JUDGMENT : ARUN KUMAR RAI, J. 1. Heard Mr. Pankaj Verma, learned counsel appearing on behalf of the appellant and Mr. Fahad Allam, learned A.P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 09.12.2003 and order of sentence dated 11.12.2003 passed by learned Additional Sessions Judge, Fast Track Court No. VI, Hazaribagh in Sessions Trial No. 210 of 2003 whereby and whereunder, the appellant has been convicted under Section 457 of the Indian Penal Code and has been sentenced to undergo R.I.for four years. 3. The case of prosecution is based upon the fardbeyan of father of the victim who has stated therein that in the intervening night of 02-03.03.2003, victim 12 years of age and her grand-mother were sleeping in a room and at about 01:30 A.M. in the night the victim and mother of the informant (grand-mother of the victim) raised alarm that somebody entered into room for the purpose of commission of rape. On such alarm, number of people of nearby assembled and mother of the informant and victim came in courtyard locking the door by putting chain from outside of door. It is also alleged that daughter of informant i.e. victim told that in the night they did not lock the door of the room and victim along with her grand-mother sleeping on a cot, in the meantime she woke up, as someone put pressure on her breast and she also found that her underpant was also opened and said person was rubbing her private part. It is further alleged that after making arrangement of light, door was opened and it was found that Md. Ayub Ansari (appellant herein) was inside the room and he trespassed the room for the purpose of commission of rape on the person of daughter of the informant and is still in the room and several nearby persons were present there. 4. On the basis of aforesaid Fardbeyan Mandu Charhi P. S. Case No. 69 of 2003 dated 03.03.2003 for the offence punishable under Section 376/511 IPC got registered and after due investigation, charge-sheet was submitted and cognizance was taken for the offence punishable under Sections 376/511 IPC. 5. 4. On the basis of aforesaid Fardbeyan Mandu Charhi P. S. Case No. 69 of 2003 dated 03.03.2003 for the offence punishable under Section 376/511 IPC got registered and after due investigation, charge-sheet was submitted and cognizance was taken for the offence punishable under Sections 376/511 IPC. 5. The case was further committed to Court of Sessions and amended charge has been framed under Sections 376 read with Section 511, Section 354, Section 457 of IPC and the same was read over and explained to accused in Hindi to which he pleaded not guilty and claim to be tried. 6. Record further reveals that, accused-appellant filed an application for discharge under Section 227 which was dismissed by the learned trial court, against the said dismissal, accused- appellant preferred a revision petition before the High Court and the same was rejected the Hon’ble High Court and it made an observation that prima facie Sections 354/376 read with Section 511 and 457 of IPC are attracted in the present case as such charge was amended. 7. The trial court after analyzing the evidence available on record exonerated the accused for charges under Sections 376/511 and 354 of IPC, however, found accused guilty under Section 457 of IPC. 8. Learned counsel for the appellant, at the outset, submitted that except the grand-mother of the victim, all other witnesses got hostile in the present case and learned trial court has not appreciated this fact and relying mainly on fardbeyan which is not a substantive piece of evidence held guilty accused under Sections 457 of IPC which is not permissible under the law. 9. Learned A.P.P. for the State submitted that of course number of prosecution witnesses turned hostile in the present matter but factum of entering of accused in the house of the informant has been corroborated from the mouth of witnesses who even got hostile as such, there is no infirmity in the judgment dated 09.12.2003 and order of sentence dated 11.12.2003 passed by the learned trial court. 10. Heard the rival submission and perused the trial court records. 11. It is apposite for this Court to look into the ingredients enumerated under Section 456 and 457 of IPC before appreciating the evidence of the present case. Section 456 and 457 of IPC read as follow:- 456. 10. Heard the rival submission and perused the trial court records. 11. It is apposite for this Court to look into the ingredients enumerated under Section 456 and 457 of IPC before appreciating the evidence of the present case. Section 456 and 457 of IPC read as follow:- 456. Punishment for lurking house-trespass or house- breaking by night.—whoever commits lurking house- trespass by night, or house-breaking by night, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 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. From bare perusal of Section 456 of IPC it seems that the above said Section provides the punishment for lurking house trespass or house breaking by night. The legislature has provided punishment of description which may extend to three years and shall also be liable for fine. To attract Section 456 of IPC, it is mandatory that the offender has committed either lurking house trespass at night as provided under Section 444 of IPC or house breaking by night given under Section 446 of IPC. Section 457 of IPC provides that if either i.e. lurking house trespass or house breaking by night has committed for which punishment is imprisonment, shall be held liable under Section 457 of IPC. The punishment prescribed for Section 457 of IPC which may extend to five years along with fine and if the intention of committing theft has proved then the terms of imprisonment may be extended for a period of fourteen years. To bring home the offence punishable under Section 457 of IPC the prosecution is to be prove all the elements needed to prove an offence punishable under Section 456 of IPC. To bring home the offence punishable under Section 457 of IPC the prosecution is to be prove all the elements needed to prove an offence punishable under Section 456 of IPC. These apart, the prosecution has to prove that the lurking house-trespass at night abovesaid was committed with a view to committing an offence which is punishable under the law by imprisonment, or, with a view to commit the offence of theft on proof of which the culprit may be awarded a graver penalty. 12. Coming to the facts in hand after the perusal of record, transpires that prosecution has examined as many as seven witnesses. P.W. – 1 Rajeshwar Rai, P.W. – 2 Rudan Devi, P.W. – 3 Rajendra Prajapati, they are neighbours of informant and have not supported the case of prosecution. P.W. – 4 is grand-mother of victim and mother of informant, P.W. – 5 is the victim, whereas P.W. – 6 is the informant and father of the victim, P.W. – 7 is the I.O. of the present case. 13. P.W. 5 victim has categorically stated in her examination- in-chief that convict-appellant did nothing wrong with her and he did not enter in her room and police had not made any inquiry from her and despite lengthy cross-examination on behalf prosecution, nothing has been extracted from the mouth of this witness which could support the case of prosecution. 14. P.W. – 4 is the grand-mother of the victim who has stated that the informant is her son and victim is her grand-daughter and 12 years of age. On the day of incident she along with her grand-daughter were sleeping, then convict-appellant entered into her room and her grand-daughter (victim) told her that she was put on other cot and he started pressing her then they woke up and went outside and door was got closed and commotion was made then persons of vicinity assembled and by arranging light when door was opened, then it was found that convict-appellant was in the room. In cross-examination, she has stated that she could not say that convict-appellant entered into her house for doing wrong with her grand-daughter and she has having low visibility in the night. 15. In cross-examination, she has stated that she could not say that convict-appellant entered into her house for doing wrong with her grand-daughter and she has having low visibility in the night. 15. P.W. – 6 is the informant who has deposed that his mother and daughter were shouting Chor-Chor and the thief was kept in the room, neighbourers also woke up and information was given to police, then door was opened and it was found that convict- appellant was in the room. Police arrested him and he has also not been able to tell, with what intent he entered into the room. The informant also declared hostile but nothing is extracted from his mouth apart from what he has stated in his examination-in-chief.In cross-examination, he has stated that his mother is having low eye sight in the night. 16. P.W. – 7 is the I.O. of the present case who has stated that convict-appellant got arrested from the house of informant. However, this fact has not been mentioned in the case diary apart from that he has stated qua recording of statement of number of witnesses and given description of place of occurrence. 17. P.W. – 1 who has been declared hostile by the court but has also stated that he came across the fact in the morning at 04:00 O’clock that convict-appellant got apprehended while he was being taken in police Jeep but for which purpose he was apprehended he could not able to tell. Victim has stated that convict-appellant did nothing wrong with her and he did not enter into the room. Whereas grand- mother (P.W. – 4) of the victim has stated that convict-appellant entered into the room but in cross-examination, he has stated that she could not be abled to tell that convict-appellant entered into the room for the purpose of doing wrong act with her grand- daughter. Informant (P.W. – 6) has also stated that his mother locked the miscreant inside the room and when the police official came and door was opened then it was found that convict-appellant was inside the room. 18. So, except victim, informant and his mother have stated that convict-appellant was locked inside the room and when the room was opened in the presence of police officials then it was found that convict-appellant was the person. 18. So, except victim, informant and his mother have stated that convict-appellant was locked inside the room and when the room was opened in the presence of police officials then it was found that convict-appellant was the person. This fact further found corroboration from the mouth of I.O. who has stated that convict-accused got apprehended from the room. However, at the same time he has stated that he has not mentioned this fact in the case diary. No material is available on record that for what purpose convict-appellant entered into the room of the informant in the night, this Court is of considered view that ingredients of Section 457 of IPC is not available in the present case. 19. In view of aforesaid discussions, this Court finds that prosecution has not been able to prove beyond reasonable doubt that what offence punishable with imprisonment appellant had to commit, as such, there is no offence is made out under Section 457 of IPC. However, it has been proved by prosecution that appellant had entered into the home/room of informant in the night and was apprehended from the bolted/locked room in the presence of police, therefore, ingredients of Section 456 of IPC is available on record. 20. This Court finds appellant guilty under Section 456 of IPC. Records reveal that appellant was in judicial custody for about one year and twenty eight days. Therefore, ends of justice would be met if sentence awarded to the appellant is modified to the period of custody already undergone against the maximum punishment of three years as provided for the offence under Section 456 of IPC. 21. Therefore, judgment of conviction dated 09.12.2003 and order of sentence dated 11.12.2003 passed by learned Additional Sessions Judge, Fast Track Court No. VI, Hazaribagh in Sessions Trial No. 210 of 2003 whereby and whereunder, the appellant has been convicted under Section 457 of the Indian Penal Code and has been sentenced to undergo R.I. for four years, is modified to the above extent. 22. Therefore, the present appeal is disposed of with aforesaid modification. 23. Let the lower court records be sent back to the court concerned forthwith.