JUDGMENT - J.M. GANDHI, J.:---This is an appeal against the judgment and order of conviction passed by the learned Presidency Magistrate, 27th Court, Mulund, Bombay. The accused has been convicted for offences punishable under sections 457 and 380 of the India Penal Code and is sentenced to undergo R.I. for 6 months for the offence punishable under section 380 of the Indian Penal Code. No separate sentence is passed for the offence punishable under section 457 of the Indian Penal Code. 2. It is alleged by the prosecution that there are certain huts behind Vitram Glass Factory at Vikhroli, and prosecution witnesses No. 1 Sappo Juman, prosecution witness No. 2 Sattar Nazir and prosecution witnesses are working in Vitram Glass Factory at Vikhroli. The prosecution originally charged the present appellant along with two other persons viz. Gafoor and Islam Noorbux under sections 457 and 380. On 22nd November, 1973 the three accused persons were charged as follows : "That you on 10th day of August 1973 about 9.30 p.m. at Bhandup committed house-breaking by night by entering into the building belonging to complainant Sapoo Juman and used as a human dwelling after the hour of sunset before the hour of sunrise, in Order to the commission of certain offences punishable with imprisonment, to wit the offence of theft of cash and silver ornaments, and that you hereby committed an offence punishable under section 457 of the I.P.C. Secondly : That you on same, day, time and place you committed in the said building used as a human dwelling the theft of silver ornaments and cash collectively valued at Rs. 592/- in the possession of said complainant and thereby committed an offence punishable under section 380 of the I.P.C." The prosecution examined the first informant Sapoo Juman and after his examination-in-chief was over, the Police Prosecutor on behalf of the State gave an application to amend the charge and pursuant to that application of the Police prosecutor, the charge is altered on 6th December, 1973. Charges were framed only against the present appellant alone and they were as follows :--- "That you on 10th day of August, 1973 about 9.30 p.m. at Bhandup committed house-breaking by night by entering into the building belonging to complainant Sattar Nazirkhan and used as a human dwelling after the hour of sunset before the hour of sunrise, in order to the commission of certain offences punishable with imprisonment, to wit the offence of theft of cash and silver ornaments, and that you hereby committed an offence punishable under section 457 of the I.P.C. Secondly : That you on same, day, time and place you committed in the said building used as a human dwelling the theft of silver ornaments and cash collectively valued at Rs. 592/- in the possession of said complainant and thereby committed an offence punishable under section 380 of the I.P.C." Sapoo Juman in his evidence-in-chief has said, on 10th August, 1973, he went to the Vitram and was working in 3-30 shift, that he was returning from the factory at about 9.30 p.m. and while he was returning he saw two persons standing in front of the hut of Sattar Nazirkhan (P.W. 2). He mentions the names of these two persons as Gafoor and Islam. He also states that his hut and hut of Sattar are adjacent to each other. He shouted for the wife of Sattar and asked as to who was standing in front of her hut. He further deposed that on hearing his shouts, Gafoor and Islam started running. He chased them as he got suspicious. He shouted "thief thief". One Din Mohamed i.e. P.W. 3 also ran after them, but Gafoor and Islam could not be caught and could not be traced thereafter. When Sapoo Juman and Din Mohamed were returning to their huts they saw the accused coming out of the hut of Sattar Nazir Khan. On seeing them, the accused started running and fell on a ditch. Din Mohamed caught him and brought him in front of the hut of Sattar. They found that one of the planks, which was part of the wall of Sattars hut, was broken. On seeing them, the accused started running and fell on a ditch. Din Mohamed caught him and brought him in front of the hut of Sattar. They found that one of the planks, which was part of the wall of Sattars hut, was broken. It is deposed by him that thereafter Sattars wife went inside the hut and reported that theft of articles had occurred from her hut as the trunk in the hut lying at the place where the plank was broken, was lying open Police were contacted, came there and arrested the accused. Sapoo Jumans first information was recorded. The accused, who was not represented by any lawyer, did not cross-examine the witness, but only two suggestions were made to the witness. In cross-examination Sapoo Juman had replied as follows : "It is not true to say that I am deposing falsely. It is not true to say that we accosted accused by force." 4. (P.W. 2) Sattar Nazir Khan has deposed that he was serving in Vitram Glass Factory at Vikhroli. At 8.30 p.m. On 10th August, 1973 he was on duty for the third shift, that Sapoo Juman (P.W. 1) came to him in the factory at 9.30 p.m. informed him that they had accosted one person and that house breaking was committed at his hut. He went to his hut and found that a theft was committed and he had lost silver ornaments and cash of Rs. 514/- from his hut. There was no cross-examination at all of his witness. 5. (P.W. 3) Din Mohamed deposed that in August 1973 he was serving in Vitram Glass Factory and was residing behind the factory in a hut, that on 10th August, 1973 he was in his hut and was taking food, that he heard shouts, "thief thief" that he came out of the hut and when he came out he saw the accused running from in front of his hut. The accused fell in a ditch. He also saw Sapoo (P.W. 1) chasing the accused. He accosted the accused. Police came to the place and they handed over the accused to them. He then deposes about condition of Sattars hut the plank adjacent to the entrance door of Sattars hut was removed and the articles in his hut were spread in a disorderly State. 6. He also saw Sapoo (P.W. 1) chasing the accused. He accosted the accused. Police came to the place and they handed over the accused to them. He then deposes about condition of Sattars hut the plank adjacent to the entrance door of Sattars hut was removed and the articles in his hut were spread in a disorderly State. 6. (P.W. 4) S.D. Jadhav, Sub-Inspector, attached to Bhandpur Police Station deposed that on 10th August, 1973 he was on Station House duty from 6 p.m. to 8 a.m. on the following day, that about 1 a.m. on 11th August, 1973. Police Jamadar No. 45 came to the Police Station along with the accused, the complainant and witnesses. He recorded the F.I.R. of Sapoo Juman and statements of Sattar Nazir Khan and Din Mohamed. He visited the hut of Sattar Nazir Khan at about 11 a.m. and drew a panchanama with the help of panchas and after completing the investigation, he has put in charge sheet. The panchanama (Ex. C) was tendered by the Police Officer, but no panch was examined. 7. The accused in his statement stated that he did not know anything of any theft having been committed at the hut of Sattar and ornaments and cash worth of Rs. 550/- had been stolen at midnight. He further stated that he did not know if latch of the door was open and that he did not know if Gafoor and Islam were standing near Sattars hut. He stated that it was not true to say that he ran from the hut of Sattar as alleged. He further stated that he never ran from the hut of Sattar, nor did he fell in a ditch. He stated that Sattar and Din Mohmed were on inimical terms with him and a complaint of assault against them was filed in Vikhroli Court. He did not want to examine any defence witness. 8. On this evidence, the learned Presidency Magistrate has convicted the accused under sections 457 and 380 of the Indian Penal Code. 9. Even though the case of the prosecution is that the accused was caught red-handed while running away from the spot of the incident, no property had been traced to him nor was any property found on his person. On this evidence, the learned Presidency Magistrate has convicted the accused under sections 457 and 380 of the Indian Penal Code. 9. Even though the case of the prosecution is that the accused was caught red-handed while running away from the spot of the incident, no property had been traced to him nor was any property found on his person. It appears that as the accused was undefended and had not cross-examined the witness examined by the prosecution, the learned Presidency Magistrate failed to appreciate the intrinsic contradictions in the evidence of the two main important witnesses viz. Sapoo Juman and Din-Mohamed is contradictory to each other. According to Sapoo Juman, when he first saw, he saw two other persons viz. Gafoor and Islam standing out side the hut of Sattar Nazir and when he shouted "thief thief", Gafoor and Islam started running. He chased them and according to him Din Mohamed also ran after them, but they were not traced. According to him, after chasing those two persons when they returned back, i.e. himself and Din Mohamed, they found the present accused coming out of the hut of Sattar Nazir. It is Sapoo Jumans case that on seeing them, the accused started running and he fell in a ditch and that the accused was over powered both by himself and Din Mohamed. It is admitted that nothing was found on the person of the accused when he was caught. Now, if we turn to the evidence of Din Mohamed, Din Mohamed does not depose to anything about two persons who were found in front of the hut of Sattar nor does he depose to having heard a shout and chasing those two persons along with Sapoo Juman or they having failed to catch them, nor does he deposed that while they were returning, they saw the accused coming out of Sattar Nazirs hut. Thus, as far as the present accused is concerned, the evidence of Din Mohamed does not corroborate the evidence of Sapoo Juman, and as I have pointed out above, the accused was first charge-sheeted along with two others for having committed trespass at night in the hut of Sapoo Jumam, whereas the present accused in the final charge, which was framed against him, has been tried for having committed trespass at night in the house of Sattar. These two major contradictions are not properly appreciated by the learned Presidency Magistrate. It is true that the accused has not cross-examined any of the witnesses, but in the cross-examination of the first witness he has put to Sapoo Juman that he was deposing falsely and he has further put to him that he was accosted by force. No doubt, both these suggestions were denied by witness Sapoo Juman. In his statement under section 342, the accused has clarified his position and he has stated that he never heard any shouts, nor did he try to run, but as Sattar and Din Mohamed are on inimical terms with him, this false case has been filed. He also referred to a previous complaint filed against Sattar and Din Mohamed in the Vikhroli Court. On carefully examining the entire evidence on behalf of the prosecution, I do not think that the prosecution has established the necessary ingredients required to be established either under sections 457 or 380. Taking into consideration the peculiar circumstances of this case viz., though the accused is alleged to have been arrested while running away from the house where it is alleged, that he committed lurking house trespass and committed theft, nothing has been recovered from him the fact that these are all hutment dwellers and taking further into consideration that the evidence of Sattar also arises considerable doubt about the truth of the evidence of Sapoo Juman, because according to Sattar, Sapoo Juman went to the factory at about 9.30 p.m. and told him that one person who had committed house-breaking had been caught red-handed, taking into consideration the sequence of events, it is impossible that by 9.30 p.m. the accused was arrested and it is also not possible that Sapoo Juman would have gone to the factory and contacted Sattar and informed him about the accused being accosted. Taking into consideration the defence, which appears to be probable and reasonable, viz. that there seems to be some enmity existing between the parties and some complaint having already been filed against Sattar and Din Mohamed, on seeing some people near the hut the prosecution witnesses have chosen to falsely implicate the accused, I am of the opinion that the evidence does not create confidence and is so discrepant that the learned Presidency Magistrate was wrong in drawing an inferene of guilt against the accused. 10. 10. In the result, the conviction and the sentence passed against the accused by the learned Presidency Magistrate are set aside, and accused is directed to be set at liberty forth with. -----