JUDGMENT Sujit Narayan Prasad, J. - It has been informed to this Court that M/S Bhaiya Sumeet Sahay and Smita Gaurav are no more in practice before this Court and therefore this Court has requested Mr. Bibhas Sinha to assist the Court and accordingly he has been appointed as amicus curiae. The paper book has been furnished to him to go through it for proper assistance to the Court. Mr. Bibhas Sinha after going through the paper book has argued the matter on merits. 2. The instant appeal is against the judgment of conviction dated 30.04.2010 and order of sentence dated 05.05.2010 passed by the Additional Sessions Judge, FTC-VII, Giridih Gawan P.S. Case No.0001 of 2008 dated 05.01.2008, corresponding to Sessions Trial No.364 of 2008 (T.R. No.267 of 2008), registered for the offence under Sections 376(2)(G)/323/34 of Indian Penal Code, whereby and whereunder the sole appellant has been convicted for the offence under Sections 450, 323 and 376 (2)(g) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.3000/- for commission of offence under Section 450 of Indian Penal Code and simple imprisonment for six months for commission of offence under Section 323 of Indian Penal Code and rigorous imprisonment of ten years for the offence under Section 376(2)(g) of the Indian Penal Code, in default of payment of fine, is directed to undergo simple imprisonment for one year, all the sentences were ordered to run concurrently. 3. The prosecution story in brief as per the FIR registered on 05.01.2008 is that, in the night of 04.01.2008, Sunita Kumari-informant while sleeping 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 it, when the door was not opened, they have broken the door. At that time, there was light from lalten, 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 the mother and father of the informant and taken them out from their house and started assaulted them from fists. Thereafter, all the three persons have caught hold of the mother and father of the informant 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 has fled away but they have caught hold of the informant and taken her in the east side of the house and near 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, they have not let her and again both the persons have committed rape and also assaulted and threatened her that if she will make noise, she will be assaulted her with knife. All the three persons have closed her mouth with handkerchief and by her hand and started dropping in the well by saying that if she will make any noise she will be dropped in well and thereafter leaving near her house have fled away, then she has disclosed the occurrence to her mother and father, then it was reported to the Police. 4. The FIR has been instituted for the commission of offence under Section 376(2)(G)/323/34 of Indian Penal Code, accordingly, investigation has been started by the Police, charge-sheet was submitted for the offence under Sections 376(2)(G)/323/34 of Indian Penal Code. The Magisterial Court has taken cognizance and thereafter the case was committed to the Court of Sessions, wherein charges have been framed against the appellant for the offence under Sections 450/323/376(2)(G) of Indian Penal Code, the appellant having denied the guilt, has faced the trial. The trial Court after examining the witnesses and the materials produced before it, has convicted the appellant for the commission of offence under Sections 450/323/376(2)(G) of Indian Penal Code, and accordingly, sentenced to go rigorous imprisonment for seven years and a fine of Rs.3000/- for commission of offence under Section 450 of Indian Penal Code and simple imprisonment for six months for commission of offence under Section 323 of Indian Penal Code and rigorous imprisonment of ten years for the offence under Section 376(2)(g) of the Indian Penal Code, in default of payment of fine he is directed to undergo simple imprisonment for one year. The judgment of conviction and sentence is under challenge by way of the instant appeal. 5. The judgment of conviction and sentence is under challenge by way of the instant appeal. 5. Mr. The judgment of conviction and sentence is under challenge by way of the instant appeal. 5. Mr. Bibhas Sinha, learned counsel for the appellant while assailing the aforesaid order of conviction has taken the following grounds:- (i) The conviction order under Section 376(2)(g) is not proper for the reason that the victim girl has stated in the deposition that the appellant has not committed rape upon her and as such the conviction made under Section 376(2)(g) is not based upon evidence; (ii) There is no ingredients of Section 450 of Indian Penal Code, since there is no evidence having been brought on record with respect to the lurking house-trespass and thereafter the conviction for commission of offence under Section 450 is bad in law; (iii) He has tried to impress upon the Court by referring to the provision of Sections 441, 442, 443 and 445 and has submitted that there is no ingredients of commission of offence of lurking house-trespass, as per the ingredients contained under Section 450 of Indian Penal Code is because criminal trespass since has been defined under the provision of Section 441 of Indian Penal Code 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 or having 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; (iv) 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"; (v) According to him, nothing has been brought on record that the appellant has entered into the house by taking precaution to conceal and therefore, the foremost ingredients of lurking house 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 450 is said to be improper due to lack of its ingredients; (vi) He further submits that at best which can be said that there is ingredients of commission of offence under Section 448 of Indian Penal Code; (vii) The ground is that when the appellant has 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, he has been acquitted for commission of offence leading to imprisonment, the lurking house trespass cannot be said to be attracted. 6. While on the other hand, Mrs. Vandana Bharti, learned A.P.P. has fairly submitted that in the matter of identification by the prosecutrix, the conviction made under Section 376(2)(g) seems to be contrary to record and based upon no evidence but has vehemently opposed the ground of not attracting the ingredient of offence of tresspass by submitting that the criminal trace pass has been defined under the provision of Section 441 which contains the ingredients of intent to commit an offence or to intermediate, insult or annoy any person in possession of such property, as such, according to her the appellants have entered into the house with intent to commit an offence and therefore, there is ingriedients of criminal trespass as per the definition of criminal trespass as contained under Section 441. So far as the absence of ingredients of lurking house trespass as has been contended by the learned counsel for the appellant, she submits that house breaking has been defined under the provision of Section 445, wherein, house breaking can be said to be committed in the case of commission of house breaking in any ways as defined under Section 445 of Indian Penal Code and according to her the fifth way is attracting the ingredients and therefore, there is house breaking as per the material brought on record by testimony of the prosecution witnesses. She further submits that under Section 450 is not only for lurking house trespass rather it is also for house breaking in night in order to commit offence punishable with imprisonment and therefore since the ingredients of house breaking as per the fifth way as defined under the provision of Section 445 of Indian Penal Code is there, therefore, the house breaking in night cannot be defined on the basis of material available on record, hence the conviction ordered under the provision of Section 450 of Indian Penal Code cannot be said to be improper. She submits that even though the appellant has been acquitted for the commission of offence under Section 376(2)(G) but merely on the ground of acquittal, intent to commit an offence cannot be discarded as per the provision of Section 441 of criminal trespass. She submits that even though the appellant has been acquitted for the commission of offence under Section 376(2)(G) but merely on the ground of 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 committed 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 intention to commit any offence, since it has not been disputed by the prosecutrix or the other witnesses that the appellant has not entered into the house by breaking the door of the victim, and has been dragged out from the house that would go to show that there was an intention to commit an offence and therefore the ingredients of house breaking in night is there and accordingly, the trial Court while exercising the power conferred under Section 222 of Cr.P.C. has rightly convicted the appellant under Section 450 of Indian Penal Code, she therefore, submits that order of conviction under Section 450 as also under Section 323 of Indian Penal Code may not be inferred. She further submits that although the prosecutrix has not supported the occurrence but the other witnesses have supported it, and therefore, the conviction is said to be legal. 7. This Court in order to appreciate the finding given by the trial Court in the judgment impugned and in order to appreciate the documents advanced on behalf of the parties have been gone through the lower court record, prosecution witnesses and the other materials available thereto, this Court before appreciating the finding recorded in the impugned judgment and testimony of the prosecution witnesses, thinks it proper to deal with certain provisions pertaining to the "criminal trespass" as defined under Section 441 of Indian penal Code. Section 441 which suggests as follows:- "441. Section 441 which suggests as follows:- "441. Criminal trespass:-Whoever enters into or upon property in 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 suggests as hereunder:- 442. House-trespass:-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 "housetrespass". Section 443 which suggests as hereunder:- 443. Lurking house-trespass:-Whoever commits housetrespass 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 suggests as hereunder:- 444. Lurking house-trespass by night:-Whoever commits lurking house-trespass after sunset and before sunrise, is said to commit "lurking house-trespass by night". Section 445 which suggests as hereunder:- 445. House-breaking:-A person is said to commit "housebreaking" 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 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. 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 suggests as hereunder:- 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 suggests as hereunder:- 457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment:-Whoever commits lurking house-trespass 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 term which may extend to five 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 fourteen years. 8. It is evident after going through the provision of Section 441 which contains the provision of criminal trespass, the ingredients for attracting the said offence is an intention 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 nothing 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 for worship, or as a place for the custody of property, is said to commit "house-trespass", meaning thereby by 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 Sections 448 and 457 as because Section 448 speaks regarding punishment for house-trespass while Section 457 speaks regarding lurking house-trespass or house breaking by night in order to commit offence punishable with imprisonment so scope of Section 457 is larger to that of Section 448. 9. After dealing with the aforesaid provisions of law, now the deposition of the witnesses needs to be discussed in order to reach to the rightful conclusion regarding the legality and proprietary of the finding in the impugned judgment. 10. The prosecution has examined Arjun Thakur as P.W.-1 who happens to be the father of the victim girl, has said that some accused persons have entered into the house by breaking the door when it was not opened and thereafter started assaulting the family members. 10. The prosecution has examined Arjun Thakur as P.W.-1 who happens to be the father of the victim girl, has said that some accused persons have entered into the house by breaking the door when it was not opened and thereafter started assaulting the family members. His one daughter Domni Kumari 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 was left back at about 3:00 a.m. in the night and immediately after reaching to the house, she became unconscious, she has disclosed that they threatened her with knife in the night and swung her in the 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. 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 his submission which he has been given in examination-in-chief. 11. Domni Kumari has been examined as P.W.-2 who has stated that while sleeping in the house in the night along with her mother, father, brother and sister, some persons have given sound to open the door and when the door was not opened, they broked the door for entering into house and started assaulting all of them. His father became senseless and her brother has been thrown away and she along with her sister having kept hold by them, she somehow managed to flee away but her sister has been kept hold and when her sister has returned back in the morning she has stated nothing. She further stated that she has identified Gudu Yadav who is present in the Court. In the cross-examination, she has corroborated what has been stated by her in examination-in-chief. 12. Darsani Devi-P.W.-3, who is the mother of the informant and victim, has submitted occurrence. In the cross-examination, she has not retracted back from the statement what she has stated in the examination-in-chief. She has denied that only in order to take revenge, applicant has been falsely implicated. 13. Ram Chandra Mahto was examined as P.W.-4 who has been declared hostile. Darsani Devi-P.W.-3, who is the mother of the informant and victim, has submitted occurrence. In the cross-examination, she has not retracted back from the statement what she has stated in the examination-in-chief. She has denied that only in order to take revenge, applicant has been falsely implicated. 13. Ram Chandra Mahto was examined as P.W.-4 who has been declared hostile. Sunita Devi has been examined as P.W.-5 and he after hearing hulla from the house of Arjun Thakur-P.W.-1 came to know that his daughter has been taken away but subsequently his daughter has returned back. She heard from the father of the victim that Doman Sao, Dukhan Mushar and Gudu Yadav have taken away his daughter and committed rape upon her. She has not been cross-examined due to absence of the defence lawyer. 14. Radha Devi has been examined as P.W.-6, she became hostile. She, in her reinstatement has affirmed the statement given by her in the fardbeyan. She subsequently has been examined as Court witness by way of re-examination wherein she has proved fardbeyan as Exhibit-2. She stated that the incident took place two years ago. The incident has occurred at about 11.00 p.m. in the night while at that time, she was sleeping along with her mother, father, brother and sister, some persons have entered into the house and started assaulting the mother and father and she has been taken away from the house and committed rape upon her. She has stated that she has not recognized the accused person, accused Gudu Yadav-appellant is present in the Court, and she had not committed rape upon her. 15. Gulab Rabbani has been examined as P.W.-8 who was the investigating officer, taken charge of the investigation from the Chief Police Inspector Sri. Bishwanath Singh. She has exhibited the injury report of Sunita Devi which has been marked as Exhibit-3 as also the injury report of Arjun Yadav which has been marked as Exhibit-4. On the basis of these depositions, the judgment of conviction has been passed by the trial Court. Bishwanath Singh. She has exhibited the injury report of Sunita Devi which has been marked as Exhibit-3 as also the injury report of Arjun Yadav which has been marked as Exhibit-4. On the basis of these depositions, the judgment of conviction has been passed by the trial Court. This Court after appreciating the testimony of the witnesses more particularly, the deposition of P.W.-7 namely, Sunita Devi who has stated that although she has been subjected to rape but the appellant has not committed rape upon her, therefore, the victim has stated specifically that the rape was not committed upon her, although the same was recorded in paragraph 10 of the judgment, trial Court has convicted him for commission of offence under Section 376(2)(g). It is nowhere evident that on what basis the appellant has been convicted for the offence under Section 376(2)(g) when the P.W.-7 herself has stated in the Court that the appellant has not committed rape upon her, therefore, the order of conviction made under Section 376(2)(g) of the Indian Penal Code cannot be said to be made out against the appellant. This aspect of the matter ought to have been taken into consideration by the trial Court, but having not been taken into consideration and further no material has been brought on record with respect to the commission of offence under Section 376(2)(g) of the Indian Penal Code, therefore, the order of conviction made under Section 376(2)(g) of the Indian Penal Code is not found to be based upon any foundation, accordingly the same is quashed. In the result, the appellant is acquitted from the charge of Section 376(2)(g) of the Indian Penal Code. 16. So far as the offence under Section 450 and 323 are concerned, the Section 450 deals with punishment of house trespass in order to commit offence punishable with imprisonment for life. In the result, the appellant is acquitted from the charge of Section 376(2)(g) of the Indian Penal Code. 16. So far as the offence under Section 450 and 323 are concerned, the Section 450 deals with punishment of house trespass in order to commit offence punishable with imprisonment for life. Since the appellant has been convicted for the offence under Section 376(2)(g) of the Indian Penal Code which contains the quantum of punishment of having not less than 10 years but which may extend to imprisonment for life and therefore the appellant in the examination has been found to be guilty for the offence under Section 450 of Indian Penal Code for commission of offence of house trespass but when the charge of commission of offence under Section 376(2)(g) is found not made out by this Court, hence the consequence would be that no applicability of the offence committed by the appellant for the offence under Section 450 of the Indian Penal Code and therefore the conviction order under Section 450 of the Indian Penal Code is also quashed. But now, the question is, when there is house breaking and the material with respect to the house breaking is available on record, as would be evident from the deposition of the witnesses, who consistently have stated that the doors has been broken and the family members have been assaulted, the victim has been taken out from the house, meaning thereby, there is house trespass. Now the question is as to whether the said house trespass will be said to be with the intention of committing any crime to attract the ingredients of Section 441 of the Indian Penal Code which deals with the definition of criminal trespass as defined under Section 442 of house trespass or it is house breaking as per the definition stipulated in Section 445 of the Indian Penal Code. It is not in dispute that if any offence is committed and the material has come in course of testimony the Code of Criminal Procedure provide power under Section 222 which stipulates that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, thought he was not charged with it. 17. 17. This Court in exercise of aforesaid power is of the view that the same is to be applied herein because admittedly the appellant has been convicted for the graver offence but the material has come for convicting the appellant for commission of minor offence. At this juncture the provision of Section 441, 442 and 445 needs to be referred as quoted hereinabove. 18. So far as the contention of the learned APP is concerned that the witnesses have supported save and except the prosecutrix but the incident is that it is a case where the conviction is to be ordered on the basis of cogent proof that is, if the charge having been proved beyond all reasonable doubt and incase of any iyota of doubt, the benefit of doubt would be given to the accused. Here, in the instant case, although the other witnesses have supported the occurrence of commission of rape but the victim i.e. P.W.-7 has specifically stated in the Court that Gudu Yadav, "who is present in the Court", has not committed rape, therefore, two contradictory version come, and in view thereof, in case of doubt, the benefit is to be given to the accused and therefore, he will be entitled to be given the benefit of doubt so far as the commission of offence under Section 376(2)(g) is concerned. 19. The testimony of the witnesses suggests that the door was broken, the appellant have entered and he has been identified by the P.W.-1 namely, Arjun Thakur. However, P.W.-7 says that Gudu Yadav has not committed offence but she has confirmed the statement given by her father-P.W.-1 and therefore there is ingredients of house breaking. The house breaking was intended in order to commit offence punishable with imprisonment. The ingredients of criminal trespass as defined under Section 441 is also there that is intend to commit the offence, hence, the ingredients of Section 447 is well available against the appellant, therefore, the judgment of conviction is modified by directing for conviction of the appellant for the offence under Section 450 of the Indian Penal Code 20. The ingredients of criminal trespass as defined under Section 441 is also there that is intend to commit the offence, hence, the ingredients of Section 447 is well available against the appellant, therefore, the judgment of conviction is modified by directing for conviction of the appellant for the offence under Section 450 of the Indian Penal Code 20. So far as Section 323 is concerned as per the ingredient of Section 323, there is hurt as defined under the provision of Section 319 of the Indian Penal Code and the appellant caused hurt voluntarily, hence, the ingredient of Section 323 against the appellant is also available and therefore, he is liable to be convicted for the offence under Section 323 of Indian Penal Code, accordingly, the appellant is convicted for the commission of offence under Section 323 of the Indian Penal Code. 21. In view thereof, the judgment of conviction dated 30.04.2010 and order of sentence dated 05.05.2010 passed by the learned Additional Sessions Judge, Fast Track Court-VII, Giridih in Gawan P.S. Case No.0001 of 2008, corresponding to Sessions Trial No.364 of 2008 (T.R. No.267 of 2008) is modified by convicting the appellant for commission of offence under Section 450 and 323 of Indian Penal Code. So far as the quantum of sentence is concerned, the appellant is directed to undergo rigorous imprisonment for a period of 4 (four) years along with fine of Rs.10,000/-, in case of default in payment of fine, the appellant will have to further undergo simple imprisonment for a period of 6 (six) months, accordingly, the appeal is disposed of. 22. The appellant since is in bail, his bail bond is directed to be cancelled and to be taken into custody for completion of the remaining part of the sentence. 23. The Principal Secretary, Jharkhand Legal Service Authority is directed to reimburse the admissible fee to Mr. Bibhas Sinha who has assisted this Court having been appointed as amicus curiae as indicted above.