JUDGMENT & ORDER : 1. This is a criminal revision petition filed under Sections 397/401 read with Section 482 of the Cr.PC against the judgment and order, dated 19.02.2005, passed by the learned Adhoc Additional Sessions Judge, Sonitpur, Tezpur in Criminal Appeal Case No. 18(S-3) 2003, affirming the order of conviction recorded by the learned Chief Judicial Magistrate, against the accused petitioner in GR Case No. 1551/2001. The learned Chief Judicial Magistrate convicted and sentenced the accused petitioner to Rigorous Imprisonment for a period of 3 (three) years under Section 454 of the IPC and pay a fine of Rs. 500/- and Rigorous Imprisonment for 3 (three) years and a fine of Rs. 500/- under Section 380 of the IPC, and in default of payment of fine, the accused petitioner shall undergo Simple Imprisonment for 2 (two) months on each count. Both the sentences are to run concurrently. In the appeal aforesaid, the learned Adhoc Additional Sessions Judge, Sonitpur, Tezpur reduced the sentence of the accused petitioner to Rigorous Imprisonment for one year under Section 454 IPC and also to pay a fine of Rs. 500, in default, Rigorous Imprisonment for two months and further sentenced him to Rigorous Imprisonment for one year under Section 380 of the IPC and also to pay a fine of Rs. 500/-, in default, Rigorous Imprisonment for two months. 2. None appears for the accused petitioner on repeated calls. Heard Mrs. S Jahan, learned Additional Public Prosecutor, appearing for the State of Assam/respondent. 3. I have gone through the appeal memo as well as the records of the learned Trial Court and the Lower Appellate Court, including the evidence. 4. The fact of the case is, on 08.11.2001, while the informant (PW1) and the members of his family were not present in their house, somebody had stolen away one colour TV with stabiliser, three numbers of bed covers, three numbers of sarees and two LPG Gas Cylinders. The thief committed the theft in respect of the above articles by entering into the house of the informant by breaking open the locks of the gate and doors of the house. 5. On the above facts, the informant, examined as PW1, lodged an FIR with the Tezpur Police Station, which registered the case. After completion of investigation of the case, the Police submitted Charge-Sheet against the accused petitioner under Sections 454/380 of the IPC. 5. On the above facts, the informant, examined as PW1, lodged an FIR with the Tezpur Police Station, which registered the case. After completion of investigation of the case, the Police submitted Charge-Sheet against the accused petitioner under Sections 454/380 of the IPC. During the investigation, the Police seized the stolen articles and also arrested the accused petitioner. After exhausting all the necessary formalities, the learned Chief Judicial Magistrate, Tezpur, Sonitpur framed a formal charge against the accused petitioner under Sections 454/380 of the IPC to which he pleaded innocence. 6. The prosecution examined as many as 8 (eight) witnesses including the Investigating Police Officer. They were cross-examined by the defense. The defense examined none. In his statement under Section 313 of the Cr.PC, the accused petitioner denied the accusation. 7. On perusal of the evidence of all the 8 (eight) witnesses, examined by the prosecution, it transpires that the judgment of the learned Trial Court as well as the Lower Appellate Court were mostly based on the evidence of the informant/PW1, PW2, PW3, PW4 and PW5. 8. The evidence of PW1, who is the informant, makes it appear that during his absence with his family members, the theft was committed in his house on 08.11.2001 in the midnight by breaking the doors and locks of his house in respect of the articles referred to in the FIR. 9. It appears from the evidence of the PW1 that the stolen articles were seized from the accused petitioner, which he identified to be his. The evidence on record makes it appear that the accused petitioner was arrested by the Police, during investigation, and as led by him, one of the stolen articles, i.e., the gas cylinder, was recovered from his possession and then the other articles were recovered from the house of the accused petitioner. 10. The PW3, who is a rickshaw puller, is found to have stated in his evidence that the stolen articles were carried by the accused petitioner in his rickshaw and also identified the stolen articles which he carried in his rickshaw after recovery of the same. Although the accused petitioner did not carry the stolen articles by himself in the said rickshaw, yet the articles were put in the rickshaw for carrying to a particular destination by him. 11. Although the accused petitioner did not carry the stolen articles by himself in the said rickshaw, yet the articles were put in the rickshaw for carrying to a particular destination by him. 11. The PW5 is another rickshaw puller, who also deposed that he had carried the stolen articles in his rickshaw at the instance of the accused petitioner from midway, taking it from the other rickshaw, which originally carried them. 12. So, the evidence of PW3 and PW5 makes it appear that the stolen articles were carried by the rickshaw pullers at the instance of the accused petitioner. PW1, i.e., the informant recognised the stolen articles to be the articles those were stolen from his house. 13. The PW2 and PW4 are the witnesses to the seizure who are found to have deposed that the articles were seized in their presence by the Police. 14. On the basis of such evidence, which remained unassailed, even during the cross-examination, the learned Trial Court recorded the order of conviction of the accused petitioner. 15. The learned Trial Court of CJM, Tezpur, Sonitpur, had written a thorough judgment on the basis of the evidence on record and has discussed the pros and cons of the prosecution witnesses and the fact that the defense failed to assail the evidence during cross-examination. 16. The learned Trial Court found the accused petitioner guilty of the offence under Sections 454/380 of the IPC and convicted and sentenced the accused petitioner as indicated above. 17. Aggrieved by the judgment and order of the learned Trial Court, the accused petitioner preferred an appeal before the learned Sessions Judge. Vide the judgment, referred to above; the learned Lower Appellate Court of the Additional Sessions Judge, upheld the order of conviction. However, modified the sentence imposed upon the accused petitioner. The sentence was reduced to Rigorous Imprisonment for 1 (one) year under Section 454 of the IPC and to pay a fine of Rs. 500, in default, Rigorous Imprisonment for 2 (two) months and also sentencing the accused petitioner to Rigorous Imprisonment for 1 (one) year under Section 380 of the IPC and also to pay a fine of Rs. 500, in default, Rigorous Imprisonment for 2 (two) months and both the sentences were ordered to run concurrently. 18. The present criminal revision petition is against the aforesaid judgments. 500, in default, Rigorous Imprisonment for 2 (two) months and both the sentences were ordered to run concurrently. 18. The present criminal revision petition is against the aforesaid judgments. The accused petitioner, on the basis of the evidence on record, is held guilty, and therefore, was convicted, after thorough discussion of the evidence on record. While the learned lower Appellate Court, maintaining the conviction, reduced the sentence of the accused petitioner as aforesaid. 19. It is found from the impugned judgments that the accused petitioner was convicted by the learned Court Below under Sections 454/380 of the IPC. 20. Section 454 of the IPC is offence in respect of lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment and Section 380 of the IPC is with respect to theft in dwelling house. So, it appears that the accused petitioner entered into the house of the informant/PW1 for commission of theft. In the considered view of this Court holding the accused petitioner guilty under Section 380 of the IPC on the evidence on record is found to be in order. There is no evidence to suggest, even remotely, as to whether the accused petitioner entered into the house of the informant or not by committing lurking house trespass. There is no specific evidence at all to that effect. 21. That being so, conviction of the accused petitioner, under Section 380 of the IPC is affirmed and the conviction under Section 454 of the IPC is set aside, and consequently the punishment imposed under Section 454 is also set aside. 22. So far punishment in respect of the offence committed by the accused petitioner under Section 380 of the IPC is concerned, the learned Lower Appellate Court reduced the punishment to Rigorous Imprisonment for 1 (one) year with fine of Rs. 500/- with a default clause. This is a case of the year 2001 and the present criminal revision petition is pending before this Court since 2005. 23. Considering such facts as well as the nature of the offence, in the considered view of this Court, the punishment under Section 380 of the IPC is reduced to Simple Imprisonment for 1 (one) month and a fine of Rs. 500/-, in default Simple Imprisonment for another 7 (seven) days which according to this Court, will be proportionate to the offence 24. Accordingly, the criminal revision petition is partly allowed. 500/-, in default Simple Imprisonment for another 7 (seven) days which according to this Court, will be proportionate to the offence 24. Accordingly, the criminal revision petition is partly allowed. The period of custody of the accused petitioner, during investigation of the case, is set off. The fine be paid by the accused appellant before the learned Trial Court within one month and in default to suffer simple imprisonment for 7 (seven) days. 25. Send down the LCR along with the copy of this judgment.