in the house of complainant lights were on and the doors were closed from inside. Complainant thus, along with his companion pushed opened the door and noted that household articles from the almirah were scattered around it and applicant was found present having armed with iron rod. At the same time complainant caught hold the applicant and snatched the iron rod. It is the case of the prosecution that in the course of said transaction applicant-accused attempted to assault the complainant and bit little finger of the complainant. According to the case of the prosecution, accused was found on the spot and was accordingly handed over to the Police by the complainant. 3. On the basis of report lodged by Mohan Mohod offence came to be registered by Paratwada Police Station vide Crime No.213 of 2002 and on completion of investigation charge sheet came to be filed. Charge is framed against the accused to which he pleaded not guilty and claimed to be tried. The plea of the accused is of total denial and on false implication. It is the case of the accused that some other person entered the house of the complainant and scuffled with him during the course of which complainant sustained injuries. 4. That the learned trial Court as well as the appellate Court considering the evidence on record convicted the accused as aforestated, hence this revision. 5. It is the case of the accused that some other person entered the house of the complainant and scuffled with him during the course of which complainant sustained injuries. 4. That the learned trial Court as well as the appellate Court considering the evidence on record convicted the accused as aforestated, hence this revision. 5. I have heard Mr.N.B. Jawade, learned counsel appointed for the accused and Mr.S.B.Ahirkar, learned A.P.P. for the State. 6. To effectively evaluate the submission advanced by the learned counsel for both sides, I have gone through the evidence on record, with their assistance. The complainant has stated that on the day of incident he visited his house along with PW 2 Vijay Mandale and PW 5 Ashish Bhande. While they were in the house of complainant, Mohan heard some noise of cupboard and therefore went in the bed room and saw the accused present in the bed room, to whom the complainant was in fact knowing and asked as to why he was present in his bed room. Upon which accused stated that he was not aware that it was the house of the complainant. Mohan further stated that he noted that the accused had collected gold and silver ornaments and cash of Rs.2,700/- and thus he shouted due to which Vijay and Ashish came in the bed room and with their assistance caught hold the accused and brought him in the hall. 7. The complainant further stated that the accused attempted to run out of the house and tried to commit assault by iron rod in his possession which complainant snatched from his possession and at that time accused bit to his index finger. The complainant has proved his report Exhibit-9 on record. 8. Evidence of PW 2 Vijay Mandale and PW 5 Ashish Bhande corroborate the version of complainant on all the material aspects thereby prosecution is found to have well established the fact of accused entering into the house of complainant in the night hours. Evidence of complainant further finds corroboration from the evidence of PW 3 Dr. Anand Zade. PW 3 Anand, on 19.12.2002 examined complainant and found amputation of tip of right hand index finger from the base of nail. The injury is certified to have been possible by human bite. PW 3 Anand Zade, issued injury certificate Exhibit-15. According to the evidence of Dr. Anand Zade. PW 3 Anand, on 19.12.2002 examined complainant and found amputation of tip of right hand index finger from the base of nail. The injury is certified to have been possible by human bite. PW 3 Anand Zade, issued injury certificate Exhibit-15. According to the evidence of Dr. Anand, the injury sustained by complainant is simple in nature. 9. Considering the evidence of complainant together with evidence of PW 2 Vijay, PW 5 Ashish and PW 3 Dr. Anand learned counsel for the applicant/accused has specifically submitted that there is no evidence to establish ingredients in Section 458 and 459 of the Indian Penal Code, as according to the evidence on record, there is nothing to establish that at the time of incident accused committed lurking house trespass or house breaking by night after making preparation to cause hurt, assault, or wrongful restraint. Learned counsel further contended that even there is no evidence to establish the ingredients of Section 459 of the Indian Penal Code. According to him, grievous hurt is necessary to be caused whilst committing lurking house trespass or housebreaking. 10. On perusal of evidence as discussed above, I find much substance in the submission as from the evidence of complainant as well as PW 2 Vijay, PW 5 Ashish it cannot be said that the prosecution has established beyond reasonable doubt that the accused having made preparation committed lurking house of trespass or house braking or had assaulted the complainant. Similarly, from the evidence of PW 3 Dr. Anand it cannot be said that the accused in the course of said transaction had caused grievous hurt as evidence of PW 3 Dr. Anand is to the effect that injury sustained by the complainant is simple in nature and has accordingly issued Exhibit-15. 11. Moreover, PW 1 Mohan complainant has admitted that he has not stated in his report Exhibit-9 that accused bit his finger by his teeth. In view of above omission on record, it even otherwise appears that the complainant has improved his version so as to suit the case of prosecution. 12. 11. Moreover, PW 1 Mohan complainant has admitted that he has not stated in his report Exhibit-9 that accused bit his finger by his teeth. In view of above omission on record, it even otherwise appears that the complainant has improved his version so as to suit the case of prosecution. 12. Having regard to the evidence on record as well as the submission advanced on behalf of accused/applicant, I am of the opinion that the offence committed by the accused at the most would fall within the ambit of Section 456 of the Indian Penal Code which contemplate punishment for lurking house trespass or house breaking by night. 13. In view of above, following order is passed: Appeal is partly allowed. Conviction imposed upon the applicant for the offence punishable under sections 458 and 459 of the Indian Penal Code is altered and the applicant is convicted for the offence punishable under Section 456 of the Indian Penal Code and is directed to undergo R.I. for 3 years and to pay fine of Rs. 500/-, in default of fine to suffer R.I. for 15 days. Copy of judgment be forwarded to the applicant through Superintendent of concerned Jail. At this stage, I must record my appreciation for Advocate Mr.N.B. Jawade, appointed from High Court Legal Services Sub Committee, Nagpur to represent the accused. It is noted that learned Advocate has meticulously prepared the matter and he has very ably argued the same. Legal fees to be paid by the High Court Legal Services Sub Committee, Nagpur is quantified to Rs.3,000/-. Appeal partly allowed.