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Judgment
Das, J.—The petitioner was convicted in the Court of first instance u/s 457, Indian Penal Code, for having committed lurking house trespass by night in order to commit theft, and was sentenced to undergo rigorous imprisonment for three months.
In appeal the learned Sessions Judge came to the conclusion that there was undoubtedly a trespass, but that it was not proved that the object of the trespass was to commit theft. He thought that there was another object, namely, to annoy or insult the women in the house in which the trespass was committed. He altered the conviction from one u/s 457 to one u/s 456 and sentenced the petitioner to one month's rigorous imprisonment,
It seems to me that the petitioner has really not been tried for an offense of which he has now been convicted. The case of Mahomed Rossein in v. Emperor 22 Ind. Cas. 766 : 41 C. 743 : 15 Cri.L.J. 190 : 18 C.W.N. 1247 is in point. I, therefore, set aside the conviction and sentence passed upon the petitioner.
The question still remains whether he should be re tried. In my view it is unnecessary to order a re trial, having regard to the fact that he has already been in jail for 15 days. I, therefore, do not direct a re-trial.