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Several Elements which Constitute the Offence of House-Breaking (Indian Penal Code, 1860)

January 9, 2019 0 Comment

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 he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have unfastened by himself or by an abettor of the house-trespass.

Explanation:

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Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this sec­tion. [S. 445].

Illustrations:

(i) A commits house-trespass by making a hole through the wall of Z’s house and putting his hand through the aper­ture. (ii) A commits house-trespass by creeping into a ship at a port­hole between decks, (iii) A commits house-trespass by entering Z’s house through a window, (iv) A commits house-trespass by entering Z’s house through the door, having opened a door which was fastened, (v) A commits house-trespass by entering Z’s house through the door, having lifted a latch by putting a wire through a hole in the door, (vi) A finds the key of Z’s house-door, which Z had lost and commits house-trespass by entering Z’s house, having opened the door with that Key. (vii) Z is standing in his doorway.

A force a passage by knocking Z down and commits house-trespass by entering the house, (viii) Z, the door-keeper of Y, is standing in Y’s door-way. A commits house-trespass by entering the house, having deterred Z from oppos­ing him by threatening to beat him.

In all the above cases (i) to (viii) the offence committed is house­breaking. (Punishment Two years and fine).

(b) House-breaking after sunset and before sunrise is said to be “house-breaking by night” [S. 446] [Punishment Three years and fine].

Problems:

A. A with the intention of murdering B, enters B’s house on a dark night and mistaking a log of wood for B, shoots at it and runs away. What offence, if any, has a committed? Give reasons for your answer.

A has entered the house of B without any authority. He has, there­fore, committed house-trespass as defined in Section 442; I.P.C. Fur­ther A has entered the house of B with an intention of murdering him. Murder is an offence punishable with death or imprisonment for life.

A has, therefore, entered the house of B with the intention of commit­ting an offence punishable with death and as such he is guilty of house-trespass in order to commit an offence punishable with death an defined in Section 449,1.P.C.

It cannot be said that A is guilty of an attempt to commit murder under S. 307, I.P.C. The reason is that he shot at a log of wood mistaking it for B and, therefore, it cannot be said that he shot at B with the intention and knowledge that by shooting he would cause the death of B. Section 307, I.P.C., is therefore inapplicable in the case.

B. A enters a house with the intention of committing theft. But moved by the poverty of the householder, he drops a ten- rupee note and leaves. What offence, if any, has a committed?

Ans. In this case A has committed house-trespass under S. 442 of the Indian Penal Code. That section, inter alia, provides that who­ever commits criminal trespass by entering into or remaining in the building used as a human dwelling is said to commit ‘house-trespass’. Criminal trespass depends on the intention of the offender and not upon the nature of the act.

The intention of A was initially to commit theft. The offence of criminal trespass was complete as soon as there was unlawful entry with the intention of committing theft. Even the introduction of any part of the criminal trespasser’s body is entering, sufficient to constitute house trespass, no matter if his intention was subsequently changed into generosity and magnanimity.

(Of course in Gandhian philosophy this sudden change of intention would be treated as ‘a change of heart’ for which the criminal would be placed in high esteem as a lofty human being but the criminal law would not condone his act for committing ‘house-trespass’ even though his subsequent conduct may be a mitigating factor for award­ing a lesser sentence).

C. A, B, C, D and E enter P’s house at night in order to beat him with lathi. When P’s servant stopped them, A struck him is blow and felled him down. B stole a valuable watch from P’s table. C alone gave some lathi blows to P. Point out the offence or of­fences, if any, which each of the accused has committed.

A, B, C, D and E are all guilty of the offence of house-breaking by night under Section 446,1.P.C. as also of causing simple hurt to P and P’s servant under Section 323, I.P.C., read with Section 34, I.P.C. because what was done by C was done in furtherance of the common intention of all of them. They all are guilty also of being members of an unlawful assembly as they were five in number and their common object was to commit an offence. They are all similarly liable for theft.

The four offences that have been committed as above have to be distinguished and explained a little further.

Unlawful Assembly:

The offence of being renumbers of an un­lawful assembly under Section 143, I.P.C. is committed when 5 or more persons compose an assembly, the common object of which is to commit an offence. In this case the assembly was of five persons and the common object was to beat P with lathi, to commit criminal trespass in the house of P and cause simple hurt to P and his servant, and steal from P s house; hence all of them are liable under Section 143, I.P.C.

House-breaking by night:

All of them entered P’s house with intention to commit an offence, hence they committed criminal tres­pass under Section 441, I.P.C. Since it was committed by them by entering into a building they committed house trespass. Since they used criminal force in entering the house of P by assaulting P and his servant, they committed the aggravated form of criminal trespass, namely, house-breaking.

Since the house-breaking was committed af­ter sunset and before sunrise they are all guilty of a special kind of house-breaking, namely house-breaking by night within the meaning of Sec 4-6, I.P.C.

Causing s’ simple hurt:

All the five persons were members of the unlawful assembly and had a common object to beat P with lathis, hence the lathi blows were given in prosecution of the common object of the assembly and although C alone gave the blows, each one of the members of the assembly is liable for causing simple hurt to P. For the same reason each one of them is liable for causing simple hurt to P’s servant and the offence that is made out of one under Section 323, read with Section 34, I.P.C.

Theft:

For the reasons given above all of them are also liable for theft and it is not B alone who should be held liable, since com­mitting theft was also the common object of the assembly.

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