Wanchoo, C. J. - (1.) THIS is an appeal by the State against the order of Shri Jagdish Narain Mishra, City Magistrate, Bikaner, by which he acquitted Jagan Nath Singh, opposite party, of an offence under sec. 457 of the Indian Penal Code. Jagan Nath Singh has been served with notice, and on the last date of hearing, namely, 26th of July, 1951, Shri D. P. Joshi appeared on his behalf. THIS case could not be reached on that date. Thereafter it was fixed for today; but neither Jagan Nath Singh nor his counsel, Shri D. P. Joshi, is present to-day. We have, therefore, heard Mr. Sumer Dan, who appears on behalf of the State, in support of the appeal.
(2.) THE case for the prosecution was briefly this. THE incident took place on the 28th of December, 1949, at about 8 P. M. Shri Madan Swaroop Assistant Government Advocate, Bikaner, was having his meal at the time along with his nephew, Parmatma Sharan. One man jumped over the western wall of his house from the side of Alak Math, where there is open land. After jumping over the wall, this man came through the passage, which is in the southern portion of the house. THEn he entered the court-yard, and from there got into one of the rooms, which is in the eastern portion of the house. It is said that some children saw him entering the room. THEse Children immediately raised an alarm that a thief had entered the house. THEreupon, Shri Madan Swaroop and his nephew immediately came out in the court-yard and chained the room, in which the stranger had entered, from outside. THEn they collected the mohallawalas, and the man was taken out of the room. That man was Jagan Nath Singh, opposite party. Information was then sent to the police, and when the police arrived, Jagan Nath Singh was handed over to them. THEreafter the opposite party was prosecuted under section 457 of the Indian Penal Code, and has been acquitted by the Magistrate; hence this appeal. So far as the facts are concerned there can be no doubt that the prosecution story, as given by Shri Madan Swaroop and his nephew, Parmatma Sharan, and one of the neighbours, Sewa Ram, is true. The Magistrate also was of the opinion that the facts, as alleged by the prosecution, had been proved; but he acquitted Jagan Nath Singh on a certain view of the law which he took. When Jagan Nath Singh was questioned by the Magistrate on the facts, he merely said that he was not in his senses at the time, and did not know what had happened. He also said that the witnesses were giving evidence at the instance of the police, which, of course, was an absurd statement. He produced one witness in defence, whose evidence merely was that Jagan Nath Singh, along with some others came to his shop at about 7 P. M. on the 28th of December, 1949, and asked for liquor. These men appeared to have already taken a little too much, and this witness, Hakim Ali, was not prepared to serve them any more liquor; but they insisted on his giving them liquor, and he then gave them one bottle of liquor, which was shared by these persons. It may be mentioned that the prosecution witnesses also said that Jagan Nath Singh was smelling of drink at the time when he was caught. On the evidence on record, we have no hesitation in coming to the conclusion that the facts of the case are as stated by Shri Madan Swaroop and others. The only question which falls for consideration is whether on these facts the opposite party is guilty under section 457 of the Indian Penal Code or any other section. The Magistrate took the view that as the applicant was drunk at the time, and did not know what he was doing it could not be presumed that there was any intention on his part to commit theft. The Magistrate also pointed out that there was no instrument with Jagan Nath Singh with which he could have broken open locks or walls in order to commit burglary. We are of opinion that the Magistrate did not approach the case from the proper angle. We may in this connection refer to sec. 95 of the Indian Penal Code, which the Magistrate seems to have completely overlooked. That section reads as follows: - "nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law : provided that the thing which intoxicated him was administered to him without his knowledge or against his will. " A bare perusal of this section shows that voluntary drunkenness is no excuse for the commission of a crime. It is unnecessary to cite, authority in support of this view, for the words of the section itself are quite plain. Jagan Nath Singh has not proved in this case that the thing which intoxicated him was administered to him without ,his knowledge or against his will. As a matter of fact, if the statement of Hakim Ali is correct, Jagan Nath Singh and his companions asked for liquor themselves, and insisted on Hakim Ali's supplying it. Jagan Nath Singh, therefore, if he was drunk, got in that condition voluntarily. In these circumstances, the court will not attach any importance to the fact that the accused was drunk, and will draw the natural inferences which follow from the acts of the accused. In this case the accused jumped over a wall at 8 P. M. on a cold December night. Then he went through a passage inside the house, and entered the courtyard, and then a room in the house. It is true that Jagan Nath Singh had no implement with him, and that the time was rather early when people were likely to be awake. At the same time, when a person does a thing like that, he might be banking on the inmates of the house being busy with their evening meals, and might hope to get away with something or other. In this particular case, Shri Madan Swaroop, whose house Jagan Nath Singh had entered, was actually having his meal with his nephew, and it was only fortunate that, some of the children noticed Jagan Nath Singh getting into one of the rooms. If this had not been noticed, it was not impossible that Jagan Nath Singh might have run away with some property or other. The evidence shows that the alarm was raised by the children immediately after Jagan Nath Singh had got into the room, and Shri Madan Swaroop and others came out at once and chained the door. Under these circumstances, Jagan Nath Singh must have realised that the game was up, and that may account for the fact that he had not tried to take away anything from the room to which he had got an access. We are, therefore, of opinion that in this case, an inference can properly be drawn from the conduct of Jagan Nath Singh that he intended to commit theft. In the alternative, even if an inference of an intention to commit theft were not to be drawn, there could be no doubt that we can very safely draw the inference that the intention of Jagan Nath Singh was to intimidate, insult or annoy the inmates of the house by jumping into it in an intoxicated condition at the time of the night. The Magistrate, therefore, was not right in acquitting Jagan Nath Singh on the ground that the intention necessary under section 457 of the Indian Penal Code had not been proved. Section 457 of the Indian Penal Code provides punishment for lurking house-trespass by night, or housebreaking by night, in order to the committing of any offence punishable with imprisonment, or in order to commit theft. "house breaking" is defined in sec. 445, and can be committed in six ways. One of these way is given in section 445 in these words: - "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. " In this case, the evidence is that Jagan Nath Singh entered the house by sealing or climbing over the Western wall of Shri Madan Swaroop's house. After he had done that, as the map clearly shows, he could easily get access to the room in which he was found by passing through the passage in the southern portion of the house and thereafter entering into the court-yard, and from the court-yard into the room. His act, therefore, clearly amounted to house-breaking by night, and the intention, in our opinion, primarily was to commit theft. Under these circumstances, Jagan Nath Singh is clearly guilty under sec. 457 of the Indian Penal Code. We may point out that even if his intention is presumed to be only to insult, intimidate or annoy, the offence would fall under sec. 456 of the Penal Code. We, therefore, allow the appeal, set aside the order of the court below, and convict Jagan Nath Singh under sec. 457 of the Indian Penal Code. Considering the nature of his act, we are of opinion that a sentence of one year's rigorous imprisonment will meet the ends of justice, and we, therefore, sentence him to one year's rigorous imprisonment under section 457 of the Indian Penal Code. Necessary steps will be taken to arrest Jagan Nath Singh and send him to jail, as only a notice has been issued to him of this appeal, and he is at large. . ;