JUDGMENT Sapru, J. - These are two applications in revision against an order of the learned Sessions Judge of Kumaun affirming the convictions by a learned Magistrate of the first class under Sections 379 and 411 of the Indian Penal Code and Rule 81(4) of the Defence of India Rules but modifying the sentences imposed under those sections. 2. The first application is by Mohammad Unus. He was convicted by a Magistrate of Lansdowne under Rule 81(4) of the Defence of India Rules and Section 411 of the Indian Penal Code and sentenced to undergo 9 months R.I. under each count, the sentences to run concurrently. The second application is by Fazal Dad and Mohammad Arif. They were convicted by the same Magistrate under Rule81(1) of the Defence of India Rules and Section 379 of the Indian Penal Code and sentenced to undergo one year's R.I. under each count, the sentences to run concurrently. The applicants went in appeal to the learned Sessions Judge of Kumaun, who affirmed their convictions but reduced their sentences to 4 1/2 months R.I. and 6 months R.I. respectively. It is against that order of the learned Sessions Judge that the applicants have come up to this Court in revision. 3. The facts which have given rise to these applications in revision may be stated shortly. On the 5th June 1946 at about 6-15 in the evening two persons, namely, Mr. R.H. Bhukhari and Mr. A.P. Barthwal were walking along a road at Kotdwara. On reaching the hospital building, they noticed a military truck standing the road. They also noticed that Fazal Dad who is a naik and Mohammad Arif who is a sipahi were sitting on a culvert which was near the road, while Mohammad Unus and Amira were engaged in putting two empty tins of petrol on the truck. After putting the empty tins on the truck, Mohammad Unus and Amira proceeded ahead in the direction of Dogada. So far as Mr. Bhukhari and Mr. Barthwal were concerned, they continued their walk. As they went along, the truck passed them in the same direction. This was the last truck of a convoy which was being driven by Mohammad Aril who was wearing a white baniyan and which had as the commander of the convoy Fazal Dad Naik in it. Bhukhari and Mr. Barthwal were concerned, they continued their walk. As they went along, the truck passed them in the same direction. This was the last truck of a convoy which was being driven by Mohammad Aril who was wearing a white baniyan and which had as the commander of the convoy Fazal Dad Naik in it. On going towards the Giwai bridge side, they noticed Mohammad Unus and Amira near the bridge on the left hand side. Their attitude appeared to them to be suspicious so much so that Mr. Bukhari actually went to see them. The story is that he found, on going there two full tins of patrol in concealment in bushes. On being questioned by Mr. Bukhari, the two accused told him that those petrol tins contained 4 gallons of petrol which they had purchased for a sum of Rs. 8 from the two men who had just passed them on the truck. Possession was taken of the tins by Mr. Bukhari and a report was made by him at police station, Kotdwara. He telephoned to the police at Dogada and suggested to it that the truck should be stopped and that the full number of the truck should be taken down. He gave the number of the truck as 11. He also rang up the Station Staff Officer at Lansdowne, but unable to get into touch with him. When the truck arrived at Dogada, no checking was done on its arrival as suggested by Mr. Bukhari but Fazal Dad and Mohammad Arif were put under military custody. The truck was put under guard at Lansdowne and the petrol in it was subsequently checked by one Lieutenant Chauhan who, however, does not figure as a witness in the case. As a result of that checking it was discoved that no petrol was missing. The truck had been given 21 gallons for consumption. According to the story told by Captain D. Cilva the average consumption of petrol between Kotdwara and Lansdowne was anything from 8 to 12 gallons. The amount of patrol actually found on the truck after it had completed the run on that day was 12 gallons. The truck had been given 21 gallons for consumption. According to the story told by Captain D. Cilva the average consumption of petrol between Kotdwara and Lansdowne was anything from 8 to 12 gallons. The amount of patrol actually found on the truck after it had completed the run on that day was 12 gallons. On this basis both the learned Magistrate and the learned Sessions Judge has assumed that possibly 4 gallons which was the amount of petrol which is said to have been sold by Fazal Dad and Mohammad Arif to Mohammad Unus was sold to him, i.e. Mohammad Unus. On the admitted facts of the case, the prosecution has failed to establish that the consumption of petrol by the truck was less than 12 gallons which is the maximum consumption between Kotdwara and Lansdowne for a truck. Inasmuch as the truck could consume 12 gallons, it cannot be assumed that the truck on the 5th June 1946 had consumed only 8 gallons and that the 4 gallons which are said to have been sold by Fazal Dad and Mohammad Arif to Mohammad Unus thus necessarily represented petrol belonging to Government. The learned Sessions Judge came to the conclusion that the accused must be presumed to have stolen petrol as the manner in which Mohammad Unus and Amira obtained possession of it rather suggested that they must have known or have had reason to believe that it was stolen. The difficulty in this case is that it has not been shown that there was any shortage of petrol in the truck when it arrived at Lansdowne. It has not been shown as a fact that any petrol disappeared from the truck. This fact of shortage not having been established, no presumption that the petrol which is alleged to have been recovered from Mohammad Unus was stolen property can be made. There is, therefore, no conclusive evidence to prove that the petrol represented stolen property. In this view of the case, it is not necessary to consider the other points which have been raised in these revisions. There being no sufficient evidence of theft, the conviction of the applicants u/s 411 and 379, I.P.C., is not sustainable in law. 4. As regards the conviction of the applicants under Rule 81(4) of the Defence of India Rules, the position is that the charge-sheet is very defection. There being no sufficient evidence of theft, the conviction of the applicants u/s 411 and 379, I.P.C., is not sustainable in law. 4. As regards the conviction of the applicants under Rule 81(4) of the Defence of India Rules, the position is that the charge-sheet is very defection. It does not state the specific provisions of the Motor Spirit Rationing Order, 1941, which the applicants are alleged to have contravened. Learned Counsel for the Crown has argued that though the charge-sheet does not state it, the section applicable to the offence which Mohammad Unus has committed is Section 22. That section runs as follows:- No person shall furnish or acquire a supply of Motor Spirit other than in accordance with the provisions contained in this order. 5. The initial difficulty with the prosecution case is that is has not been shown that any petrol belonging to the military authorities was in point of fact furnished by the driver or controller of the convey to Mohammad Unus. Undoubtedly Mohammad Unus staled that he did acquire motor spirit from the driver and controller of the truck. He was not asked, however, to explain how he came to acquire that patrol from them. What I mean to say is that the question does not appear to have boon put to Mohammad Unus when he was being examined as an accused person whether he had any coupons which would enable him to acquire a supply of motor spirit. So far as the prosecution is concerned, it has failed to prove that the petrol which is supposed to have been in the possession of Mohammad Unus was obtained by him in any manner which is contrary to that laid down by the Motor Spirit Rationing Order of 1941. It was essential for the prosecution to prove this and this lacuna in the prosecution case cannot be made good by any presumptions. 6. The result is that I allow these applications in revision and set aside the convictions and sentences imposed on the applicants. The applicants are on bail. They need not surrender.