JUDGMENT
Batchelor, J.
1. This is an appeal by the Government of Bombay against the order made by the Sessions Judge o Khandesh reversing the conviction recorded against the two respondents under Sections 457 and 511, Indian Penal Code. In other words, the respondents had been convicted of the offence ” of attempting to commit house-breaking by night, and their 90nyiction of that offence was reversed by the Sessions Judge. It was so reversed by reason of the Sessions Judge’s view upon a point of law, and for the purpose of expressing his view on that law the learned Judge quite rightly assumed the state of facts found proved by the Magistrate. The question is, whether upon the state of facts the Judge is right in thinking that these respondents could not be convicted of the offence of attempting to commit house-breaking. The state of facts assumed is that during the night these two respondents dug a hole in the wall of the complainant’s dwelling house with intent to complete that hole in order to make their entry into the house through it, and, having so entered, to commit theft in the house. In fact, the hole was not completed as the respondents were interrupted before they could complete it. It was left, therefore, unfinished in the sense that it did not completely penetrate from one side of the wall to the other. In this state of facts the learned Judge below was of opinion that the respondents’ acts did not amount to an attempt to commit house-breaking, but only to a preparation, and were therefore not punishable. I think that, on the facts as stated, there is really no room for doubt but that the respondents’ acts did in law amount to an attempt. In the leading case ‘ in England Reg. v. Cheeseman (0 Mr. Justice Blackburn, as he then was, in laying down the difference between a preparation antecedent to an offence and the actual attempt, said this :- If the actual transaction has commenced which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime. Here the actual transaction, the distinct overt act, was begun and to a certain point carried through. It was only not carried through to completion by reason of the respondents’ being interrupted by other people. It seems to me clear that if the facts as alleged are proved against these respondents, then they ought to be convicted of the attempt at house-breaking. Whether those facts are or are not proved is a matter which we do not now decide, seeing that the second respondent has not appeared before us; but with this expression of our view upon the point of law, we reverse the order of the Sessions Judge and remand the case to him in order that this charge under Sections 457 and 511 may be dealt with in accordance with law.
