JUDGMENT :

B.K. Behera, J. - Mr. D.P. Sahu, the learned Counsel for the Petitioner, has challenged the concurrent findings of the trial and appellate Courts against the Petitioner holding him guilty of the charge of committing lurking house trespass with the intent to commit theft u/s 457 of the Indian Penal Code on the basis of the evidence of seven witnesses examined for the prosecution and accepting its case that during the night of the 29/30th April, 1976 at about 1.30 a.m., the Petitioner committed the offence of lurking house trespass by entering into the building belonging to Anirudha Bhoi (P.W. 1), used as a human dwelling, in order to commit theft when he was detected inside a room which had been chained from inside and caught red-handed and dispelling the case of the defence that the entry was not for the purpose of commission of theft. The case of the Petitioner was that he was in love with the wife of P.W. 1. Mr. Sahu has submitted that the findings recorded against the Petitioner are unreasonable and perverse calling for interference by this Court in revision, while Mr. Rath, the learned Additional Standing Counsel has supported the order of conviction. The Petitioner, for his conviction, has been sentenced to undergo rigorous imprisonment for a period of one year.

2. I have been taken through the relevant evidence from the side of the prosecution and the evidence of two witnesses examined on behalf of the defence.

3. It would admit of no doubt from the evidence of P.Ws. 1 to 5 that during the night of the incident, the Petitioner was found inside a room of the dwelling house of P.W. 1 when the P.W. 1 and his wife were away from the house, having gone to see 'Pala'. There was, however, no evidence to show that the Petitioner was aware of the fact that the wife of P.W. 1 was absent from the house at the relevant time. In order to falsely show that the Petitioner's intention was to commit theft, two inmates of the house, namely, Anirudha (P.W. 1) and his mother Saibani (P.W. 3), introduced a theory that a hole had been made on the wall which would allow a person to enter inside. The other witnesses, namely, Sudan Sahara (P.W. 2), Sugriva Nagi (P.W. 4) and Jadunandan Barik (P.W. 5) had not spoken a word about it. Neither of the two Investigating Officers (P.Ws. 6 and 7) had testified a bout it except for the fact that P.W. 6 had answered to a Court question by saying that he had noticed a space in between the wall and roof of the room where the incident had taken place. This, however, would not give an indication, as sought to be shown by P.W. 1, that some bricks of the wall of the room adjoining the courtyard had been opened. Undoubtedly, the Petitioner had not been armed and he had no house-breaking instrument with him. No incriminating article had been recovered from his person or possession. As the evidence would show, his father was the Sarpanch of the locality and it could not be said that he was a man of no means. There had been strained relationship between P.W. 1 and some other persons on the one hand and the father of the Petitioner on the other owing to the election to the office of the Sarpanch, but the evidence would undoubtedly show and it had been admitted by P.W. 1 himself that the Petitioner, aged about 20 years, had at times been visiting his house. Although P.Ws. 1 and 3 wanted to bolster up an accusation against the Petitioner that his intention was to commit theft of utensils and their evidence was that utensils were lying scattered, this had not been deposed to by any of the other witnesses and none of the Investigating Officers had testified that utensils were found removed or lying scattered.

4. P.W. 4 had blurted out a statement unsupported by any other evidence that to his query, the Petitioner told him that he had entered the room to commit theft. None of the other co-villagers of P.W. 1 had testified about it and while recording the statement of the Petitioner u/s 313 of the Code of Criminal P