AMARNATH NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is preferred against the judgment of the First Additional Sessions Judge, Berhampur in Criminal Appeal No. 60 of 1983 confirming the order of conviction passed by the Chief Judicial Magistrate, Berhampur, convicting the Petitioner under Section 456, I.P.C., while reducing the sentence imposed on him to rigorous imprisonment for one month.

(2.) THE gist of the prosecution case is that on the night of 2.11.1981 at about 2.30 A.M., on hearing some unusual sounds Coming from the informant's garage, the informant and his brother went and opened the door of the garage, when they found the accused -Petitioner concealing himself under the car kept inside, and then the Petitioner was brought out and was subsequently handed over to the police. On the basis of the F.I.R. lodged by the informant (P.W. 1) tile police investigated into the case and submitted charge -sheet under Section 457, I.P.C. against the Petitioner. The trial Court convicted the Petitioner under Section 456, I.P.C. and the conviction was upheld by the appellate Court and hence the present revision is filed.

(3.) THE prosecution in all examined four witnesses to prove its case. P.W. 1 is the informant. P.W. 2 is a cook in the house of P.W. 1, P.Ws. 3 and 4 are police officers. The trial Court, on a consideration of the evidence came to the finding that the prosecution case that the Petitioner had entered the garrage of the informant with the intention of committing theft is not acceptable. The appellate Court also had accepted this finding of the trial Court. But all the same, both the Courts below, on the basis of the finding that the Petitioner was found in the informant's garage at the odd hour of the night, held that as no explanation was offered by the accused regarding his presence in the garage, it can be safely presumed that the Petitioner was present there with the intention of committing some other offence. For coming to that finding both the Courts below have assumed that the accused had pleaded that he entered the garage of the informant at that unusual hour of the night at the invitation of the informant's daughter.