ORDER : The present petitioner was accused No.2 in the Court of the II Additional Civil Judge and JMFC II Court, Hassan (henceforth for brevity referred to as the ‘Trial Court’) in C.C.No.627/2006 which Court by its impugned Judgment of conviction and order of sentence dated 17.05.2008 convicted the accused for the offence punishable under Sections 380 and 457 of the Indian Penal Code (henceforth for brevity referred to as the ‘IPC’) and sentenced them accordingly. Against the said judgment of conviction, both the accused preferred an appeal before the Court of the Additional Sessions Judge, Hassan (henceforth for brevity referred to as the ‘Session Judge’s Court’) in Crl.A.No.69/2008 which also by its impugned judgment dated 05.04.2010 while confirming the judgment of conviction challenged before it dismissed the appeal. Being aggrieved by the same, the accused No.2 has preferred this revision petition. 2. Though the petitioner was originally represented by a counsel engaged by him, however due to the continuous absence of the said learned counsel in this matter, this Court by its order dated 13.08.2020 appointed an Amicus Curiae to appear on behalf of the petitioner. Respondent is being represented by the learned High Court Government Pleader. Lower court records were called for and the same are placed before this Court. 3. Heard the arguments on both sides. 4. The learned Amicus Curiae was heard through video conferencing who in his arguments submitted that the entire case of the prosecution is based on circumstantial evidence and both the Trial Court as well as the Session Judge’s Court have failed to appreciate the fact that none of the material witnesses have supported the case of the prosecution. On the other hand, merely relying upon the evidence of the police witnesses, the Courts have pronounced the judgment of conviction. As such, the said incorrectness in the appreciation of the material witnesses’ evidence has to be remedied by this Court. Learned High Court Government Pleader in his brief argument submitted that merely because PWs7 to 9 are the police witnesses’, their evidence cannot be discarded. As such, the Trial Court has rightly convicted the accused for the alleged offence, which judgment of conviction and order on sentence does not warrant any interference at the hands of this Court. 5. Perused the entire records placed before this Court. As such, the Trial Court has rightly convicted the accused for the alleged offence, which judgment of conviction and order on sentence does not warrant any interference at the hands of this Court. 5. Perused the entire records placed before this Court. In the light of the above, the points that arise for my consideration are: i) Whether the Trial Court as well the Session Judge’s Court have committed any illegality or incorrectness which has led them to pass and confirm the judgment of conviction which are impugned under this appeal? ii) Whether the judgments under revision deserves any interference at the hands of this Court? 6. The chargesheet allegation is that on the intervening night of 15th and 16th of February, 2006, the present petitioner joined by accused No.1 Nyamat Ali @ Naheem committed lurking house trespass in the Government Higher Primary School, B.M.Road, Hassan Town and committed theft of utensils including 77 steel plates, two wall clocks, etcetera and sold those articles to PW6 Shivaji Rao and thus have committed an offence punishable under Sections 380 and 457 of I.P.C. 7. In order to prove the alleged guilt against the accused who pleaded not guilty, the prosecution examined nine witnesses from PW1 to PW9 and got marked documents at Exs.P1 to P11(a) and material objects at M.O.1 to M.O.4 in the Trial Court. From the accused side, neither any witnesses were examined nor any documents were marked as exhibits. 8. Learned counsel for the petitioner in his arguments submitted that he would not dispute the alleged incident of lurking house trespass and theft said to have been occurred in the premises of the Government Higher Primary School, Hassan in the intervening night of 15th and 16th of February, 2006 and also theft of several utensils and two wall clocks, totally valued at Rs.3,000/. However, he strongly disputes that the said act of lurking house trespass and theft was committed by the accused and more particularly, by the present petitioner who is accused No.2. Even PW2 Shri.Eraiah who is the complainant and the head master of the school where the alleged incident has taken place also in his evidence stated about the alleged incident of lurking house trespass and theft on the intervening night of 15th and 16th of February, 2006. Even PW2 Shri.Eraiah who is the complainant and the head master of the school where the alleged incident has taken place also in his evidence stated about the alleged incident of lurking house trespass and theft on the intervening night of 15th and 16th of February, 2006. PW1 Babu and PW3 Niranjana Kumar have spoken about the Investigating Officer conducting the scene of the offence panchanama as per Ex.P1 in his presence. The evidence of PW7 Veerabhadrashastry, the Investigating Officer about PW2 registering a complaint before him and he conducting the investigation in this matter is thus corroborated by the evidence of PWs1, 2 and 3 in proving the alleged incident of lurking house trespass and the theft of certain utensils, vessels and other articles. 9. Admittedly, there are no eyewitnesses to the alleged incident. Even the complainant has stated that himself being the head master of the said school, he used to unlock the school everyday morning and lock it in the evening. As a routine on the evening of 15.02.2006, he had locked the school building and gone to his house only to notice on the next day morning about the breaking open of the lock of the school premises and theft of several utensils and other articles kept for midday meals, including 77 steel plates and two wall clocks, etcetera. He has also specifically stated in his evidence that he has not seen the incident or the accused. He has further stated that though after few days of he lodging the complaint, the police called him to the police station and shown him the stolen articles alleged to have been recovered from the accused No.1, however, they did not show him the accused. As such, his evidence can only speak about the incident of lurking house trespass and theft but not about the alleged involvement of the petitioner in the incident. Similarly, the evidence of PW1 and PW3 though can speak about the Investigating Officer drawing a scene of offence panchanama as per Ex.P1 but they throw no light about the alleged involvement of the petitioner in the crime. 10. Even according to the prosecution, the involvement of the accused in the commission of the crime came to light only after apprehension of accused No.1 by PW8 on 09.06.2006. 10. Even according to the prosecution, the involvement of the accused in the commission of the crime came to light only after apprehension of accused No.1 by PW8 on 09.06.2006. PW8 Dharmappa, Constable has stated that after being deputed for the duty of tracing and apprehending the accused in this crime on 09.06.2006, while he was taking a round on Gorur Road in the morning at about 9.30 a.m., he saw a person attempting to run away after seeing the police. He was apprehended by this witness, who by that time was accompanied with another Head Constable, and produced him before the Investigating Officer. The said Investigating Officer when conducted physical search of that accused in the presence of panchas, noticed the said accused being in possession of an iron rod at M.O.4. During interrogation, the accused gave the voluntary statement stating that he joined by accused No.2, committed the alleged theft after trespassing into the school premises on the intervening night of 15th and 16th of February, 2006. PW8 has also stated that subsequently on 26.06.2006, once again, he joined by Head Constable No.202 were deputed for tracing accused No.2 in this crime. While they were on their rounds at about 9.30 a.m., near mutton market of Hassan, they noticed a person having seen these people started running away from them. These people chased him and brought him to the police station and produced him before the Investigating Officer. During the interrogation made by the Investigating Officer, the said accused disclosed that he too had joined accused No.1 in the commission of lurking house trespass and theft involved in this case. 11. PW9 Acchegowda who is the said Head Constable referred to by PW8 has also given his evidence on the line of PW8 thus supporting the case of the prosecution. 12. PW7 Veerabhadrashastry who is the Investigating Officer in his evidence has also stated that PWs8 and 9 whom he had deputed for tracing and apprehending the accused involved in this crime produced accused No.1 before him on 09.06.2006 and accused No.2 on 26.06.2006. He interrogated them and recorded their voluntary statement as per Exs.P10 and P11 respectively. 12. PW7 Veerabhadrashastry who is the Investigating Officer in his evidence has also stated that PWs8 and 9 whom he had deputed for tracing and apprehending the accused involved in this crime produced accused No.1 before him on 09.06.2006 and accused No.2 on 26.06.2006. He interrogated them and recorded their voluntary statement as per Exs.P10 and P11 respectively. He has also stated that based on the voluntary statement given by accused No.1 on 09.06.2006, he took the accused along with the panchas to the shop of PW6 Shivaji Rao to whom the accused No.1 was said to have sold the stolen articles as revealed by accused No.1 in his voluntary statement. According to PW7, he recovered the stolen goods at the instance of accused No.1. He got those articles identified by the complainant and after completing the investigation has filed chargesheet against the accused for the alleged offences. The witness has identified an aluminum vessel at M.O.1, a cap at M.O.2 and 77 steel plates at M.O.3. 13. The prosecution also got examined PW4 Shyam and PW5 H.M.Prakash calling them as panch witnesses for the recovery panchanama said to have been drawn by PW7 at the time of the alleged recovery of the articles which is said to be at the instance of accused No.1. However, neither of these two witnesses have supported the case of the prosecution in identifying the accused and for stating that it was at his instance, the alleged stolen recovery of articles were made as per recovery panchanama at Ex.P2. They have stated that only at the instance of the police, they have put their signature on a preprepared panchanama. In that manner, the alleged panchas to the recovery panchanama have not supported the case of the prosecution. However, PW4 during the course of his cross-examination from the prosecution at one place in one sentence has admitted a suggestion of the prosecution as true wherein it was suggested to him that accused No.1 after approaching Shivaji Rao shop (PW6) after identifying Shivaji Rao asked him to produce 77 steel plates and aluminum vessel with its lid which was sold to him earlier, at which, said Shivaji Rao agreed and produced those articles. 14. 14. The only witness left was PW6 Shivaji Rao who has stated that he has put signature to the recovery panchanama at Ex.P3 in his shop as directed by the police without knowing what is the content of the said document. The police have also not read the said document to him nor shown the accused No.1 to him. He categorically stated that accused No.1 was not brought to his shop by the police and no recovery of any articles muchless an aluminum vessel and 77 steel plates were made at the instance of the accused in his shop. At the request of the prosecution, the witness was treated as hostile and therefore, permitted to be cross-examined by the prosecution. In his cross-examination also, he adhered to his original stand denying that the recovery of aluminum vessel and steel plates were made in his shop and at the instance of the accused No.1. 15. The above evidence clearly goes to show that the entire case of the prosecution is based on the alleged recoveries said to have been made at the instance of accused No.1. No independent witness has clearly supported the case of the prosecution regarding the recovery. Even PW4 also has turned hostile to the prosecution. However, in his cross-examination, though he denied several other suggestions put to him by the prosecution but admitted one suggestion that at the instance of accused No.1, PW6 produced the stolen articles before them. The Trial Court has solely relied upon the said stray statement made in the form of an admission of a suggestion by PW4 in the cross-examination by the prosecution and the evidence of the Investigating Officer (PW7) as the sole basis for convicting the accused, more particularly, accused No.2. The Trial Court as well the Session Judge’s Court citing that it is not the number of witness that matters but it is the quality of the witness that matters, have also observed that the evidence of the Investigating Officer cannot be disbelieved due to lack of corroboration to it. No doubt, merely because the evidence is of the Investigating Officer in a matter, the said evidence cannot be totally discarded. No doubt, merely because the evidence is of the Investigating Officer in a matter, the said evidence cannot be totally discarded. However, it is also not safe to solely rely upon the said evidence in the absence of any other corroborative evidence in a case where the prosecution had ample opportunity to place corroborative evidence before the Court or such evidence was available before the Court. In the case on hand, as observed above, admittedly, there is no eyewitness to the alleged incident. It is solely upon the alleged voluntary statement of accused No.1, the alleged recovery of M.O.Nos.1, 3 and 4 are said to have been made by the Investigating Officer. The best persons who would speak about the alleged recovery are the shop owner from whose shop, the recovery is said to have been made and the panchas to the alleged recovery panchanama. In the instant case, at the outset, none of them have supported the case of the prosecution. Even though, PW4 who was one among the two witnesses of the alleged recovery panchanama has made an admission of a stray suggestion made to him in his cross-examination, but reading of his evidence in its entirety clearly goes to show that throughout he has been placing before the Court that he is not aware of the alleged recovery said to have been made in this case at the instance of accused No.1. Even after treating him as hostile and cross-examining him also, the prosecution except upon a single stray admission could not get support upon various other suggestions made to him pertaining to the alleged recovery. Thus, when the evidence of this witness is read in its entirety, what it infers is that except subscribing his signature to a prepared panchanama, this witness knows nothing and that too, he has put his signature because the police had asked him to put it. Thus, the single stray sentence of PW4 made in his cross-examination by the prosecution would not enure to the benefit of the prosecution. This is also for the reason that in his subsequent cross-examination from the accused side, he has admitted a suggestion as true that to the alleged recovery panchanama, he has put his signature in the police station. He also admitted that he is not acquainted with the accused. This is also for the reason that in his subsequent cross-examination from the accused side, he has admitted a suggestion as true that to the alleged recovery panchanama, he has put his signature in the police station. He also admitted that he is not acquainted with the accused. More importantly, in the very same cross-examination, he has also stated that by the time, he went to the shop, the police had already collected the vessels from the shop owner and he did not notice what type of articles they were. Thus, he was clear in his view that no recovery was made from the shop of PW6 in his presence, particularly, at the instance of the accused. That being the case, relying upon his evidence by the Trial Court as a corroborative evidence to the evidence of PW7 was not warranted. 16. The only witness upon whose evidence, the conviction has been pronounced by the Trial Court and confirmed by the Session Judge’s Court is the evidence of PW7. As already observed above, PW7 is the Investigating Officer in the matter. Though merely because, he was the Investigating Officer, his evidence cannot be suspected from its inception but at the same time, it was not safe for the Trial Court to solely rely upon his evidence, when several other material witnesses including the recovery panchas and the shop owner alleged to have purchased the stolen goods from the accused has not supported the case of the prosecution. Thus, when there were ample opportunities for the prosecution to place the evidence corroborating the evidence of the Investigating Officer, and when the prosecution has failed in its attempt and more particularly, when the other witnesses have not supported the case of the prosecution, then it is not safe for the Trial Court to convict the petitioner (accused No.2) in the crime. The Trial Court also failed to notice the fact that admittedly, there was no recovery made at the instance of the accused No.2 (petitioner). Even according to the prosecution, the accused No.1 was arrested by the police in this case on 09.06.2006 and it was only after 17 days, i.e., on 26.06.2006, the present petitioner (accused No.2) was apprehended by them. Even according to the prosecution, the accused No.1 was arrested by the police in this case on 09.06.2006 and it was only after 17 days, i.e., on 26.06.2006, the present petitioner (accused No.2) was apprehended by them. By that time, the alleged voluntary statement said to have been given by accused No.1 was already before the Investigating Officer who had by then completed the alleged recovery under the alleged panchanama under Ex.P3. Thus, even according to the prosecution, after the alleged arrest of accused No.2/petitioner, no progress was made in the investigation except proceeding to file chargesheet. Furthermore, admittedly, except the alleged voluntary statements of accused, there are no material to show that the present petitioner had participated in the alleged commission of crime. In such a situation, it was not safe to hold the present petitioner/accused No.2 as guilty for the alleged offence. Since both the Trial Court and the Session Judge’s Court have failed to appreciate this aspect and appears to have been carried away by the sole evidence of PW7 Investigating Officer, they have landed up in erroneous finding holding that the present petitioner/ accused No.2 is guilty of the alleged offence. Since the said finding is now proved to be an erroneous finding, the same deserves to be set aside and it has to be held that the prosecution has failed to prove the alleged guilt against the petitioner. Accordingly, I proceed to pass the following order: ORDER: [i] The criminal revision petition is allowed; [ii] The judgment of conviction dated 17052008 and order on sentence dated 19052008, passed by the learned II Additional Civil Judge (Jr.Dn.) and JMFCII Court, Hassan in C.C.No.627/2006 and further confirmed by the Additional Sessions Judge, Hassan in Crl.A.No.69/2008 in its judgment dated 05.04.2010 are set aside; [iii] The petitioner/accused No.2, namely, Suhil Pasha @ Cheelu, Son of Seemeyenne Aslam, Aged about 24 years, Resident of Tippunagar, Hassan, is acquitted of the offence punishable under Sections 380 and 457 of the Indian Penal Code, 1860; [iv] The bail bonds executed by the petitioner stands cancelled. The Court acknowledges the services rendered by Shri.Amit Deshpande, learned panel advocate from the High Court Legal Services Committee. While acknowledging the assistance rendered by him in this case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of Rs.3,000/-. The Court acknowledges the services rendered by Shri.Amit Deshpande, learned panel advocate from the High Court Legal Services Committee. While acknowledging the assistance rendered by him in this case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of Rs.3,000/-. Registry to transmit a copy of this judgment to the Trial Court and Sessions Judge Court along with their respective records immediately.