JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the judgment of the First Additional Sessions Judge, Berhampur in Criminal Appeal No. 60 of 1983 confirming the order of conviction passed by the Chief Judicial Magistrate, Berhampur, convicting the Petitioner u/s 456, I.P.C., while reducing the sentence imposed on him to rigorous imprisonment for one month. 2. The gist of the prosecution case is that on the night of 2.11.1981 at about 2.30 A.M., on hearing some unusual sounds Coming from the informant's garage, the informant and his brother went and opened the door of the garage, when they found the accused-Petitioner concealing himself under the car kept inside, and then the Petitioner was brought out and was subsequently handed over to the police. On the basis of the F.I.R. lodged by the informant (P.W. 1) tile police investigated into the case and submitted charge-sheet u/s 457, I.P.C. against the Petitioner. The trial Court convicted the Petitioner u/s 456, I.P.C. and the conviction was upheld by the appellate Court and hence the present revision is filed. 3. The plea of the accused-Petitioner, as disclosed from his evidence as D.W. 1, is that on the relevant night, at about 10 P.M., the informant's Pujari Jateswar Panigrahi came to his house and told him that the informant (P.W. 1) was calling him, when he (the accused) went to the house of the informant and there as the informant questioned him as to why he was misbehaving with his daughter, he told him that he was not misbehaving with her but it was she, who was calling him by sending letters, and that on hearing the accused stating so the informant became angry and assaulted him and immediately contacted the police over phone and thereafter handed him over to the police. The accused had filed into the Court, the letters said to have been written by the informants daughter. 4. The prosecution in all examined four witnesses to prove its case. P.W. 1 is the informant. P.W. 2 is a cook in the house of P.W. 1, P.Ws. 3 and 4 are police officers. The trial Court, on a consideration of the evidence came to the finding that the prosecution case that the Petitioner had entered the garrage of the informant with the intention of committing theft is not acceptable. P.W. 1 is the informant. P.W. 2 is a cook in the house of P.W. 1, P.Ws. 3 and 4 are police officers. The trial Court, on a consideration of the evidence came to the finding that the prosecution case that the Petitioner had entered the garrage of the informant with the intention of committing theft is not acceptable. The appellate Court also had accepted this finding of the trial Court. But all the same, both the Courts below, on the basis of the finding that the Petitioner was found in the informant's garage at the odd hour of the night, held that as no explanation was offered by the accused regarding his presence in the garage, it can be safely presumed that the Petitioner was present there with the intention of committing some other offence. For coming to that finding both the Courts below have assumed that the accused had pleaded that he entered the garage of the informant at that unusual hour of the night at the invitation of the informant's daughter. 5. The evidence of accused as D.W. 1 shows that on the relevant night, the informant, on the erroneous assumption that the accused was misbehaving with his daughter called him to his house through his Pujari for chastising him and accordingly he went and met the informant on that night at about 10 P.M. The accused had categorically stated on oath that he did not enter the garage of the informant nor he was arrested from the garage. In view of the above positive evidence of the accused, it is really surprising as to how both the Courts below have held that on his own admission, the accused was found in the garage as he pleaded that he went to the informant's garage on being invited by the informant's daughter. It is on the erroneous hypothesis that the accused had admitted his presence in the garage at the odd hour of the night, both the Courts below have arrived at the wrong conclusion that it was for the accused to explain his presence at the odd hour of the night in the garage. 6. Both the Courts below have wrongly assumed that the plea of the accused was that he went to the informant's garage on being invited by the informant's daughter, though that was not his plea. 6. Both the Courts below have wrongly assumed that the plea of the accused was that he went to the informant's garage on being invited by the informant's daughter, though that was not his plea. Likewise, the trial Court was not correct, when it observed that there is no evidence that the informant had a daughter, though P.W. 2 deposed that the informant had two daughters. Thus both the Courts below have committed serious errors of record to the prejudice of the accused. In his cross-examination, P.W. 1 admitted that the house of the accused was at a distance of 50 yards from his house and he know the accused earlier. The above admission contradicts the recitals in the F.I.R. wherein he made an attempt to show as if the accused was a stranger to him and this is a significant circumstance in favour of the accused. The prosecution, through the evidence of P.Ws. 1 and 2, the only witnesses to the occurrence, has evidently come forward with a false charge of theft. Hence, it is difficult to place any reliance on the evidence of P.Ws. 1 and 2 that on the relevant night' the accused was found by them in the garage at 2 A.M. in the night. From the evidence of P.W.s. 1 and 2, it is clear that the prosecution is not placing before the Court a true and real picture of the incident and on that score alone, the accused is entitled to an acquittal. 7. The learned Counsel for the Petitioner relied on Sankarsan Bairal v. The State Vol. XXII (1956) C.L.T. 475 wherein it was held that to sustain a- charge u/s 456, I.P.C. a Court must on the facts found, come to a definite inference as to what was the particular intention with which the entry was effected The learned Counsel for the Petitioner cited another recent decision of this Court in Bhawani Shankar Nath Vs. State of Orissa, wherein the above decision of Sankarsan Boral v. The State, was referred to and relied on, and the above quoted proposition of law and reiterated. Both the Courts below have held that the alleged entry into the informant's garage was not made for the purpose of committing theft as specified in the charge. Neither of the Courts have come to a finding that such entry was made with any particular intention. Both the Courts below have held that the alleged entry into the informant's garage was not made for the purpose of committing theft as specified in the charge. Neither of the Courts have come to a finding that such entry was made with any particular intention. The finding of both the Courts below is that a presumption can be drawn against the accused that he made his entry with intent to commit some offence and on the basis of that finding they held the accused guilty u/s 456, I.P.C., Relying on the above referred two decisions of this Court, I hold that such a finding will not suffice to sustain a charge u/s 456, I.P.C. and, therefore, the accused-Petitioner is entitled to an acquittal thereunder. 8. In the result, in any view of the matter the orders of conviction and sentence passed against the Petitioner by the Courts below are liable to be set aside and accordingly the same are hereby set aside and the revision is allowed. Final Result : Allowed