Judgment 1. The petitioner was convicted under S. 380 read with S. 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/-, in default to undergo further rigorous imprisonment for three months by the trial Court. On appeal the Additional Sessions Judge, second Court, Bhagalpur has confirmed the conviction and sentence against him. Three more persons were tried along with the petitioner. Two of them were acquitted by the trial Court. The third Abdul Karim convicted by the trial Court along with the petitioner did not prefer any appeal before the Sessions Judge. 2. The prosecution case, briefly, stated was that on the 30th July 1961, at about 8.30 p. m. the four accused in furtherance of the common intention of all of them committed theft of cement from the godown of the Unified Minor Irrigation Department in the town of Bhagalpur, and the petitioner who is a tandem driver, according to the prosecution case, had gone to the place of occurrence with his tandem for carrying away the bags of stolen cement and while the bags of cement were being taken out of the godown and being placed on the tandem of the petitioner, some of the prosecution witnesses arrived there who arrested the petitioner and Abdul Karim. The other two persons who were put on trial, but were acquitted, were Sudhir Chandra Das, Store keeper of the godown and Ram Prasad Sah, Night Guard. 3. The defence of the petitioner was that he was innocent and had been engaged by an employee of the department for carrying the cement from the godown to another place. 4. Mr. Prem Shankar Sahay appearing for the petitioner contended that as soon as the petitioner was caught by P. W. 8, he informed those who were present there that he had come there under the direction of Shudhir Babu, i. e., the Store-keeper, and in the circumstances his conviction by the Courts below merely on the ground that he attempted to run away, which fact also is not supported by the evidence on the record, is illegal. It was admitted by P. W. 1 in his evidence that on enquiry the petitioner told him that he had come there under the direction of Sudhir Babu, and that he was innocent. Mr. It was admitted by P. W. 1 in his evidence that on enquiry the petitioner told him that he had come there under the direction of Sudhir Babu, and that he was innocent. Mr. Sahay is also right in contending that the Court below were not correct in observing that the petitioner attempted to run away when challenged. The Courts below have referred, in the connection to the evidence of P. Ws. 1 and 8. In examination-in-chief which was recorded after remand P. W. 1 stated "when the Tumtumwala wanted to go away, he was caught hold of by the jeep driver". The witness stated in his examination-in chief only about the running away of the other accused Abdul Karim. In his cross-examination, the witness made it further clear by saying only the coolie had fled away and none else". P. W. 8 in his evidence did not state anything about fleeing away of the petitioner. Further, even if, the petitioner would have attempted to run away, it cannot be said that he too had shared the common intention of committing theft with others, because he might have done so after having come to know that other accused had asked him to be there for doing some illegal act. The circumstance of running away, even if, there would have been the evidence to support the same, cannot be used against the petitioner, because he was not asked to explain it in his examination under S. 342 of the Criminal P. C. The learned Additional Sessions Judge in his order has made certain observations showing that he was not quite happy with the order of acquittal of Ram Prasad, the Night Guard. Unless really Sudhir Chandra Das would have asked the petitioner to be there, appears no reason why he would have made a statement then and there that he was there as asked by Sudhir Chandra Das. There might not have been sufficient evidence for conviction of Sudhir Chandra Das, but at the same time it cannot be said that the aforesaid statement of the petitioner was not true. If the petitioner was really asked by the store keeper of the godown to carry some bags of cement, it cannot be held that he shared the common intention along with the other accused for committing the theft. At last he is entitled to the benefit of doubt. 5. If the petitioner was really asked by the store keeper of the godown to carry some bags of cement, it cannot be held that he shared the common intention along with the other accused for committing the theft. At last he is entitled to the benefit of doubt. 5. In the result the petition is allowed and the order of conviction passed against the petitioner is get aside.