JUDGMENT Sujit Narayan Prasad, J. - The instant appeal is against the judgment and order dated 01.12.2008 and 05.12.2008 passed by the Additional Sessions Judge, FTC-VII, Giridih in Sessions Trial No.152/2008 (T.R.No.49/2008), corresponding to Gawan P.S. Case No.1/2008 registered for the offence under Sections 376(2)(g)/323/34 of Indian Penal Code, whereby and whereunder, the appellants have been convicted for the offence under Sections 457 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years for commission of offence under Section 457 of Indian Penal Code and one year for commission of offence under Section 323 of Indian Penal Code which shall run concurrently. 2. The prosecution story in brief as per the FIR registered on 05.01.2008 is that in the night on 04.01.2008, Sunita Kumari informant, while sitting in her house along with her mother, father, sister and brother at about 11:30 p.m., some sound has been given by a man for opening the door and started beating the door for opening, when the door was not opened, they have broken the door. At that time, there was light from lantern, on this light, three persons have been seen, upon which, face of one person was seen whose name was Doman Sao, who has been identified and face of two persons was covered and as such, they could not have been recognized. Thereafter, all the three persons have caught hold of her mother and father and taken them out from their house and started assaulted them from fists. Thereafter, the informant and her sister have been taken out from the house but somehow her sister had fled away but they have caught hold of the informant and taken her in the east side of the house and near a well. They have fallen her down and then Doman Sao has committed rape. At that time, two persons have caught hold of her face and when she has tried to flee away but they have not let her to go and again both the persons have committed rape and also assaulted, thereafter threatened her that if she will make noise, she will be assaulted with knife. At that time, two persons have caught hold of her face and when she has tried to flee away but they have not let her to go and again both the persons have committed rape and also assaulted, thereafter threatened her that if she will make noise, she will be assaulted with knife. All the three persons have closed her mouth with handkerchief and started dropping in the well by saying her that if she will make any noise she will be dropped in the well and thereafter they after leaving near her house had fled away, then she has disclosed the occurrence to her mother and father, then it was reported to the Police. 3. The FIR has been instituted for the commission of offence under Sections 376(2)(g)/323/34 of Indian Penal Code, accordingly, investigation has been started by the Police, charge-sheet has been submitted for the offence under Sections 376(2)(g)/323/34 of Indian Penal Code. The Magestrial Court has taken cognizance has committed the case before the Court of Sessions, wherein, charges have been framed against the appellants for the offence under Sections 450/323/376(2)(g) of Indian Penal Code, appellants after defending the guilt was subjected to trial. The prosecution has examined the witnesses and also exhibited the documents, thereafter has acquitted the appellants for offence under Sections 376(2)(g) and 450 of Indian Penal Code held them guilty for the offence under Sections 457/323 of Indian Penal Code and accordingly inflicted sentence upon them. The aforesaid judgment is under appeal. 4. Mr. The prosecution has examined the witnesses and also exhibited the documents, thereafter has acquitted the appellants for offence under Sections 376(2)(g) and 450 of Indian Penal Code held them guilty for the offence under Sections 457/323 of Indian Penal Code and accordingly inflicted sentence upon them. The aforesaid judgment is under appeal. 4. Mr. Anil Kumar Sinha, learned counsel for the appellants while assailing the aforesaid judgment has taken the following grounds:- (i) There is no ingredient of Section 457 of Indian Penal Code, since there is no evidence having been brought on record with respect to the lurking house-trespass and therefore the conviction for commission for the offence under Section 457 is bad in law; (ii) He has tried to impress upon this Court by referring to the provision of Sections 441, 442, 443 and 445 and has submitted that there is no ingredient of commission of offence of lurking house-trespass, as per the ingredients contained under Section 457 of Indian Penal Code as because the criminal trespass since has been defined under the provision of Section 441 of Indian Penal Code stipulates that whoever enters into 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 unlawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy to any such person or with intent to commit an offence is said to commit criminal trespass. (iii) He further submits that the house trespass has been defined under the provision of Section 442 which stipulates that the criminal trespass is said to be committed by entering into or remaining in any building, tent or vessel, while Section 443 defines lurking house-trespass, as per which, the commission is said to be committed by 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". (iv) According to him, nothing has been brought on record that any of the appellants have entered into the house by taking precaution to conceal and therefore, the foremost ingredient of lurking trespass as per the definition contained under the provision of Section 443 is lacking after bare perusal of the material available on record and as such the conviction made by the trial Court for commission of offence under Section 457 is said to be improper due to lack of its ingredient. (v) He further submits that at best which can be said that there is ingredient of commission of offence under Section 448 of Indian Penal Code; (vi) The ground is that when the appellants have been acquitted for commission of offence under Section 376(2)(g) then there cannot be lurking house-trespass for commission of offence, at that moment, they have been acquitted for commission of offence leading to imprisonment, the lurking house trespass cannot be said to be attracted. 5. While on the other hand, learned A.P.P. has vehemently opposed the ground by submitting that the criminal trespass has been defined under the provision of Section 441 which contains the ingredient of intent to commit an offence or to intermediate, insult or annoy any person in possession of such property and as such according to her, the appellants have entered into the house with intent to commit an offence and therefore, there is ingredient of criminal trespass as per the definition of criminal trespass as contained under Section 441 of Indian Penal Code. 6. So far as the absence of ingredient of lurking house trespass as has been contended by the learned counsel for the appellants, she submits that house breaking has been defined under the provision of Section 445, wherein, a house breaking can be said to be committed in case of commission of house breaking in any ways as defined under Section 445 of Indian Penal Code and according to her, the fifth ways is attracting the ingredient and therefore, there is house breaking, as per the material brought on record by the testimony of the prosecution witnesses. She further submits that Section 457 is not only for lurking house trespass rather it is also for house breaking by night in order to commit offence punishable with imprisonment and therefore since the ingredient of house breaking as per the fifth ways as defined under the provision of Section 445 of Indian Penal Code is there, therefore, the house breaking by night cannot be defined on the basis of material available on record, hence the conviction ordered under the provision of Section 457 of Indian Penal Code cannot be said to be improper. She further submits that even though, the appellants have been acquitted for commission of offence under Section 376(2)(g) but merely on the ground acquittal, intent to commit an offence cannot be discarded as per the provision of Section 441 of criminal trespass. She further submits that the witnesses have consistently said that there is breaking of house for commission of offence for life imprisonment and merely on the aforesaid fact that the offence of rape has not found to be proved i.e. on the basis of the evidence of the prosecutrix who in course of the trial has turned hostile that does not mean that there was no intent to commit any offence, since it has not been disputed by the prosecutrix or the other witnesses that the appellants have not entered into the house by breaking the door and the victims have been dragged out from the house that would go to show that there was an intent to commit an offence and therefore the ingredient of house breaking in night is there and accordingly, the trial Court in exercise of power conferred under Section 222 of Cr.P.C. has rightly convicted the appellants for the commission of offence under Section 457 of Indian Penal Code, she therefore, submits that order of conviction under Section 457 as also under Section 323 of Indian Penal Code may not be inferred with. 7. Heard learned counsel for the parties and gone through the lower Court record which contains the witnesses of the prosecution and the other exhibits. 8. This Court before appreciating the testimony of the prosecution witnesses thinks it proper to deal with certain provisions pertaining to the "trespass" as defined under Section 441 of Indian penal Code. Section 441 which contains the provision of criminal trespass as follows:- "441. 8. This Court before appreciating the testimony of the prosecution witnesses thinks it proper to deal with certain provisions pertaining to the "trespass" as defined under Section 441 of Indian penal Code. Section 441 which contains the provision of criminal trespass as follows:- "441. Criminal trespass:-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". Section 442 which contains the provision of house-trespass as follows:- 442. House-trespass:-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or nay building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass". Section 443 which contains the provision of lurking house-trespass as follows:- 443. Lurking house-trespass:-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". Section 444 which contains the provision of lurking house-trespass by night as follows:- 444. Lurking house-trespass by night:-Whoever commits lurking housetrespass after sunset and before sunrise is said to commit "lurking house-trespass by night". Section 445 which contains the provision of house breaking as follows:- 445. House-breaking:-A person is said to commit "house-breaking" who commits house-trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say First. If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. Secondly. If he enters or quits through a passage made by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. Secondly. If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building. Thirdly. If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house-trespass by any means by which that passage was not intended by the occupier of the house to be opened. Fourthly. If he enters or quits by opening any lock in order to the committing of the house-trespass, or in order to the quitting of the house after a house-trespass. Fifthly. If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. Sixthly. If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Section 448 which contains the provision of punishment for house-trespass as follows:- 448. Punishment for house-trespass:-Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 457 which contains the provision of lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment as follows:- 457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment:-Whoever commits lurking housetrespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a terms which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the terms of the imprisonment may be extended to fourteen years." 9. It is evident after going through the provision of Section 441 which contains the provision of criminal trespass, the ingredient for attracting the said offence is an intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, meaning thereby, the result of the offence has not been said to be an ingredient rather the intent is to be seen for attracting the offence for criminal trespass. Section 442 defines house-trespass, as per which, it will be said to be committed by entering into or remaining in any building, tent or vessel use as a human dwelling or any building used as a place of worship, or as a place for the custody of property, is said to commit "house-trespass", meaning thereby entering into or remaining in any building but without an intent to commit an offence. Section 443 defines lurking house-trespass, as per which, it will be said to be committed 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, meaning thereby, the offender if entering into the house to commit an offence so that nobody can recognize and come in the way of commission of the trespass, it will be said to be lurking house trespass. Section 445 speaks regarding house breaking, as per which, it will be said to be committed in case of any act on such way as has been reflected herein. Section 448 speaks regarding punishment for house-trespass and the same can be attracted if the offence of house trespass will be committed for a term which may extend to one year, or with fine, while Section 447 speaks regarding lurking house trespass or house breaking by night, so there is difference in between Sections 448 and 457 as because Section 448 speaks regarding punishment for house-trespass while Section 457 speaks regarding lurking housetrespass or house breaking by night in order to commit offence punishable with imprisonment, so the scope of Section 457 is larger to that of Section 448. 10. In the background of this panel provisions defined, now the testimony which has been brought on record needs to be appreciated by this Court in order to assess the finding of trial Court. 11. 10. In the background of this panel provisions defined, now the testimony which has been brought on record needs to be appreciated by this Court in order to assess the finding of trial Court. 11. The prosecution has examined Arjun Thakur as P.W.-2 who happens to be the father of the victim girl, has said that 4-5 persons have entered into the house by breaking the door, when it was not opened and thereafter started assaulting the family members, amongst whom Doman Sao, Dukhan Mushar and Guddu Yadav have been recognized by him. His younger daughter Domni has somehow managed to flee away from the clutches of the accused persons but his another daughter Sunita has been taken away by them and they had left her at about 3:00 a.m. in the night and immediately after reaching to the house, she became senseless, after coming, she has disclosed that they threatened her with knife in the night and swung her in well as also she was beaten. All the three accused persons have committed rape upon her and thereafter in the morning, the father has lodged an FIR. He has recognized Doman Sao and Dukhan Mushar in the Court. In the cross-examination it has been said by him that he has corroborated what he has said in chief and no contradiction has been found by this Court regarding their submission which he has been given in examination-in-chief. 12. Bishwanath Singh has been examined as P.W.-3 who during the relevant time, was posted as Sub-Inspector in Gawan police station recorded the fardbeyan of Sunita Kumari (Victim), on her verbal statement, in his pen and signature, the same has reflected from exhibit-2. He has said that he has conducted the investigation, recorded the re-statement of the informant, inspected the place of occurrence and has found that door of her house was broken, entire thing has been narrated in the case diary. He has further stated that all the witnesses have supported the occurrence and then the accused persons have been arrested, wherein, they have confessed the guilt which has been marked as exhibit-4. He has said that she is recognizing one Santosh Kumar Sinha who has present in the Court and other accused persons have not been recognized by him. In the crossexamination, he has corroborated the statement which he has made in the examination-in-chief. He has said that she is recognizing one Santosh Kumar Sinha who has present in the Court and other accused persons have not been recognized by him. In the crossexamination, he has corroborated the statement which he has made in the examination-in-chief. He has stated that he has not seized the broken door as also not seen anything at the place of occurrence. 13. Darshani Devi has been examined as P.W.-4 who is the mother of the victim girl and has accepted the occurrence but she has turned hostile. 14. Domni Kumari has been examined as P.W.-5, although in the examinationin-chief, she has said that the accused persons have entered into the house by breaking the door, thereafter, she is not in a position to say anything and she has also became hostile. 15. Sunita Kumari has been examined as P.W.-6, she has also corroborated about breaking of the door and the incident of assault upon their family members and thereafter what has happened, she was not in a position to say anything and become senseless, thereafter she has turned hostile. 16. Shanti Devi has been examined as P.W.-7, she has said the same thing and has been declared to be hostile. 17. Radha Devi and Ramchandra Mahto have been examined as P.W.-8 and P.W.-9 respectively, although all of them have became hostile. 18. Dr. Bishwanath Das has been examined as P.W.-10 who has medically examined the victim and found the following injuries:- i.) Abrasion at the left side of face, ii.) Tenderness all over body. He has opined that the nature of injuries were simple and were caused by hard and blunt substance and were of within 24 hours. 19. Dr. Kamla Sinha has been examined as P.W.-1 who has examined the victim girl and has given the following opinions:- i.) No injury on body and private part, ii.) No semen stain has been found on her body, iii.) No foreign hair found, iv.) Posterior tour chit-red v.) Hymen turned admits two fingers easily. She has opined that it is difficult to say as to whether the rape was committed or not. She has opined that it is difficult to say as to whether the rape was committed or not. It is on the basis of the aforesaid testimony of the prosecution witnesses, the trial Court after taking into consideration the opinion of the doctor and the P.W.-6 namely Sunita Kumari, who in course of the trial has turned hostile, therefore, acquitted the accused persons from commission of offence under Sections 376(2)(g)/457 of Indian Penal Code but however in exercising the power conferred under Section 222 of Cr.P.C. has convicted the appellants for commission of offence under Sections 457 and 323 of the Indian Penal Code. 20. This Court after appreciating the ground agitated by the learned counsel for the appellants that when the appellants have been acquitted from commission of offence under Sections 376(2)(g)/450, there may not be any conviction for commission of offence under Section 457 of Indian Penal Code as also under Section 323 of Indian Penal Code. 21. 20. This Court after appreciating the ground agitated by the learned counsel for the appellants that when the appellants have been acquitted from commission of offence under Sections 376(2)(g)/450, there may not be any conviction for commission of offence under Section 457 of Indian Penal Code as also under Section 323 of Indian Penal Code. 21. This Court is in agreement with the aforesaid ground which is for the following reason:- i.) It is the admitted fact that the commission of offence has been found to be disputed by the trial Court on the basis of the testimony of the doctor and the prosecutrix has become hostile, although, she has corroborated the incident in her statement given before the police under Section 161 of Cr.P.C. as also Section 164 of Cr.P.C. but the statement recorded under Section 164 of Cr.P.C. has been proved before the trial Court and therefore, the appellants have been acquitted from the offence under Sections 376(2)(g)/450 but P.W.-4 and P.W.-5 who are mother and younger sister of the victim girl, although have failed to disclose nothing regarding commission of offence but they had consistently said regarding breaking of the door in examination-in-chief, however, by saying that the appellants have entered into the house by breaking the door in the night but what was happened, they are not in a position to say anything, meaning thereby, the incident of breaking the door has not been retracted back by them and therefore, it cannot be said that since the commission of offence under Section 376(2)(g) has found to be not made out on the basis of the deposition of the P.W.- 6 but the P.W.-6 has specifically said that after breaking of the door, she become senseless and therefore, the testimony given by her regarding breaking of the door, cannot be discarded. 22. It is in the circumstances now it is to be seen in order to appreciate the argument advanced by the learned counsel for the appellants that there is house trespass as per the definition contained in Section 442 or there is house breaking as per the definition stipulated under Section 445 of Indian Penal Code. 23. 22. It is in the circumstances now it is to be seen in order to appreciate the argument advanced by the learned counsel for the appellants that there is house trespass as per the definition contained in Section 442 or there is house breaking as per the definition stipulated under Section 445 of Indian Penal Code. 23. This Court after going across the material available on record and the definition of house trespass as defined under Section 442 of Indian Penal Code is of the view that it is not the simple trespass which can be brought under the provision of Section 442 of Indian Penal Code rather it is a house breaking for commission of an offence which effects the ingredients or departure by using criminal force or committing an assault or threatening any person with assault, "fifth ways" as stipulated under Section 445 of Indian Penal Code as discussed from the testimony of the witnesses, the appellants have entered into the house by breaking of the door which itself suggests that there was breaking the door and thereafter the members of the family have been assaulted, two of the daughters of the P.W.-2 have been caught hold but one in somewhere or the other managed to flee away but the other namely Sunita Kumari P.W.-6 has been taken out from her house for commission of offence like that of rape, however, the rape have not been proved but it cannot be denied that the entering into the house by breaking the door by using criminal force or committing an assault. Further as per the testimony, P.W.-10 who has treated the P.W.-2, the injury has been found and hence, it cannot be said that there is lack of ingredient like that of assault as defined under "fifth ways" under Section 445 of Indian Penal Code and therefore, the according to the considered view of this Court, the house trespass as defined under Section 442 would not be said to be attracted rather the house breaking under Section 445 of Indian Penal Code would be said to be attracted. 24. 24. So far as the contention that punishment of house trespass as per the provision of Section 448 of Indian Penal Code ought to have been inflicted upon the appellants in case of convicting accused persons under Section 457 of Indian Penal code but I am not agreeing with the such submission for the reasons that the punishment to be inflicted under the provision of Section 448 of Indian Penal code is for commission of house trespass as per the definition of house trespass under Section 442 of Indian Penal Code, since this Court has already came to the conclusion that the nature of trespass is of house breaking as per the definition given under Section 445 of Indian Penal Code, therefore, the ingredient of Section 457 of Indian Penal Code would be said to be attracted. 25. It is also for the reason that the house breaking was in the night and in order to commit offence punishable with imprisonment, here in the instant case even accepting that the appellants have been acquitted under the provision of Section 376(2)(g) of Indian Penal Code or Section 457 of Indian Penal Code but the fact remains that they have entered into the house by breaking the door in the night, assaulted them, taken out the P.W.-6 from the house, however, she said that what has happened after breaking of the door she is not in a position to say anything since she has become senseless, therefore assault is admitted and the same is punishable with imprisonment. Further after going through the provision of Section 441, criminal trespass itself which stipulates 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, this provision goes to suggest that intent to commit an offence is a paramount consideration and not the result and therefore, the ingredients of criminal trespass is well available there. The trial Court, however, has not found ingredient available under Section 450 of Indian Penal Code, for the reasons that the same is applicable for the offence where the punishment for a term not exceeded 10 years, as such, in exercise of power conferred under Section 222 of Cr.P.C., the trial Court after taking into consideration, the availability of the material, has altered the charge and convicted the appellants for the offence under Section 457 of Indian Penal Code. 26. Therefore, this Court has also considered the question of providing an opportunity to the appellants before altering the charge for the offence under Sections 450 to 457 of Indian Penal Code but has found that the Court has put a specific question under Section 313 of Cr.P.C. that in order to commit offence of rape, the appellants have entered into the house, unauthorizedly at night however the same has been denied by the accused persons and therefore the question put by the trial Court that under Section 313 of Cr.P.C. pertains to entering into the house in the night for the commission of offence and hence, it cannot be said that the particular question related to entering into the house for commission of offence has not been asked in order to provide an opportunity to the appellants. 27. In view thereof and on the basis of the discussion made hereinabove, according to the considered view of this Court, the conviction ordered by the trial Court for the offence under Section 457 of Indian Penal Code So far as the Section 323 is concerned, the ingredient of Section 323 is provided punishment for voluntarily causing hurt as also Section 323 of Indian Penal Code cannot be said to be unfounded and here in the instant case it is evident from the testimony of the prosecution witnesses that the appellants have caused hurt as per the definition of ''hurt'' under the provision of Section 319 of I.P.C. which defines that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt, here in the instant case, the doctor while treating P.W.-2 has found injury caused on body and therefore, there is ingredient of Section 323 of Indian Penal Code. 28. In view thereof, the judgment of conviction and order of sentence dated 01.12.2008 and 05.12.2008 is hereby affirmed. 29. 28. In view thereof, the judgment of conviction and order of sentence dated 01.12.2008 and 05.12.2008 is hereby affirmed. 29. The appellants are in bail and therefore, their bail bonds are cancelled, in the result they are directed to be taken into custody for completion of remaining part of their sentences. 30. The appeal is accordingly, dismissed.