ORDER By the Court.- This Criminal Revision is directed against the order dated 4.10.2010 recorded by the Additional Sessions Judge-I-cum Special Judge. C.B.I.. Dhanbad in Criminal Appeal No. 103 of 2009 by which the judgment of conviction and order of sentence recorded against the petitioners herein in R.C. Case No.5(S)/94. corresponding to T.R. No. 1084 of 2009 was affirmed and the appeal was dismissed. 2. The petitioners were convicted under Section 120-B read with 380 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5.000/- on each count with default stipulation. Their further conviction under Section 380. I.P.C. with similar quantum of punishment and fine was also upheld in appeal. 3. The prosecution story in short was that in the night intervening 4/5.3.1993 at about 3.30 a.m. when the informant Ram Pukar Singh. Sub-Inspector of Police posted at Haria Police Station was on night patrol on his motorcycle with A.S.I. Ajit Kumar as pillion near Basanti More he received confidential information that huge quantity of steel was to be illegally removed from Bokaro Steel Plant with the connivance of the Management of the B.S.L. and the personnel of the C.I.S.F. In the meantime other witnesses Ram Bijay Sao and Isharul Haque Khan. the members of the State Armed Force came to him. All the four proceeded towards Gate No.3 of the Bokaro Steel Limited. It is further stated that when they reached Mahuar More the villagers met them on the way and confirmed the information. At about 4.40 a.m. they witnessed some trucks loaded with some articles coming from the Gate No.3 of the Bokaro Steel Limited which were intercepted by the informant but the drivers of the trucks jumped and escaped. On verification it was found that the Truck No. BRY-5672 was carrying stolen steel slab and that similarly stolen steel slabs were also found in Truck No.BHJ-8601. BRN-7539 and OSC-8916. All the four trucks carrying stolen steel slabs were seized. The informant presumed that the heavy steel slabs were loaded on the respective truck through powerful crane and such crane was available only with the B.S.L.-Management and therefore he had reason to believe the complicity of the Management of the B.S.L. in such illegal act. It was further alleged that as per order of D.I.G.. The informant presumed that the heavy steel slabs were loaded on the respective truck through powerful crane and such crane was available only with the B.S.L.-Management and therefore he had reason to believe the complicity of the Management of the B.S.L. in such illegal act. It was further alleged that as per order of D.I.G.. CISF posted in the B.S.L. both the gates of the Bokaro Steel Limited (BSL.) used to be sealed at about 9.30 p.m. which used to be opened at 5.00 a.m., in the following morning therefore it was suspected that the seized steel slabs might have been loaded in the trucks inside the premises of B.S.L. with the connivance of the C.I.S.F. personnel who were deputed on the gates as guards. The informant admitted that about 43 tonnes of steel valued at Rs. 3.00.000/- (Three lakh) belonging to B.S.L. were being carried illegally after committing theft from the B.S.L. premises. On the basis of the written report of the informant. Harla P S Case No. 22 of 1993 was registered against 19 accused persons. It is relevant to mention that charge-sheet was submitted by the State Police after investigation of the case which was superseded by subsequent charge-sheet which was filed under Section 173 of the Code of Criminal Procedure by the C.B.I. before the S.D.J.M.-cum-Special Judicial Magistrate. Dhanbad wherein cognizance of the offence was taken under Section 120-B read with Sections 380, 411 and 457 of the Indian Penal Code against different sets of accused persons. During trial 25 prosecutions witnesses were examined. Besides the prosecution proved several documents including the seizure lists and the material exhibits. After trial the S.D.J.M.-cum-Special Judicial Magistrate CBI observed that the prosecution failed to establish the charge under Section 120B read with Section 380 of the Indian Penal Code but there were ample materials for the said charge against •the petitioners Khursheed Parvez Siddiqui, Mulkraj Singh and Kalpadrum Apta who were accordingly convicted under Section 120- B read with Section 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 5.000/- with default-stipulation. Each of them was further convicted under Section 380 of the Indian Penal Code with the similar quantum of sentence and fine. The petitioners then preferred Criminal Appeal No. 104 of 2009 before the learned Additional Sessions Judge-I-cum-Special Judge. CBI which was dismissed. 4. 5.000/- with default-stipulation. Each of them was further convicted under Section 380 of the Indian Penal Code with the similar quantum of sentence and fine. The petitioners then preferred Criminal Appeal No. 104 of 2009 before the learned Additional Sessions Judge-I-cum-Special Judge. CBI which was dismissed. 4. Learned senior counsel Mr. M.K. Dey assailing the judgment impugned recorded by the Additional Sessions Judge-I-cum-Special Judge. CBI in Criminal Appeal No. 104 of 2009 submitted with reference to paragraph No.9 of the Judgment that though the Appellate Court observed that there was no direct and positive evidence showing physical presence of the appellants (petitioners) at the time of occurrence and commission of any overt act and that not a single witness claimed having seen the occurrence however the learned Appellate Court relied upon the statement of the hostile witnesses viz. P.W. 17 and P.W. 21 and upheld the conviction of the petitioners on speculation withe ut any positive evidence relying upon the statement of P.W. 17 Ekbal Singh recorded under Section 161 of the Code of Criminal Procedure before the Investigating Officer during investigation. 5. Learned Appellate Court observed that P.W. 17 Ekbal Singh after he was declared hostile deposed in the hearsay nature and proved the presence of the petitioner Khursheed Parvez Siddiqui and Mulkraj Singh at the muck-dump at the time of illegal removal of the slabs by the said trucks but this evidence was not sufficient to constitute the offence under Sections 120-B/380 of the Indian Penal Code learned senior counsel Mr. Dey added. Similarly. P.W. 19 Jetha Munda a constable in C.I.S.F. was also declared hostile who testified at the time of checking the dumpers at the gate he was assured by the petitioners Khursheed Parvez Siddiqui & Mulkraj Singh that there was nothing to worry and such utterances also did not constitute offence under Sections 120B/380 of the Indian Penal Code and the prosecution miserably failed to prove the charge of criminal conspiracy as against the petitioners yet it was observed by the Appellate Court that this witness had given a. corroborative evidence. 6. With reference to the statement of the P.W. 21 Ramesh Kundalkar when his attention was drawn. 6. With reference to the statement of the P.W. 21 Ramesh Kundalkar when his attention was drawn. he denied having narrated before the Police that the petitioners Khursheed Parvez Siddiqui and Mulkraj Singh had come at the Gate No. 3 and asked him not to stop the dumpers as it were carrying steel slabs therefore the attention of the witness which was drawn towards his earlier alleged statement to which denial made by him cannot be held to be an evidence under Section 3 of the Indian Evidence Act. 7. Concluding the judgment the learned Appellate Court observed that the caution made by the petitioners not to check any dumper and that the PWs positively deposed regarding presence and participation of the appellants in the alleged offence. was an error of the record as none of the witnesses has corroborated active participation of any of the petitioners herein in the alleged offence the learned senior counsel added yet, it w~ observed that the prosecution has at least succeeded to substantiate the charge under Sections 120-B/380 of the Indian Penal Code and Section 380 of the Indian Penal Code which cannot at all be sustained under law. 8. Heard Mr. Khan, the learned counsel appearing for the Opposite Party C.B.I. who submitted that the judgment recorded by the Appellate Court well discussed which contained the evidence of the prosecution witness and the finding of the Appellate Court needed no interference in view of the fact that the complicity of the petitioners in the facts and circumstances was proved and therefore, this revision may be dismissed. 9. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the Appellate Court relied upon the part statement of the hostile witnesses who denied having stated the complicity of the petitioners for the alleged charge when his attention was drawn and therefore such statements cannot be treated as evidence under Section 3 of the Evidence Act. Appellate Court was not sure as to whether the offence alleged under Sections 120-B/380 of the Indian Penal Code was made out against the petitioners, I do not find justification in convicting the petitioners under Section 120-B read with Section 380 of the Indian Penal Code and again under Section 380 of the Indian Penal Code in the given facts and circumstances of the case. I further find that there is an error of record and the learned Appellate Court tailed to appreciate and distinguish the statement under Section 161 of the Code of Criminal Procedure with that of the evidence under Section 3 of the Indian Evidence Act. Similarly, the prosecution failed to produce direct evidence as against any of the petitioners for the alleged charge and the Appellate Court ignored this aspect while entering into the scrutiny of the judgment of the Trial Magistrate. I, therefore. find and observe that a reasonable double is created as to the complicity of these petitioners for the alleged charge and whenever any doubt is created, it always goes in favour of the appellants-accused, accordingly, according them benefit of doubt the petitioners are acquitted in Haria P.S. Case No. 22 of 1993 from the charge and the judgment of conviction and order of sentence recorded against them by the S.D.J.M.-cum-Special Judicial Magistrate. C.B.I., Dhanbad in R.C.S (s) 1994 corresponding to T.R. No. 1084 of 2009 and affirmed by the Additional Sessions Judge-cum-Special Judge, C.B.I. in Criminal Appeal No. 104 of 2009 are set aside. Accordingly this revision is allowed. Revision allowed.