JUDGMENT S.S. Dani, J. - The order dated 22.2.1985 passed by the Judicial Magistrate, First Class, Beed in Criminal Case No. 89 of 1981, holding all the accused guilty for offences punishable under sections 380 and 457 of the Indian Penal Code and sentencing them to imprisonment and the order dated 7.9. 1989 passed by the Sessions Judge, Beed in Criminal Appeal No. 19 of 1985 confirming the conviction and sentence are being challenged in the present revision application by original accused Nos. 1 to 5. 2. P.W. 1 complainant Ramkrishna is the husband of P.W. 3 Suman. The couple was residing in their own house in a locality known as Shivaji Colony at Beed. The incident is alleged to have taken place at midnight of 31st May, 1981. The complainant and his wife got up from the sleep at about 3 a.m. so as to attend to their ailing son and noticed that the theft was committed in the house. It was found that the ornaments and the cash were stolen from the trunk. The stolen property included the cash amount, golden and silver ring and chain, a nose ring and two wrist watches. The complainant P.W. 1 Ramkrishna immediately reached the police station and lodged his complaint in the early morning of 31.5.1981. The investigating officer registered the offence and drew the spot panchanama Ext. 17. The investigating officer along with two panchas, including P.W. 4 Bhimrao then reached the place known as Khajana well and took the search of two huts in the presence of the panchas. Accused Nos. 1 to 4 were found in one of the huts and in the presence of the panchas; under the panchanama Ext. 25, certain articles were recovered and seized from the said hut. Similarly, another hut was inspected and searched and accused No. 5 was found present in the said hut and certain more articles were also recovered and seized from the said hut under a different panchanama Ext. 26. All the above articles were then brought to the police station on 4.6.1981 in the presence of two panchas including P.W. 2 Sahebrao. The complainant and his wife identified all these articles as belonging to them. The identification was done under the panchanama Ext. 22. 26. All the above articles were then brought to the police station on 4.6.1981 in the presence of two panchas including P.W. 2 Sahebrao. The complainant and his wife identified all these articles as belonging to them. The identification was done under the panchanama Ext. 22. All the accused came to be arrested on the spot and after completion of the necessary investigation they came to be charge-sheeted on 21.7.1981 for the offences punishable under sections 380 and 457 of Indian Penal Code. 3. The Judicial Magistrate, First Class, Beed in Criminal Case No. 89 of 1981 accepted the evidence of the prosecution and held it sufficient to inspire the confidence. The trial Magistrate. therefore, held all these 5 accused guilty for the alleged offences. By an order dated 22.2.1985 all the accused were sentenced to suffer rigorous imprisonment for one year and a fine of Rs. 100/ - each, in default, simple imprisonment for 15 days under section 380 and to suffer rigorous imprisonment for two years and a fine of Rs. 200/ - each, in default, simple imprisonment for one month for the offences punishable under section 457, Indian Penal Code. By the same order, the substantive sentences were directed to run concurrently, and the muddemal property, i.e., the articles were ordered to be returned to the complainant - Ramkrishna. 4. All the five accused then carried the matter in Criminal Appeal No. 19 of 1985 which came to be dismissed by an order dated 7.9.1989 and the conviction and sentence came to be confirmed. It is this order of conviction and sentence that is being challenged in the present revision application by all the five accused. 5. It is not in dispute that there is no evidence of any eye-witness in respect of the involvement of any of these accused in the commission of the alleged offences. The prosecution has adduced the evidence of the complainant and his wife at Exts 19 and 23 and they are, admittedly, not the eyewitnesses to the incident. According to their evidence, they came to know about the fact of theft in the house when they got up from the sleep to attend to their ailing son. The prosecution has adduced the evidence of the complainant and his wife at Exts 19 and 23 and they are, admittedly, not the eyewitnesses to the incident. According to their evidence, they came to know about the fact of theft in the house when they got up from the sleep to attend to their ailing son. P.W. 2 Sahebrao and P.W. 4 Bhimrao are the panch witnesses in whose presence these accused have been arrested and the huts were searched and the muddamal articles were recorded and seized under the panchanama Exts. 25 and 26. It is, therefore, not in dispute that, there is no evidence of any of the prosecution witnesses to show that these accused either committed the theft or committed house breaking as alleged. As stated above all the five accused persons have been charged for having committed an offence of lurking house-tresspass by night or house breaking by night in order to commit the offence of theft under section 457, Indian Penal Code. The only evidence that has been collected against these accused is in the shape of recovery and seizure of certain stolen articles from the possession of the accused. The evidence against the accused is also in respect of their arrest immediately after the incident and alongwith the looted property. However, this cannot be said that a sufficient evidence or, as a matter of fact, any evidence so as to prove the alleged offence of house trespass or house breaking under section 457, Indian Penal Code. It win have to be proved by the prosecution that, these accused or anyone of them committed lurking house trespass or house breaking by night as alleged so as to have a conviction under section 457, Indian Penal Code. The mere recovery of stolen articles from the possession of these accused would be insufficient to prove the alleged offence under section 457, Indian Penal Code. The trial Magistrate and the Sessions Judge, therefore, were in error in holding the alleged offence under section 457, Indian Penal Code, as duly proved against all the accused. All the accused, therefore, would be entitled to acquittal so far as this charge under section 457, Indian Penal Code is concerned. 6. The trial Magistrate and the Sessions Judge, therefore, were in error in holding the alleged offence under section 457, Indian Penal Code, as duly proved against all the accused. All the accused, therefore, would be entitled to acquittal so far as this charge under section 457, Indian Penal Code is concerned. 6. So far as the offence under section 380, Indian Penal Code, is concerned, the evidence in the nature of a seizure of the stolen articles from the possession of all these accused has been rightly held as sufficient to prove the guilt. It is to be noted that, the complainant P.W. 1 Ramkrishna lodged his complaint on 31.5.1981 as per Ext. 20 and on 2.6.1981 all these five accused have been accosted and arrested under the different panchanamas. P.W. 4 Bhimrao has acted as a Panch in respect of recovery and seizure of stolen article from the possession of these accused under two seizure Panchanamas Exts. 25 and 26. It has been proved by the evidence of the said panchanamas and the specific recitals of the seizure panchanamas that, the stolen articles were found in possession of these accused and it came to be duly recovered and seized. Further, it may be noted that, under a panchanamas Ext. 22 in the presence of P.W. 2 Sahebrao, the complaint-Ramkrishna and his wife Suman identified all these articles as belonging to them and which arc alleged to have been stolen. There is, therefore, sufficient evidence in the shape of the recovery of the stolen articles immediately after the incident of theft. 7. It has been rightly observed by both the Courts below that, none of these accused has accounted for any of these stolen articles nor any one of them has claimed the articles. In view of the identification of these articles by the complainant and his wife as their's and as the articles have been recovered and seized from the possession of these accused persons immediately after the incident, both the Courts were right and justified in holding that, the alleged offence under section 380, Indian Penal Code, was duly proved against all these accused persons. It may also be noted that, it is not even suggested to any of these witnesses as to why they were deposing falsely against any of the accuse persons. It may also be noted that, it is not even suggested to any of these witnesses as to why they were deposing falsely against any of the accuse persons. It is submitted on behalf of the appellants that, the prosecution has resiled from adducing the evidence of the Investigating officer and as such, there has been a prejudice caused to these accused and so they are entitled to acquittal. The submission, however, cannot be accepted. It may be noted that, there was no contradiction brought on record which requires the evidence of the Investigating Officer for its proof nor the evidence of the panchas has been shattered in the cross-examination. P.W. 2 Sahebrao and P.W. 4 Bhimrao were the independent witnesses, who have proved the recovery and seizure of the stolen articles from the possession of these accused and the evidence of these two witnesses has been rightly held as sufficient to inspire the confidence. As such, adducing the evidence of Investigating Officer in respect of recovery and seizure of the stolen articles from the possession of these accused would have been a mere formality and repetition of the evidence which was already available and which has been considered as sufficient to prove the alleged offences of theft against all the accused. Both the Courts, therefore, cannot be said to have erred in holding all these five accused persons as guilty under section 380, Indian Penal Code. The order of conviction recorded by the Judicial Magistrate under this section and subsequently confirmed by the Session Judge, Beed, therefore, do not call for any interference. 8. Coming to the question of sentence, the case of accused No. 5, in my opinion, calls for further sympathetic consideration, inasmuch as the appellant-accused No. 5 is a lady and is 63 years of age. It is not in dispute that all these 5 accused persons have undergone the sentence for a period of two months. Considering these facts, I am of the opinion that, it would meet the ends of justice if the accused No. 5 is ordered to suffer the sentence already undergone. 9. So far as the other accused are concerned, however, no further leniency can be shown inasmuch as, each of them has only been sentenced to suffer rigorous imprisonment for one year for this offence. 9. So far as the other accused are concerned, however, no further leniency can be shown inasmuch as, each of them has only been sentenced to suffer rigorous imprisonment for one year for this offence. By no stretch of imagination the imposition of sentence of one year for an offence punishable under section 380 of the Indian Penal Code can be said to be severe and excessive. The sentence of one year for the offence in the present case also does not call for any interference considering the number and nature of the articles alleged to have been stolen from the house of the complainant and his wife, The order of sentence in respect of accused Nos. 1 to 4 to suffer rigorous imprisonment for one year and to pay a fine of Rs. 100/each in default, simple imprisonment for 15 days is, therefore, proper and called for no interference. 10. In the result, Criminal Revision Application No. 214 of 1989 partly succeeds. The orders of conviction and sentence of both the Courts against all the five accused under section 457 of the Indian Penal Code is hereby set aside and quashed and all the five accused stand acquitted of the offence under section 457, Indian Penal Code. The order of conviction of both the Courts for an offence punishable under section 380 - Indian Penal Code, against all these accused is confirmed. The order of sentence of both the Courts to suffer rigorous imprisonment for one year and a fine of Rs. 100/- each, in default, simple imprisonment for 15 days for an offence under section 380, Indian Penal Code, is also confirmed so far as the accused No. 1 to 4 are concerned. The order of sentence in respect of accused No. 5 Sow Yamunabai Deorao Shinde is modified and it is hereby ordered that, the accused No. 5 Sow Yemunabai Deorao Shinde shall suffer the sentence already undergone. Accused No.5, there fore, need not suffer to bail. Accused Nos. 1 to 4 to surrender to their bail so as the undergo the remaining sentence. The pre-trial period of detention of accused Nos. 1 to 4 shall be adjusted towards the substantive sentence pronounced in this case C under section 42B, Criminal Procedure Code. Rule made partly absolute. Appeal allowed partly.