JUDGMENT : Deepak Maheshwari, J. This revision petition has been preferred on behalf of accused petitioners Shankariya, Sampatiya, Kamsiya, Sharmiya to challenge the judgment dated 15.6.2016 passed by learned Addl. Sessions Judge No.1, Bhilwara Camp Gangapur in Criminal Appeal No.39/2015 whereby he has upheld the judgment dated 08.06.2015 passed by the Court of Addl. Chief Judicial Magistrate, Gangapur, District Bhilwara, convicting the accused petitioners for the offence punishable under Sections 457 and 380 I.P.C. and awarding them sentence of simple imprisonment for a period of one year for the offence under Section 457 I.P.C. and the same sentence along with a fine of Rs.500/- for the offence under Section 380 I.P.C. 2. Learned counsel for the petitioners has argued that the accused petitioners have not been named in the FIR. No person has seen them while committing house trespass and house breaking by night at the place of occurrence. The prosecution has failed to examine any independent witness of the recovery alleged to have been made from the accused petitioners. The allegation is that accused petitioners have committed theft and house breaking in two other shops also but no witness to that effect has been examined. The instrument of committing house breaking is alleged to be an iron rod (Sariya) but that has been recovered from an open place. No independent witness of recovery thereof has been examined. No site plan of the recovery place has been drawn in this regard. On the basis of the arguments advanced, learned counsel for the petitioners submitted that the judgments impugned dated 15.6.2016 passed by learned appellate Court and the judgment dated 08.06.2015 passed by learned trial Court are liable to be quashed and set aside and the revision is liable to be accepted accordingly. 3. Learned Public Prosecutor has vehemently opposed the prayed made by learned counsel for the petitioners. He argued that during the night of the theft itself, the stolen articles have been recovered from the possession of accused Shankariya and Sampatiya. The accused persons and the stolen articles recovered from them have been identified by complainant PW-1 Dalchand and PW-5 Gopilal. Learned Courts below have rightly drawn the inference that these accused have stolen these articles from the Shiv temple on the basis of the recovery made from their possession soon after the occurrence. The accused persons and the stolen articles recovered from them have been identified by complainant PW-1 Dalchand and PW-5 Gopilal. Learned Courts below have rightly drawn the inference that these accused have stolen these articles from the Shiv temple on the basis of the recovery made from their possession soon after the occurrence. The investigating Officer PW-6 Jakir Akhtar has corroborated the steps taken by him during investigation including recovery from the accused persons. Iron rod (Sariya) used by the accused persons in committing the offence of house breaking has been recovered on the information given by accused Sharmiya by way of recovery memo Ex.P/11. His argument was that in the light of the evidence available on record, learned Courts below have correctly convicted the accused petitioners and the sentence awarded to them is commensurate with the nature and gravity of the offence. Hence, the revision petition is liable to be dismissed. 4. I have given thoughtful consideration to the arguments advanced by the rival sides. I have also perused the oral as well as documentary evidence available on record and the reasons assigned by learned Courts below for convicting the accused petitioners and awarding the sentence by the judgments impugned. 5. As per the prosecution story, the allegations against the accused petitioners are that during the intervening night of 2nd and 3rd December, 2002, they committed theft in the Shiv temple situated in village Gurla while committing housing breaking by night and have stolen away an amplifier, mouth organ, cassette, two silver ornaments (Mukut) and the cash kept in the cash box of the temple. It is also alleged that during that night the accused committed house breaking and theft in nearby shops. But suddenly, the people woke up and caught hold of two of the thieves and rest of them ran away. PW-1 Dalchand has narrated these facts during his statement. 6. It is to be noticed that the charges framed against accused persons are only with respect to the occurrence of Shiv temple. Thus, the lack of evidence regarding theft from the shops does not benefit the petitioners. On minute scrutiny of the statements given by all the witnesses, it comes out that none has seen the accused persons while committing theft in the temple. So absence of their names in the FIR is natural. Thus, the lack of evidence regarding theft from the shops does not benefit the petitioners. On minute scrutiny of the statements given by all the witnesses, it comes out that none has seen the accused persons while committing theft in the temple. So absence of their names in the FIR is natural. PW-1 Dalchand has also admitted this fact during his cross examination but he along with other witnesses has stated that on the very night of incident accused Shankariya and Sampatiya were caught hold by the residents of Village Gurla and Article-1 to Article-5 i.e. amplifier, mouth piece, Bhajan cassette, two silver Mukuts, some currency notes and coins worth Rs.104/- were recovered from their possession. PW-5 Gopilal has also corroborated the recoveries made from accused Shankariya and Sampatiya through recovery memos Ex.4 and Ex.5 respectively. It is also worth mentioning that no cross examination has been made from PW-5 Gopilal on the point of recovery. The investigating Officer PW-6 Jakir Akhtar has also corroborated the fact of recovery of these articles efected from accused Shankariya and Sampatiya. So the argument advanced by learned counsel for petitioners with regard to lack of evidence regarding recovery is of no avail. 7. The witnesses have, of course, admitted that these articles are commonly available in the market or in the residence. But in my view, this does not come to the rescue of the accused petitioners looking to the fact that recovery of these articles have been made just after the occurrence of theft during the same night of incident from two of the accused persons namely Shankariya and Sampatiya. The inference drawn by the Courts below regarding committing of theft so far as against these two accused does not require any interference. But so far as the question of convicting other accused Kamsiya and Sharmiya is concerned, I do not find any evidence available on record to justify their conviction for the offence punishable under Section 380 IPC. Neither they have been caught red handed on the spot nor any recovery has been efected from them of any of the stolen articles. So the evidence is completely missing to link them with the offence under Section 380 I.P.C. 8. Neither they have been caught red handed on the spot nor any recovery has been efected from them of any of the stolen articles. So the evidence is completely missing to link them with the offence under Section 380 I.P.C. 8. So far the case of Sharmiya is concerned, recovery is alleged to have been made of iron rod (Sariya) at the instance of the information given by him under Section 27 of the Indian Evidence Act vide recovery memo Ex.11. Learned Courts below have connected accused Sharmiya with the alleged offence on the basis of this recovery. On close scrutiny of statements given during cross-examination of PW-6 Jakir Akhtar, it reveals that the place of recovery of 'Sariya' was an open place. He has also admitted that he did not prepare the site plan of the recovery place. This is also an admitted fact that the recovery is said to have been made from nursery of Gram Javasiya but the investigating Officer failed to examine any of the employees working at the nursery or to make him the witness of recovery memo. The only motbir of recovery memo Ex.11 is PW-7 Lal Sing, who is a police personnel working in subordination of the investigating Officer PW-6 Jakir Akhtar. Other motbir Chandra Prakash has not been examined during trial who is also a LC working in subordination of the investigating Officer PW-6 Jakhr Akhtar. Looking to these facts, the recovery of iron rod at the instance of Sharmiya has not been satisfactorily proved. Thus, connecting him with the offence on the basis of recovery of this rod cannot be held to be valid. It is also worth mentioning that no recovery of any item alleged to have been stolen from the Shiv temple has been effected from the possession of accused petitioners Sharmiya and Kamsiya. Further, no evidence has been adduced by the prosecution with regard to locks or the receptacles, which were broken open by the accused petitioners while committing house breaking and theft from the temple. No witnesses or the 'Pujari' of temple has stated that he locked the place when he left the temple wherein the stolen articles were kept. Neither any recovery has been made of the locks, which were broken nor any site plan has been proved showing as to where these locks were put by the 'Pujari' of the temple. No witnesses or the 'Pujari' of temple has stated that he locked the place when he left the temple wherein the stolen articles were kept. Neither any recovery has been made of the locks, which were broken nor any site plan has been proved showing as to where these locks were put by the 'Pujari' of the temple. Due to complete absence of this evidence, the prosecution has failed to prove the offence under Section 457 I.P.C. against all the accused petitioners. 9. In the light of the discussions made herein above, this Court is of the considered opinion that the order of conviction for the offence punishable under Section 380 I.P.C. insofaras accused petitioners Shankariya and Sampatiya is concerned, appears to be legally perfect in which no interference is called for. However, in the absence of sufficient evidence to convict Shankariya and Sampatiya for the offence under Section 457 I.P.C. as also accused petitioners Kamsiya and Sharmiya for both the offences under Sections 457 and 380 I.P.C., the judgments impugned cannot be sustained and the revision petition deserves to be allowed accordingly. 10. So far as the sentence of one year simple imprisonment along with a fine of Rs.500/- awarded to the accused petitioners Shankariya and Sampatiya for the offence punishable under Section 380 I.P.C. is concerned, it appears to be in proportion to the nature and gravity of offence proved against them. No interference is thus, called for so far as the quantum of sentence is concerned. 11. Resultantly, the revision petition preferred at the instance of accused petitioners Shankariya and Sampatiya deserves to be allowed party so far as the conviction for offence under Section 457 I.P.C. and the sentence therefor is concerned. The petition in sofaras the conviction and sentence for the offence under Section 380 I.P.C. is concerned, it deserves to be dismissed and the same is hereby dismissed. So far as the revision petition preferred at the instance of accused petitioners Kamsiya and Sharmiya is concerned, the same is allowed and the judgment passed with regard to these two accused petitioners by the Courts below on dated 08.06.2015 and 15.6.2016 is quashed and set aside. A copy of this judgment be sent to the Courts concerned immediately along with the original record of the case for information and necessary action. A copy of this judgment be sent to the Courts concerned immediately along with the original record of the case for information and necessary action. If the accused petitioners Kamsiya and Sharmiya are presently lodged in jail in connection with this case then they may be released forthwith, if not required in any other case.