JUDGMENT : B.K. Behera, J. - The convict Bijaya Kumar Patnaik has made an application in this Court for an order u/s 427 of the Code of Criminal Procedure so that the sentences of imprisonment passed against him in C. R. Case Nos. 12 and 13 of 1983 by Mr. S. K. Panda, judicial Magistrate, First Class, Berhampur, and maintained by Mr. S. K. Patel, Additional Sessions Judge, Berhampur, in Jail Criminal Appeal No.,1 of 1985 ( 147 of 1984-GDC ) and Jail Criminal Appeal No. 2 of 1985 (148 of 1984-GDC) would run concurrently. In each of the two cases, he has been convicted under Sections 457 and 380 of the Indian Penal Code ('the Code', for short) and sentenced to undergo rigorous imprisonment for a period of two years in respect of both the offences which were to run concurrently and in addition, sentenced to pay a fine of Rs. 250/-for each of the two offences and in default of payment thereof, to undergo rigorous imprisonment for a period of two months. The convict seeks an order that the sentences of imprisonment passed in both the cases should run concurrently. While examining the records, it came to my notice that the orders of conviction recorded against the convict in both the cases were unfounded. 2. The co-accused Pradip Kumar Das had also been convicted in the aforesaid two cases and had been sentenced similarly and his Jail Criminal Appeal No. 128 of 1985 ( 145 of 1984-GDC) and Jail Criminal Appeal No. 129 of 1985 (146 of 1984-GDC) were pending. The learned appellate judge was directed to dispose of the appeals and transmit the records of the two appeals with the records of the trial Court for reference. Mr. P. K. Tripathy, Additional Sessions Judge, Berhampur, dismissed both the appeals preferred by the convict Pradip Kumar Das and transmitted the records to this Court. 3. After hearing Mr. Indrajit Ray, the learned Additional Government Advocate, four Criminal Revisions have been registered suo motu by this Court to examine the legality of the findings recorded by the trial and appellate Courts against the two convicts in the interests of justice. 4. I have heard Mr. Indrajit Ray, the learned Additional Government Advocate for the State and Mr. Sanjit Mohanty who has appeared on behalf of the convicts as amicus curiae. 5. 4. I have heard Mr. Indrajit Ray, the learned Additional Government Advocate for the State and Mr. Sanjit Mohanty who has appeared on behalf of the convicts as amicus curiae. 5. in C. R. Case No. 12 of 1983, both the convicts had been charged u/s 457 of the Code for commission of house-breaking by night by entering into the dwelling house of Pradeep Kumar Das (P. W. 2) during the night of the 8th/9th January, 1983, at Bijipur in the city of Berhampur, for committing theft and they had been charged u/s 380 of the Code for commission of theft from the dwelling house of P. W. 2. In G. R. Case No. 13 of 1983, both the convicts stood charged u/s 457 of the Code for commission of house-breaking by entering into the dwelling house of R. K. Patajoshi (P. W. 1) during the same night at the same place for commission of theft and u/s 380 of the Code for committing theft from the dwelling house of P. W. 1. On a consideration of the evidence in both the cases, the trial and appellate Courts have found that both the charges had been established. 6. The convicts have not preferred revisions in this Court against the judgments and orders of conviction recorded against them 7. To bring home a charge u/s 457 of the Code, the prosecution must establish that the convicts were guilty of committing lurking house-trespass or house-breaking by night in order to commit an offence punishable with imprisonment. The orders of conviction in both the cases against the convicts u/s 457 of the Code are not based on any evidence and are legally misconceived. No question had been put to any of the convicts in both the cases with regard to the commission of the offence of house-breaking when they were examined u/s 313 of the Code of Criminal Procedure evidently because there was no evidence in support of this charge, but without proper application of minds, the learned Judicial Magistrate and the learned Additional Sessions Judges have convicted both of them u/s 457 of the Code. 8. 8. As for the other offence punishable u/s 380 of the Code, all that the prosecution had established was that at the odd hour in the night, both the convicts had been detected while they had kept themselves concealed inside the premises of a college building and some stolen articles were found near about that place. No recovery of any incriminating article had been made from the person or possession of any of the convicts. The only circumstance against them just mentioned regarding their movements may give rise to a strong suspicion against them, but suspicion, however grave, cannot take the place of proof. That apart, a criminal trial cannot be equated with a roving enquiry into the conduct of an accused. Only that conduct of an accused which destroys the presumption of his innocence can be considered against him. If one is morally convinced about the complicity of the two convicts because they were found at an odd time during the night near about the place of occurrence, moral conviction cannot take the place of legal proof. In the absence of legal proof of the crime, there can be no legal criminality. 9. For the foregoing reasons, it would be just, legal and proper to set aside the orders of conviction and sentences passed against the two convicts in exercise of the revisional jurisdiction of this Court. This would be the proper course to be adopted in the interests of justice, as very fairly submitted by the learned Additional Government Advocate. 10. In the result, the orders of conviction and sentences passed against the two convicts, namely, Bijaya Kumar Patnaik and Pradip Kumar Das, in G. R. Case Nos. 12 and 13 of 1983 which have been maintained by the appellate Courts are hereby set aside. The two convicts be set at liberty forthwith unless otherwise required to be detained. As the orders of conviction and sentences passed in both the cases have been set aside, no order need be passed in the Jail Criminal Miscellaneous Case instituted by the convict Bijaya Kumar Patnaik for an order u/s 427 of the Code of Criminal Procedure. The four Criminal Revisions and the Jail Criminal Miscellaneous Case are accordingly disposed of. Final Result : Allowed