The prosecution must establish every element of the crime beyond reasonable doubt, including common intention among co-accused, for a conviction under Sections 457 and 380 of IPC.

ORDER :

RAVI V. HOSMANI, J.

1. Challenging judgment dated 28.09.2018 passed by V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar, in Crl.A.no.98/2016 confirming judgment of conviction and order of sentence dated 18.11.2016 passed by learned Civil Judge and JMFC, Soraba, in C.C.no.77/2008, this revision petition is filed.

2. Sri PB Umesh, learned counsel appearing for Sri Ravindra B. Deshpande, Advocate for petitioner submitted revision petition was by accused no.1 against concurrent findings convicting him for offences punishable under Sections 457 and 380 of Indian Penal Code, 1872, (' IPC ', for short) and sentencing him to undergo simple imprisonment for period of one year each with fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for three months each.

3. As per prosecution, on night of 25.09.2007, accused committed lurking house trespass by breaking open door lock and entering into room of Kummuru Government Higher Primary School and committing theft of one LPG cylinder kept there worth Rs.1200/-. And at 1:30 a.m. on 04.10.2007, when police on beat duty near Hospete Hakkalu and stopped Esteem Car, they found four persons inside car including accused along with three LPG cylinders. On being apprehended, they admitted to have committed theft of LPG cylinders from Kummuru School.

4. After registration of FIR and completion of investigation, charge-sheet was filed against three accused. As accused no.2 was absconding, case against him was split-up. In order to establish charges, prosecution relied on eight witnesses examined as PWs.1 to 8, documents marked as Exs.P1 to P7 and MOs.1 and 2. It was submitted, PW.5 - witness to Ex.P1 - Mahazar, turned hostile and did not support prosecution case. However, accused were appraised of incriminating material, their denial of same was recorded as their statement under Section 313 of Code of Criminal Procedure, 1973, ('Cr.P.C', for short). Accused did not lead any rebuttal evidence.

5. It was submitted, though prosecution has failed to establish charges beyond reasonable doubt and same was highlighted by accused, without proper consideration, learned Trial Judge, proceeded to pass impugned order of conviction. Even though accused challenged it, appeal was dismissed without proper appreciation leading to this revision.

6. It was submitted, there were several material inconsistencies in prosecution version. PW.1 deposed that on 04.10.2007, when he was on night patrol, one Esteem car was found transporting three gas cylinders including one belonging to School of PW.4 - complainant. But, in cross-examination, he stated that vehicle transporting Gas Cylinders was an Omni Car and reiterated same in further cross-examination. It was submitted, said inconsistency was fatal to prosecution case.

7. It was submitted, PW.2 stated to be witness to Ex.P1 - Mahazar admitted that he was unaware of contents of Ex.P1 and further stated that when he went to School, there were no one else. And during cross-examination of PW.3, an admission that mahazar was not drawn at spot and Gas cylinder numbers were not noted was elicited. And though PW.4 stated that Ex.P2 - Mahazar was signed in School, his statement that door of School Kitchen was not sturdy would materially contradict case of prosecution that door lock was broken. It was submitted that PW.4 specifically admitted that Ex.P1 - Mahazar were signed in Police Station.

8. It was submitted, PW.5 did not support prosecution case at all. While PW.6 admitted that vehicle used for alleged transportation was not seized at all. He also admitted that he was not party to Ex.P1 - mahazar and that accused were apprehended by other Police. It was submitted, PW.8 cited as mahazar witness admitted that he was not summoned to be mahazar witness and further admitted to have signed mahazar in police station. PW.7 - investigating Officer admitted drawing of panchanama. A suggestion made that panchanama was not drawn at spot was deni