JUDGMENT : ( 1. ) THIS is a Jail Revision, preferred against the judgment of the sessions Judge, Guna in Jail Appeal No. 128 of 1978, which was filed against the order of the Judicial Magistrate, 1st Class, Mungavali in Case No. 434 of 1976 in which he convicted the applicant under section 457 read with section 75 and section 380 read with section 75, Indian Penal Code and sentenced him for three years rigorous imprisonment under each count and also ordered that the sentences will be suffered one after another. ( 2. ) THE prosecution case, in short, is that Mohanlal (P. W. 2) is a resident of village Keshopur. In between the night of 21-6-1976 and 22-6-1976, mohanlal (P. W. 2) tied his ox in his court-yard and he slept in his house. When he saw in the morning, he saw that his court yard was open and his ox which was tied by him, was missing. He searched for it for a day or so and when he did not get the ox, he reported the matter on 24-6-1976 to Thana, piprai. The report is Ex. P/4. The accused Samrath Singh and Lalla sold the ox for Rs. 420 to one Gorelal (P. W. 7 ). Subsequently, it was sold to Lakhan (P. W. 3), a resident of Jadia for Rs. 550 by Gorelal (P. W. 7 ). The ox was seized and recovered from Lakhan (P. W. 3 ). There was an identification parade and in the identification parade Mohanlal (P. W. 2) identified the ox correctly. Therefore, against both the accused challan under sections 457 and 380, Indian Penal Code was filed. At the time of the charge, there was already a charge that accused Samrath Singh was already convicted under section 411, Indian Penal Code by the Additional Sessions Judge, Guna. The accused denied the guilt. They also denied that they sold the ox to Gorelal (P W. 7 ). They also denied that the ox was recovered at the instance of and on the information given by them. The trial Court framed only one point for consideration and that is whether the ox belonging to Mohanlal (P W. 2) was stolen or not. To come an affirmative conclusion to this question, the Court has relied on the statement of Mohanlal (P. W. 2) and the report Ex. P/4. The trial Court framed only one point for consideration and that is whether the ox belonging to Mohanlal (P W. 2) was stolen or not. To come an affirmative conclusion to this question, the Court has relied on the statement of Mohanlal (P. W. 2) and the report Ex. P/4. It has placed its reliance on the identification parade and has come to the conclusion that Mohanlal (P. W. 2) has correctly identified the ox. Therefore, it belongs to him and because of the report, it came to the conclusion also that the accused have committed the offence of which they are charged. It has believed the statements of Sundarlal (P. W. 1) and Mohanlal (P. W. 2 ). Therefore, the trial Court has convicted the accused. The appeal filed by them was dismissed. This is a revision filed by Samrathsingh. ( 3. ) LEARNED counsel appearing on behalf of the applicant Shri Akhil kumar Shrivastava was appointed as amicus curiae to act in the case. After hearing his arguments, I must mention here that he has argued very ably and put before me all the possible arguments in the case. ( 4. ) THE first submission he made before me is that no offence is proved against Samrath Singh either under section 380, Indian Penal Code or section 457, Indian Penal Code. Under section 457, Indian Penal Code it is essential to prove by some evidence that the accused has committed a house trespass by night or house breaking by night. He has pointed out to me that there is no iota of evidence to show that the accused Samrath Singh was even near to the house which is alleged to have been trespassed. Therefore, offence under section 457, Indian Penal Code cannot be held to be proved. It is held in Deochand and others v. State of M. P. that if there is no evidence to connect the applicant with the preparation of the offence of house-breaking and theft, except recovery of stolen property, then he cannot be convicted under sections 457 and 380, Indian Penal Code. But, it may be possible that he may be convicted under section 411, Indian Penal Code. The reason given in the case is as under: "the point for consideration is what offence has been committed by the applicants except applicant No. 4 Ramchand. But, it may be possible that he may be convicted under section 411, Indian Penal Code. The reason given in the case is as under: "the point for consideration is what offence has been committed by the applicants except applicant No. 4 Ramchand. There is no direct evidence to connect the appellants with the commission of house breaking and theft. The stolen property was recovered from different applicants in piece meal. A particular number of persons was not required for committing house breaking and theft. It is, therefore, likely that the house breaking was committed by one or two persons or even more. When there is no other circumstantial evidence to connect the applicants with the perpetration of the offence of house breaking and theft, it would be rather safe to hold the applicants guilty as receiver of stolen property on presumption under section 114, illustration (a) of the Evidence Act " Relying on this case, I can safely say that the conviction and sentence of the applicant under section 457, Indian Penal Code cannot be maintained and, therefore, I set aside the conviction passed by the trial Court which is confirmed by the appellate Court. ( 5. ) NOW the next point I have to decide is whether any offence under section 380, Indian Penal Code is proved against the applicant Samrath Singh. The learned counsel has again submitted before me that this offence is also not proved against the applicant. The first submission he has made before me is that in the first information report, the description of the bull is altogether different and Lakhan (P. W. 3) says in his statement that the bull which was purchased was a white one. While Asharam (P. W. 6) says that it was red and white. But Gorela) (P. W. 7) says that it was black and white. Therefore, he submits before me that it cannot be said that the same bull passed from hand to hand while it is alleged to have been sold or the bull which belonged to Mohanlal (P. W. 2) was stolen. ( 6. ) THE next point he has urged is that in identification, it has come in evidence that there were seven bulls, but the identification memo says that there were only six. ( 6. ) THE next point he has urged is that in identification, it has come in evidence that there were seven bulls, but the identification memo says that there were only six. It also shows that no bull was mixed which was of the same colour as that of the bull which is alleged to have been stolen. ( 7. ) THE third point he has urged before me is that the place as to where the bull was sold is also different in the statements of different witnesses. Pachua (P. W. 5) has said that the bull was sold near the railway station, while Asharam (P. W. 6) has stated in his statement that it was sold near the jail boundary, while Gorelal (P. W. 7) gives an altogether different place. Then, one more statement he made before me is that unless it is proved that the bull was stolen by the applicant, how can he be connected with the commission of offence. Neither the bull was seized from him, nor it was recovered from his possession. Even assuming that it was recovered at his instance, that will not prove that he was in possession of the property and unless he is in possession of the stolen property, no presumption under section 114 of the Evidence act arises. He has also questioned the propriety as to why the man from whom the ox was recovered has not been made an accused. Certainly, he should have been liable under section 411, Indian Penal Code if it is held that the bull was a stolen property. Whether he was a bona fide purchaser, or not, that would have been decided by the Court and not by the Police. Police had no right to choose between the persons who are connected with the offence. 7-A. Lastly, he has submitted that Nirbhaya and Pannalal who are the material witnesses are not examined. I do not find much importance in non examination of Nirbhay and Pannalal because it is not necessary to examine all the witnesses. Then, he has referred to me to a small mistake committed by the trial Court in which the trial Court has mentioned that there were three oxen, but that is a mistake of writing and not a material one. Therefore, much importance cannot be given to that slip. Then, he has referred to me to a small mistake committed by the trial Court in which the trial Court has mentioned that there were three oxen, but that is a mistake of writing and not a material one. Therefore, much importance cannot be given to that slip. But taking into consideration the above facts and the objections raised, I cannot but come to the conclusion that offence under section 380, Indian Penal Code is not brought home against the applicant by the prosecution. ( 8. ) THE result will be that the conviction under section 380, Indian Penal code, also I cannot maintain. Therefore, the conviction and sentence passed under section 380, Indian Penal Code by the trial Court and affirmed by the trial Court I will have to set aside and I set them aside. ( 9. ) WHEN the conviction under sections 380 and 457, Indian Penal Code is set aside, naturally, I will have to set aside the conviction under section 75, indian Penal Code also and I do it accordingly. ( 10. ) THE result is that this revision is allowed and the conviction and sentence passed by the trial Court under sections 380/75, Indian Penal Code and 457/75, Indian Penal Code are set aside. The applicant be set at liberty if he is not required in other case. ( 11. ) SHRI Akhil Kumar Shrivastava, learned counsel appeared in this case as amicus curiae. I am very much thankful to him for the valuable assistance given by him in this case and for his able arguments. Revision allowed.