"Truth can be stated in a thousand different ways, yet each one can be true." - Swami Vivekanand

Saturday, December 25, 2010

Housebreaking : Crime & Time.

While reading Indian Penal Code, 1860 (hereinafter referred to as IPC or the Code), I found something bit interesting. The whole Code is interesting, very carefully drafted and an example of exhaustive statute. IPC includes offences and punishments. It is so much inclusive that it lists not only common offences like theft, robbery, dacoity, rape, abduction, kidnapping but also some unthinkable offences like ‘Fouling water of public spring or reservoir’ (Sec. 277) and Erasure of mark denoting that stamp has been used’ (Sec. 263) etc. For common readers I wish to provide these two offences from the Code.

277. Fouling water of public spring or reservoir.—Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

263. Erasure of mark denoting that stamp has been used.—Whoever fraudulently or with intent to cause loss to Government, erases or removes from a stamp issued by Government for the purpose of revenue, any mark, put or impressed upon such stamp for the purpose of denoting that the same has been used, or knowingly has in his possession or sells or disposes of any such stamp from which such mark has been erased or removed, or sells or disposes of any such stamp which he knows to have been used, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

So the Code provides definitions of offences and punishments for it. Now coming to the interesting part for which I wished to write this piece.

Sec. 445 talks about ‘Housebreaking’.

445. Housebreaking.—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:—

Now let us not go into those six ways, as that will be out of context. After this, Sec. 446 speaks of the same offence but done ‘by night’.
446. Housebreaking by night.—Whoever commits housebreaking after sunset and before sunrise, is said to commit “housebreaking by night”.

We clearly see two different Sections viz. Sec. 445 and Sec. 446, bearing difference only of time. Punishments for these offences are provided in Sec. 453 and Sec. 456 respectively.

453. Punishment for lurking house-trespass or housebreaking.—Whoever commits lurking house-trespass or housebreaking, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

456. Punishment for lurking house-trespass or housebreaking by night.—Whoever commits lurking house-trespass by night, or housebreaking 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.

So, it can be clearly seen that Sec. 453 demands punishment of imprisonment which may extend to two years and fine. But Sec. 456 demands punishment of imprisonment which may extend to three years and fine. For the same offence, done by night, imprisonment may be for 3 years. The question here is ‘can time magnitude only change the severity of punishment’? Or will the punishment depend upon the time when the crime is committed? Theft is theft, done in days’ time or by night. Equal punishment is there. Time cannot change the punishment. If you do ‘housebreaking’ by day you will be punished of imprisonment upto 2 years, but same if you do by night, you may be punished to 3 years. In other words, ‘housebreaking’ by day has smaller punishment. Housebreaking before night (before sunset and after sunrise) may save you one year in jail! Also, one can start the ‘procedure’ of housebreaking by evening and carry on it till the Sun sets. Then rests for the Sun to rise, and then again begins his ‘work’ to complete it. If at all he is caught, then what should be done?      He will need a good lawyer!

When I talked about it to a former Commissioner of Police (CP) of Mumbai, he told me that there are chances of other things and effects in the night. He also pointed out such Sections in The Police Act. Quantity of suspicion is more by night. Some lawyers also told me that circumstances at night are different and therefore the difference in punishment. But I still feel that punishment should be for crime/offence. And not be dependent on the time factor.  If he does something more at night owing to other things and circumstances, he may be very well punished for those additional things. But for equal offence, done in any quarter of the day (or night) he should be punished equally.

A probable reason, I think may be, person gets benefit of the darkness and unpeopled or lonely places. But again then other crimes also have benefit of such circumstances. Not much depends on it. Just found it to be interesting and worth sharing.


  1. A few more thoughts on this.

    Scenario 1 A: Chawl A: All doors open. People come and go. Someone puts a hand inside through the window.. person sitting inside thinks someone is just trying to greet/have fun: probability 50%. Same thing in the night probability of feeling that: 0%.
    1. B. Chawl A, door open, someone enters the room: probability of feeling no danger: 95% during the day. In the night even if the door is open.. 0.1%.

    Scenario 2: Telephone rings 1 am even if you know your closest friend is at the other end.. you will feel something is definitely wrong. If it rings 1 pm.. you will probably just be angry that he wake you up.

    Basically, it is the feeling comes close to something like Assault, that matters here. The sudden feeling of shudder.. the feeling that everybody is sleeping, who will help? someone has been watching me, it must be well planned.. Victims are supposed to be sleeping and two of the major senses don't work when people are asleep and they are more vulnerable and feel helpless and the sudden shock adds to it.

    The case might be different if there is a game night and 50 people are there at home and all are up as in the broad daylight. And there is as much as broad daylight in the house, then the case will be different.. has to be different.. the defense will be different and hopefully, the housebreaking will be treated as committed in the daylight. (Of course, insanity would be the first defense in such a case :)). Because that seems to be the intent behind the difference.

    Of course, as you mentioned, if someone enters during daylight, the people do not come to know about it, and if the person can prove that he/she did not do ANYTHING in furtherance of the crime, starts the process again after the daybreak and comes out before sun sets (what is the probability??) then yes, you are right. He might just make a case for simple housebreaking. But laws are made for people and for day to day life. They don't exist in the thin air and not supposed to work in the thin air.. that is why the hypothetical case I talked about as well as the one you talked about will get the best defense as insanity. No real thief would do that right?

  2. Basically, it is the people and what they suffer and feel matters.. and it is definitely different during the night than during the day in this case. And laws, which are made for people takes notice of it and frowns upon it (my fav. cliche :)). Theft (not at home) is different from housebreaking. Because law wants to acknowledge that homes need to be safe, safer than the roads and parking lots and shops. Not only the act matters, the place and time matters too. Anyway.. it's a great subject. Law is divine!

  3. Another aspect of it is from the viewpoint of the criminal: if he breaks in during the night, finding victims vulnerable is what he is looking for, he wants to take advantage of the darkness, even if he does not know the law (as it is not the defense), he invariably seems to have planned it better, more thoughtfully. Should he not be punished more if he is caught? As you said, keeping it simple housebreaking and adding other elements like assault to it as other elements may not always work. Because if noone even notices him (the probability of that is more at night), how will the element of circumstantial advantage to him be taken care of? When the probability of his successful committal goes up, the probability of his being caught goes down, it needs to be accounted for.

    If he knows the law.. well, more deterrence.

    Really thought provoking! I can't stop thinking about different aspects of it.

    But one thing is certain. These laws were codified taking into consideration many centuries worth of case law. And they do have some great reasons behind the way they are codified. You should read more in Halsbury's laws. American as much as I know about it (I definitely don't claim to know much, but), is very different. They evolved their own system, independent of English laws, no English case law. And times have been changing so fast, it has been changing with the time lacking the solid structure India got to start with. The point is.. every word and comma in the IPC has a solid reason. I think we should just keep trying to understand it (read case laws behind it) without questioning it as far as possible. But it was definitely a good thought provoking issue and one should think on such lines.

  4. In the above example: adding assault as an independent element won't work if noone notices.

  5. @ Anamika -
    Namaskar, I dont know who you are, as ur profile does not provide any info. But I would like to hear more abt U.
    As always, you have read my article and have expressed your opinions. I salute your efforts taken in posting wonderful comments here. You have brought forth another angles of the issue. Even providing some reasoning which is acceptable to me. I liked your opinion that IPC should be accepted with , and . therein. I agree 100%. I will read what you have suggested.
    Mail me please at vnwbhai@gmail.com

  6. Vikram, gr8 to know your point of view. But to take advantage of the dark is very easy. When street lights go off during rains in the evening, police vans immediately start taking rounds of the area because such places are frequented by robbers. During the day, even if the house is robbed, others i.e. neighbours and other people can see the face of the thief , but at night, it is difficult,next to impossible. During the day, even the helpless can shout for help but at night, shouting for help is of no use as there are negligible people around the house. At night, we are deep asleep. So the robber has a chance to rob without the robbery coming to our knowledge.
    During daytime, even though we sleep, we are not in deep sleep. So , we can atleast get a hint of someone approaching.
    Generally , the robbers cover their faces up. So, is it possible to identify their faces in the dark? AND ONE OF THE MAIN PROSPECT......
    During the daytime, it is possible to find something at hand to tackle the robbers , maybe a stick,knife,some acids ,powders ,etc. But is it possible at night when we are half asleep even while tackling the robbers???? SO I FEEL THAT THE PUNISHMENTS GIVEN AT DIFFERENT TIMES ARE CORRECT AND NECESSARY.

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  8. Hi,

    I almost agree with Sampanna on the reasons for day/night difference in the punishments. As it is easier to rob at nights, there should be more stronger deterrent or negative incentive for such a crime.

    But on the other hand there is another reality that we should look at. In these days of nuclear family most of the houses are closed during the daytime as well. In fact the daytime housebreaking is more in number these days. So I feel what Vikram is saying is quite appropriate now and should be implemented.

  9. Thank you so much.. I thought you knew me.. and of course you know me for the reasoning comes from the same family.. I am Gauri Walawalkar :)

  10. It is better to commit 'housebreaking' in 'broad daylight'!
    - Rajendra Phadke