JUDGMENT

A.S. Tripathi, J. - This revision has been preferred against the judgment and order dated 21st September, 1988 passed by IInd Additional Sessions Judge of Morena, whereby the appeal of the petitioners was dismissed maintaining their conviction u/Sections 457 & 380 IPC and their sentence of two years R.I. each on both counts. The two sentences were directed to run consecutively.

2. The facts of the case are that a theft had occurred in the night between 6/7th of May, 1976 in the house of one Bhawar Singh, PW 1. The ladies of the house were sleeping on the roof. It was known in the morning that a theft had taken place in the house. A report was lodged. The matter was investigated. On 27th May, 1976, one of the accused namely Bedaria was arrested from whose possession, one Mouser gun and other articles were recovered and recovery memos Exs. P.13 and P. 14 were proved on record. Similarly, on 16th June, 1976, other co-accused Raghunath (since dead) was arrested and some articles like ornaments, cash etc. were recovered from his possession vide recovery memos Exs. P. 9, P. 10 & P.11 which were proved on record. On 11th of July, 1976 accused/petitioner Kailashi was also arrested and cash, ornaments were recovered from his possession. Recovery Memos Exs. P.6, P.7 and P.8 were proved on record.

3. The petitioners were prosecuted. The Trial Court had recorded the statements of PW 1 Bhawar Singh, PW 5 Hanslal, PW3 Kamla DeY1and PW 2 Pushpadevi, the wife of the complainant Bhawar Singh. They have proved the factum of theft which has occurred in their house. The recovery memos were also proved and the Investigating Officer PW 11 R.S. Tripathi was also examined who had proved the relevant documents on record. The Trial Court after believing the evidence found that charges u/Sections 457 and 380 of IPC were proved on record and the petitioners were convicted as aforesaid. Against that order, an appeal was preferred which has been dismissed.

4. In this revision, the first legal point was raised that from the evidence on record, no charge u/Section 457 IPC was made out. The only allegation was regarding the recovery of stolen articles from the possessions of the petitioners. There was nothing on record to show that the presence of any of the petitioners was seen near the place of occurrence during the night. The occurrence of theft could be known only in the morning when the inmates of the house woke up and came down and the door was found to have been opened and the theft was committed. In this view of the matter, learned Counsel for the petitioners argued that there is no iota of evidence to fulfill the ingredients of Section 457 of lurking house-trespass or house-breaking by night on account of theft. Reference was also made to Section 457 IPC, which provides punishment for lurking house-trespass or house-breaking by night. Lurking house-trespass has been defined u/Section 443 IPC. The definition provides:

"Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the tresspass is said to commit "lurking house-trespass."

5. It has been pointed out that in this case, nobody has seen any of the petitioners near the house in which the theft was committed and it was, therefore, argued that the ingredients of Section 443 IPC are not fulfilled to prove the charge of lurking house-trespass, by night. As such, the punishment u/Section 457 IPC is uncalled for.

6. The only evidence against the petitioners was that of recovery of stolen articles from their possession on different dates of their arrest. Mere recovery does not raise any presumption or commission of theft against the petitioners in view of the provisions of Section 114 of the Indian Evidence Act. Section 114 of the Indian Evidence Act provides that:

"The Court may presume the existence of any fact which it thinks likely to ha