JUDGMENT : Narasimham, C.J. - This is a revision petition against the appellate judgment of the Sessions Judge of Sambalpur, maintaining the conviction of the Petitioner u/s 457 I.P.C. and reducing the sentence passed on him by the First Class Magistrate of Bargarh to one days rigorous imprisonment and a fine of Rs. 500/- (Rupees five hundred). 2. At the time of the admission of this revision-petition notice was issued on the Petitioner to show cause why the sentence may not be enhanced and he was given an opportunity to show cause against his conviction also. 3. The Petitioner is a Marwari youth aged about 22 years living with his father Udmilal Agarwalla in Bargarh town in Sambalpur District. At a distance of about 150 yards from his house there is the house of one Madan Mohan Dora (p. w. 1). The inmates of Madan Mohans house were his wife Padamavati Dei (p. w. 10), his elder daughter Sarada (p w.3) aged about 2 years and his younger daughter aged about 4 years. On 2-2-1957 at about 9 p.m. Madan Mohan after taking his meals slept in the verandah of his house in the ground floor. His two daughters were also sleeping in another room close by. At about 11 or 2 o'clock during that night he heard a cry of alarm raised by his daughter Sarada and on entering her room found a person standing near her head. Immediately he caught hold of him. There was a struggle between the two in the course of which both sustained injuries. The culprit, however, succeeded in rescuing himself and ran away. Another person, who was present at the spot also managed to ran away from the place but the Petitioner was found concealing himself inside the latrine of the house and he was immediately taken into custody, and severely assaulted. On the next day he was taken to the Police Station where F.I.R. was lodged by Madan Mohan at about 11 a, m. During the course of investigation the girl Sarada was examined and was found to have scratch marks on her arm and left thigh. Madan also sustained some injuries. The Petitioner Niranjan Agarwalla was also found to have some injuries presumably caused by the fact that after his arrest he was roughly handled by Madan Mohan and other inmates of his house. 3. Madan also sustained some injuries. The Petitioner Niranjan Agarwalla was also found to have some injuries presumably caused by the fact that after his arrest he was roughly handled by Madan Mohan and other inmates of his house. 3. On these allegations the Petitioner and two other persons were sent up for trial and the charge against them was that they entered the dwelling house of Madan Mohan at night on 2-2-1957 for the purpose of committing theft. The two other accused persons were acquitted by the learned trying Magistrate as the evidence on the question of their identification was not satisfactory. But the lower courts thought that the presence of the Petitioner in the latrine of Madan Mohans house at that hour of the night coupled with the other circumstances were sufficient to show that he was one of the three culprits who entered the house for the purpose of committing theft and hence they both held him guilty of an offence u/s 457 I.P.C. 4. In my opinion, the facts proved will not suffice to establish beyond reasonable doubt that the Petitioner entered the house of Madan Mohan for the purpose of committing theft. The Petitioner appears to be a fairly respectable Marwari of the place. It appears from the evidence of one of the Pujaris of the temple living nearby that the Petitioner gave him money for the purpose of taking flowers from the Temple. The Petitioner is not therefore a needy beggar, who was driven to the necessity of committing theft inside the dwelling house of another person in the locality where he was living. There is also some evidence to show that the Petitioner was known to the family of Madan Mohan, and no attempt was made to remove any article from the house of as to justify the inference that the entry into the house was made for the purpose of committing theft. Doubtless, Madan Mohan has stated in his deposition that his daughter awoke on hearing a noise caused by the attempt to open one of the boxes in her bedroom. But no mark of violence was found on any of the boxes subsequently. Moreover, the injuries found on the girl Sarada render the story of theft highly improbable. If the culprit had really intended to commit theft it is unlikely that they would have caused scratch marks on her arm and thigh. But no mark of violence was found on any of the boxes subsequently. Moreover, the injuries found on the girl Sarada render the story of theft highly improbable. If the culprit had really intended to commit theft it is unlikely that they would have caused scratch marks on her arm and thigh. Considering the status of the Petitioner, the absence of any stolen property in his possession, the injuries on Sarada and the fact that Madan Mohans family was not unknown to the Petitioner from before I would, in disagreement with the two lower courts, hold that even if the entry of the Petitioner into the dwelling house of Madan Mohan was established, it was not further established that it was for the purpose of committing theft. The charge u/s 457 I.P.C. must therefore fail. 5. The next question is whether the Petitioner can be convicted of any other offence. The plea of the Petitioner was that on hearing the alarm he also ran inside the house of the Madan Mohan to search for the thief and that he was caught hold of by the inmates. This explanation mayor may not be true, but on the facts proved or admitted it is, not possible to hold him guilty of any offence other than the one he was charged with, as it is not open to a court to indulge in a surmise as to, what might possibly have been his motive in entering the dwelling house. This case is similar to the case reported in Sankanmn Boral v. State ILR 1956 Cutt 502, where I hold that if the object with which the entry into a dwelling house was effected, as specified in the charge, is not established and the admitted facts also do not establish that any other offence was disclosed, it will not be proper for a Court to indulge in surmises to find out if the entry was made for some other purpose and then to convict him on the basis of such surmises. It was also held in the aforesaid decision that it will not be proper for a. Court in such circumstances to say that the entry into the house was to cause annoyance to the inmates. It was also held in the aforesaid decision that it will not be proper for a. Court in such circumstances to say that the entry into the house was to cause annoyance to the inmates. Moreover, in the instant case the Petitioner was admittedly found concealed inside the latrine and therefore it will not be correct to say that his entry was for the purpose of causing annoyance to the inmates of Madan Mohans house. It seems to me that all the facts connected with the incident have not been fully or truly disclosed either by the Petitioner or by the prosecution. But once it is found that the charge u/s 457 I.P.C. was not established, it will not be proper for this Court to indulge in surmises and find him guilty of some other offence. I would therefore allow this revision petition, set aside the conviction and sentence and acquit the Petitioner. Revision allowed.. Final Result : Allowed