Insufficient evidence for house trespass and initial convictions; the court affirmed theft conviction based on red-handed capture.

ORAL ORDER

The respondent/accused No.2-Fayaz Ahmed has preferred this revision petition against the judgment of conviction and order on sentence 14.11.2017 passed in CC.No.1022/2016 on the file of the I Addl. JMFC, Chitradurga, which is confirmed by the I Addl. District and Session Judge, Chitradurga, in Crl.A.No.85/2017 dated 02.05.2018.

2. For convenience, the parties are referred to as per on their ranking before the trial Court.

3. The brief facts leading to this revision petition are that, the Sub-Inspector of Police, Rural Police Station, Chitradurga, has filed a charge sheet against the accused Nos.1 and 2 for the offense under Section 454 and 380 of IPC. On 23.03.2015 at 12.30 p.m. the accused have entered into the house of CW.1, situated in re survey No.70/2 of Medehalli village and lurking of house trespassed into the pump house by breaking open the lock with iron rod and committed a theft of

10 ft., length 2 inches diameter, old iron pipes and tried to transport the same in auto rickshaw bearing No. KA-16-2997. Thereby, accused committed offence punishable under Sections

454 and 380 of IPC.

4. The accused Nos.1 and 2 arrested on the same day and produced before the Court and were remanded to the judicial custody. The accused No.2 released on bail on 04.04.2016. After filing the charge sheet, charges framed for the alleged offences, same was read over and explained to the accused. The accused No.2 pleaded not guilty and claimed to be tried.

5. To prove the case of the prosecution in all 7 witnesses were examined as PW.1 to 7. 12 documents were marked as Ex.P.1 to 12. And iron pipes marked as MO1. On closure of prosecution side evidence statement under Section 313 of Cr.PC. was recorded, accused has totally denied evidence of the prosecution witnesses. However, he has not chosen to lead any defence evidence on his behalf.

6. Having heard the arguments of both sides the Trial Court has convicted the accused for the offences punishable under Section 454 and 380 IPC, and passed a sentence to undergo imprisonment for a period of 1 year 9 months for the offence under Section 380 of IPC and fine of Rs.3,000/- each. In default of payment of fine the accused Nos.1 and 2 shall further undergo simple imprisonment for a period of three months. The accused Nos.1 and 2 are also convicted for the offence under Section 454 of IPC, for a period of two years each simple imprisonment. Further it is ordered to pay an amount of Rs.4,000/- out of the fine amount to the CW.1- complainantas compensation and remaining Rs.2,000/- to the State. Being aggrieved by the judgment of conviction and order on sentence the accused No.2 has preferred appeal in Crl.A.No.85/2017 and the same came to be dismissed on 02.05.2018. Being aggrieved by the judgment of both Courts the accused No.2-Fayaz Ahmed has preferred this revision petition.

7. The learned counsel appearing on behalf of the revision petitioner would submit that the prosecution has failed to prove the guilty of the accused beyond all reasonable doubt. The entire case of the prosecution rests on circumstantial evidence, that there is no cogent and corroborative evidence to prove the guilty of the accused. IO has not collected any materials as to the broken lock. The IO has also not collected any materials to show that there was a pump house situated in survey No. 70/2 and even IO has not produced any documents to show that the Sy.No.70/2 was standing in the name of the younger brother of the complainant.

8. Absolutely there are no materials to attract the provisions of Section 454 and 380 of IPC. However, both Courts have failed to appreciate the evidence on record. On all these grounds, he sought for allowing this revi