JUDGMENT 1. - Petitioners Labhu Ram, Sohanlal and Birbal were convicted for offence under Section 457 IPC and sentenced to two years simple imprisonment with a fine of Rs. 100/- and in default to undergo one month's simple imprisonment. Similar sentence was passed against each of them for offence under Section 380 IPC. This judgment and sentence was passed by learned Munsif and Judicial Magistrate, Nohar on 27.7.1988. An appeal was preferred before learned Sessions Judge which was dismissed on 9.7.1991 and the conviction and sentences were confirmed. Aggrieved by this judgment of confirmation the petitioners have preferred this revision petition. 2. I have heard the learned counsel for the petitioners as well as learned Public Prosecutor at length and have gone through the record. 3. The settled law as laid down in State of Kerala v. Puttumana lllath Jathavedan Namboodiri etc., JT 1999(1) SC page 456 , is that in its revisional jurisdiction the High Court can call for the examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentences or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. Learned counsel for the petitioners pointed out salient features of this case to the effect that cement bags were not found in possession of the petitioners, that Juharmal who is alleged to have purchased the cement, is just like an accomplice, that there was no evidence that the petitioners might have been seen entering into the place where cement was stored, they are not named by the driver of the vehicle nor there is identification of the cement that it belonged to Rajasthan Canal Project. Therefore, according to him in this case miscarriage of justice has taken place and the petitioners have been erroneously convicted. 4. On the other hand, learned Public Prosecutor has tried to support the judgments of the two Courts below. 5. Briefly stated the case of the prosecution was that a colony of Rajasthan Canal Project was situated at Gandheli where godown of cement of the project was situated. It was alleged that on 1.1.1978 the roof of the godown was broken and theft of cement bags was committed. Type marks of some jeeps were found at the spot and the cement was also found spread outside the godown. It was also found that jeep went towards Nohar. Assistant Engineer of the Canal Project was informed on 2.1.1978 at 7.30 A.M. by Jai Kishan labourer and by overseer. It is alleged that there were 7743 cement bags stored in the store and its door was closed by filling in the bricks. 70 bags of cements were found near the place where some construction work by Jawahar Mai Rathi Thekedar was being done. Police, on report, registered a case under Secs. 457 and 380 IPC and after investigation submitted challan against the petitioners as well as some other accused persons. When charges were framed and read over to the petitioners they denied their indictment and claimed trial. Prosecution produced a number of witnesses. After closure of prosecution evidence accused petitioners were examined under Section 313 Cr.P.C. They did not produce any witness in defence. Learned Magistrate, after hearing both the parties, convicted and sentenced the accused petitioners as stated above. 6. There is no evidence that anybody might have seen the petitioners breaking open the roof of the store or entering into the store. PW-2 Bahadur Singh stated that he was the overseer incharge while Jai Kishan was a labourer. It is he who stored 7743 bags of cement in the store and had closed it. He was on leave from 22.11.1977 to 22.12.1977 and during this period the store incharge was Jai Kishan. When he returned from leave he did not take charge because he was busy in other work. It was on 2.1.1978 that he was informed by Jai Kishan that a theft had taken place. He was on leave from 22.11.1977 to 22.12.1977 and during this period the store incharge was Jai Kishan. When he returned from leave he did not take charge because he was busy in other work. It was on 2.1.1978 that he was informed by Jai Kishan that a theft had taken place. When he reached the store he found that there were foot prints of 4-5 persons and the roof of the store was broken from one side. Then he followed the foot steps on his motorcycle. He also stated that one Pyare Lal was earlier involved in a theft case of cement, therefore, he inquired from him who told that it were Labhu Ram, Sohanlal and Birbal who has taken the cement in Nohar Mandi. He searched of them but could not find. Then the report was lodged at police station. The witness has stated that he went to Nohar Mandi where he found two jeeps bearing No. RJL-4789 and PUK-9554 and also found come persons standing nearthem. They were Sriram and Ramkishan. They told that it were the petitioners who engaged the jeep and who sold cement to Jawahar Mai Rathi. This is all hearsay evidence led by the prosecution. However, PW-7 Juhar Mai Rathi was a thekedar who was carrying some, construction work relating to Krishi Upaj Mandi Samiti, Nohar. According to him the cement was supplied either from Krishi Upaj Mandi godown of from the godown of the Rajasthan Canal Project after payment of money or from the local dealers. On 18.12.1977 he was informed that cement could be available from some local businessman and he was some Birbal Ram. Then he purchased 12 bags of cement but he did not know as to who brought it. On 1.1.1978 Birbal brought 28 bags but the witness refused refused to take. On 2.1.1978 Birbal again came and took him to a place where Sohanlal and Laduram were present and where 39-40 bags of cement were lying. The witness refused to take. He has stated that he purchased cement from Sohanlal. Birbal and Laduram only twice on earlier occasion. It was purchased on 16.12.1977. There is no charge in relation to this purchase by the witness. The charge relates to the theft committed on 1.1.1978. The witness refused to take. He has stated that he purchased cement from Sohanlal. Birbal and Laduram only twice on earlier occasion. It was purchased on 16.12.1977. There is no charge in relation to this purchase by the witness. The charge relates to the theft committed on 1.1.1978. The witness has stated that the bags were lying in front of shop No. 21 and 22 as well as No. 31 and 33. So the prosecution was not able to prove that the cement was found in possession of the petitioners. The witness is such towards whom the needly of suspicion went during investigation and at one stage he was regarded as an accused and, therefore, he had moved an anticipatory bail application and was released on bail. So the argument of the learned counsel for the petitioners that the witness was an accomplice, has some force. His evidence has to be scan with great caution in order to connect the accused petitioners. It does not connect the petitioners with crime. 7. The most important feature of the case is that when the bags to Rajasthan Canal Project are supplied by cement factories they bear some specific marks. It may be stated that there is not evidence that cement bags which were lying on the road side had some such identification mark. So there is no recovery of the theft property either from the petitioners or at their instance neither does it have any identification mark. 8. Admittedly there is no evidence to the effect that anybody might have seen the petitioners entering into the tore or there is not evidence to comment their entry in the store. According to PW-2 Bahadur Singh two jeeps bearing No. RJL-4789 and PUK-9554 were used PW 9 Pehalwan Singh in the owner of Jeep No. PUK-9554. He stated that Labhuram and Sohanlal wanted to put cement bags in his jeep. He first refused but when it was informed that the cement bags in his jeep. He first refused but when it was informed that the cement bags were purchased the same were put in the jeep and brought to Nohar and placed outside a shop. He did not know these petitioners from before and could identify only because he as well as accused petitioners were coming to the Trial Court. He first refused but when it was informed that the cement bags were purchased the same were put in the jeep and brought to Nohar and placed outside a shop. He did not know these petitioners from before and could identify only because he as well as accused petitioners were coming to the Trial Court. No test identification parade was conducted nor there is any mark of identification on the bags which were found stored. The case of prosecution was that the cement was brought in the jeep of Ramkishan and Sriram. 9. Ram Kishan PW-12 has also been produced who told that he purchased a jeep from Pehalwan Singh and the some was used for bringing some bags of cement. According to Ram Kishan three jeeps were taken including his jeep but he does not say anything about Pehalwan Singh who says that it was he who brought cement in the jeep. However, when the case of the prosecution itself is that the jeep of Ram Kishan and Sriram were used, it is only Ram Kishan who is a material witness. He does say that even Pehalwan Singh had gone and the cement was brought and put outside a shop. The bags of the cement according to him were lying somewhere near a culvert in open from where they were brought. When the cement is not identifiable property and the bags might be bearing some identify mark and the same has not been disclosed during trial, it cannot be said that the cement which was found in front of the shop belonged to the Rajasthan Canal Project. Learned Magistrate his himself in para No. 6 of his judgment stated that no recovery was made from or at the instance of the accused petitioners. When admittedly the cement bags have not been recovered either from the accused petitioners or at their instance and there is no identification mark that the cement belongs to the Rajasthan Canal Project, the petitioners have been wrongly convicted by learned trial Magistrate and the learned Sessions Judge has also erroneously confirmed the conviction and sentence. 10. Consequently, the revision petition succeeds. The petitioners are acquitted from the charges of Secs. 457 and 380 IPCRevision allowed. *******