Allahabad High Court
Arvind Parmar @ Bunty Raja And 2 Others vs State Of U.P. on 5 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 2803, AIRONLINE 2019 ALL 2777
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on31.7.2019 Judgment delivered on 5.8.2019 Case :- CRIMINAL APPEAL No. - 5205 of 2018 Appellant :- Arvind Parmar @ Bunty And 2 Others Respondent :- State Of U.P. Counsel for Appellant :- Ram Datt Dauholia,Nanhe Lal Tripathi Counsel for Respondent :- G.A. Hon'ble Ram Krishna Gautam,J.
1. This Appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (In short hereinafter referred to as ''Cr.P.C.'), has been filed by the convict-appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra, and Raheem Khan, against the judgment of conviction, dated 26.7.2018 and sentences awarded therein by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 51 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 778 of 2012, under Sections 380, 457 and 411 of Indian Penal Code (In short ''IPC'), Police Station- Kotwali Lalitpur, District Lalitpur, whereby convict-appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra and Raheem Khan have been sentenced with five years' rigorous imprisonment and fine of Rs.5,000/-, each, under Section 380 IPC; ten years' rigorous imprisonment, with fine of Rs.10,000/-, each, under Section 457 IPC and three years' rigorous imprisonment, with fine of Rs.3,000/-, each, under Section 411 IPC. In case of default in deposit of fine of Rs.10,000, they will have to serve one year's additional simple imprisonment, in case default in deposit of fine of Rs.5,000/-, they will have to serve additional six months' simple imprisonment, and in case of default in deposit of fine of Rs.3,000/-, they will have to serve additional three months' simple imprisonment, with further direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this case crime number, with this contention that the Trial court failed to appreciate facts and law placed before it and the judgment, dated 26.7.2018, of conviction and sentence, awarded therein, is illegal, perverse and against the weight of evidence on record. It was passed on the basis of surmises and conjunctures.
2. Pramod Kumar, informant, lodged first information report on 6.5.2012, for occurrence of theft in his house, said to have been committed in the night of 5/6.5.2012, which was got registered as Case Crime No.778 of 2012, under Sections 380 and 457 IPC, against unknown persons, at Police Station- Kotwali Lalitpur, District Lalitpur. In his report, he has stated that while he, alongwith his wife, was at his village Sataura and his son Umesh @ Sonu was at home, in the night of 5/6.5.2012 at about 3.00 a.m. when his son wokenup, he found that the bunch of keys, kept on his headboard side (Sirhana) on the bed, was not there and unknown thieves, committed theft in the next room, by opening lock of the room and Almirah by keys, and stolen ornaments of his own as well as ornaments of his maternal niece (Bhanji) of golden and silver and Rs.45,000/- in cash. He was informed about this incident of theft telephonically by his brother, residing near his house. Next day, when he returned to Lalitpur, then after, submitted a written report, in the Police Station, which was written by Ram Bharat on his dictation on which he put his signature and report against unknown thieves had been lodged. On 14.8.2012, four accused persons, namely, Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwar, were alleged to have been apprehended whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, were said to have absconded. A joint recovery of golden ornament and cash, as written in the recovery memo, was said to have been made from joint possession of accused-appellants, who were apprehended. First information report was got lodged on 6.5.2012, whereas appellant nos. 1 and 2 said to have been arrested on 14.8.2012 by PW-2, Sunit Kumar. Recovery was also said to have been made from appellant nos. 1 and 2, and appellant no.3 said to have fled from the spot, whereas no such recovery was there, except concocted and planted one. Co-accused, Arvind Pal, Jeetu Parihar, Naval Ahirvar and Shivam Tiwari were discharged on the basis of same evidence in Sessions Trial no.49 of 2013, arising out of Case Crime No.1492 of 2012 whereas appellants, in the present Appeal, have been convicted and sentenced, vide impugned judgment. Prosecution failed to prove its case beyond reasonable doubt, even then judgment of conviction was passed. It was a false recovery and false implication. Hence, this Criminal Appeal, with a prayer for setting aside judgment, thereby acquitting the appellants.
3. Heard Sri Nanhe Lal Tripathi, learned counsel for the appellant and learned AGA, appearing for the State and gone through the impugned judgement as well as record of the Trial court.
4. From very perusal of the record, it is apparent that Case Crime No. 778 of 2012, under Section 380 and 457 IPC, was got registered at Police Station- Kotwali Lalitpur, District Lalitpur on 6.5.2012, for an occurrence of night of 5.5.2012, at the house of informant-Pramod Kumar, being House No.328 situated at Dhorhaghat, Talabpura, District Lalitpur, within the area of Police Station-Kotwali Lalitpur, District Lalitpur, against unknown thieves, for commission of offence of theft of golden and silver ornaments and cash from the house of the informant-Pramod Kumar, on the basis of the first information report, submitted, under signature of informant-Pramod Kumar, scribed by Ram Bharat, through chik first information report, Ka-1 and Paper No.- 6Ka. Sub Inspector, Sunit Kumar, Incharge SOG, Lalitpur, alongwith his team, on an information being received from informer about presence of some thieves at Gandhi Nagar, Nai Basti, alleged to have apprehended four thieves from Gandhi Nagar Nai Basti, Lalitpur, on 14.8.2012, at about 15.15 p.m. from whom recovery of golden and silver ornaments as well as cash money was alleged to have been made. Accused persons alleged to have confessed of committing various occurrences of theft. On the spot, they have confessed to have stolen Rs.45,000/- cash from the house of Pramod Kumar, present informant, out of which Rs.5,000/- cash was still with them. Recovery memo was got prepared and was signed by him, which is Exhibit Ka-2.
5. After investigation, chargesheet was filed and cognizance was taken over it and after hearing learned Public Prosecutor as well as learned counsel for defence, charges for offence, punishable under Section 380, 411 and 457 IPC, were framed. Charges were readover and explained to the accused persons, who pleaded not guilty and requested for trial.
6. Prosecution examined PW-1, Pramod Kumar-Informant, PW-2, Sub Inspector, Sunit Kumar, PW-3, H.C. 26, Amar Singh, PW-4, Sub Inspector-Niraj Kumar Dixit, PW-5, Sub Inspector, Dwarika Prasad Niranjan, PW-6, Virendra Swarup Yadav, and PW-7, Retired Inspector Uday Bhan Singh.
7. Statements of accused persons were got recorded, under Section 313 Cr.P.C. in which prosecution version was denied and false investigation, with no confession, was said. No evidence in defence was led and after hearing arguments of learned Public Prosecutor and the counsel for defence, impugned judgment of conviction for offence, punishable under Sections 380 and 411 and 457 IPC was passed.
8. After hearing over quantum of sentence, impugned sentence was passed.
9. First Information Report, Exhibit Ka-1, lodged by PW-1, Pramod Kumar, on 6.5.2012, was formally proved by him, and it has specifically been lodged against unknown thieves, because this witness was not present at his home at the time of alleged occurrence of theft and in examination-in-chief, this witness has specifically said that on 5.5.2012, he, alongwith his wife, Snehlata, went to Sataura Village, and his son was at his home, situated at Drohaghat, Talabpura, Police Station-Kotwali Lalitpur. He has stated that while he was at his village Sataura and his son Umesh @ Sonu was at home, in the night of 5/6.7.2012, at about 3.00 a.m. when his son wokenup, he found that bunch of keys, kept on his headboard side (Sirhana) on the bed, was not there and unknown thieves, committed theft in the next room by opening lock of the room and Almirah by keys and stolen ornaments of his own as well as ornaments of his maternal niece (Bhanji) of golden and silver and Rs.45,000/- in cash. He has been informed about this incident of theft telephonically by hisother, who resides in my neighbour. Next day, when he returned to Lalitpur, then after, submitted a written report which was written by Ram Bharat on his dictation on which he put his signature and report against unknown thieves had been lodged, which is Paper No.-6 ka (Exhibit Ka-1). In examination-in-chief, this witness has said, after three and half months, on having knowledge that some thieves have been arrested at Cremation Ghat, Nai Basti, he went to the spot where Police kept apprehended four thieves. Some other persons also reached there. It has been told that those thieves confessed to have committed many occurrence of theft and out of stolen cash of Rs.45,000/- from his house, they have distributed Rs.5,000/- amongst themselves.
However, in cross-examination, PW-1, has specifically said that he has not given any particulars of the stolen ornaments. When recovery was made, Police personnel were there and 3-4 thieves were sitting there. He was not aware about it. He has not seen ornaments which were with the Police. He did not identify unknown thieves nor he was able to recognise them on that day and he has seen them first time. Police got his signature on some paper. There was no signature of this witness on any paper, alleged to have been prepared on the spot, because no paper was prepared on the spot. Alleged recovered articles were not produced before this witness at the time of his testimony. No receipt of delivery of article was ever issued by this witness nor it was taken by the Investigating Officer. Meaning thereby, neither recovery was before this witness nor any specific mark of identification of alleged recovered article was there nor any recovery memo was prepared on the spot nor the same were produced before the court during trial nor this witness was previously acquainted with whereabouts of accused persons.
10. PW-2 is Sub Inspector, Sunit Kumar, Incharge SOG, who, in his testimony, has said that on 14.8.2012, on an information received from informer, he, alongwith his team, arrested four thieves, namely, Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwar, whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, were said to have absconded, from Gandhi Nagar Nai Basti, Lalitpur at about 15.15 p.m. from whom recovery of golden and silver ornaments as well as cash money was made. Arrested accused persons have confessed to have committed various occurrence of theft. Accused persons also confessed to have stolen Rs.45,000/- cash from the house of Pramod Kumar, present informant, out of which Rs.5,000/- cash was still with them. Recovery memo was got prepared and was signed by him, which is Exhibit Ka-2. In his cross-examination, PW-2, has made following statement in Hindi:
^^ vfHk;qDrx.k fdlh Hkh ,Q0vkbZ0vkj0 esa uketn ugha gSA ?kVuk dk dksbZ p'enhn lk{kh ugha gSA eky dh dksbZ Hkh dk;Zokgh f'kuk[r ugha djkbZ xbZ gSA QnZ dh eqfYteks dks dkih nh xbZ ;k ugha] eSa ugha crk ldrk gwWA oknh dks ekSds ij fdlus vkus dh lwpuk nh Fkh eSa ugha crk ldrk gwWA eky eqdnek vkt esjs lkeus ugha gSA^^ Accused persons were not named in the first information report. There was no eye witness of the occurrence. Identification proceeding of articles was not conducted. He was not able to tell whether copy of recovery memo was given to the accused persons or not. He could not tell that who gave information to the informant for coming on the spot. Property of the case is not infront of me. (Engish Translation ) In cross-examination, he has said that Arvind Parmar @ Bunty Raja, Rajan and Jitu Parihar were never named in any first information report nor any specific mark of identification of recovered article or stolen article was written in first information report. Meaning thereby, his examination-in-chief and examination-in-cross is with full of variance. Moreso, even single iota regarding offence, punishable under Section 380 IPC or 457 IPC is there, on record, against present convict appellants, except their alleged confessions, that too, when they were apprehended by the Police, which was not admissible in evidence. If entire prosecution case is admitted for the sake of argument, it may be said that those accused persons were apprehended with possession of those recovered articles, but there is neither any specific mark of identification nor there is any corresponding evidence.
11. PW-3 is H.C.-26 Amar Singh, who is a formal witness, proved registration of this case crime number and chik first information report, Exhibit Ka-3, with General Diary Entry Ka-3, to be in his hand writing and under his signature. In his cross-examination, he had specifically admitted that in the written report, neither there was mention of any accused person nor of any eye witness of the occurrence.
12. P.W.-4 is Sub Inspector, Niraj Kumar Dixit, who in his testimony, has said that on 17.8.2012, he has been entrusted with the investigation of Case Crime No.778 of 2012, under Section 457 and 380 IPC against unknown accused. After recording statements of Sub Inspector Sunit Kumar Singh, Constable Narayan Tripathi, Constable Ran Vijay Singh, Constable Om Vir Singh, Incharge Kotwali, Sub Inspector Subhash Chand, Sub Inspector Shamshad Ahmad, Constable Raghvendra Awasthi, Constable Mohd. Imran, informant of the case, Pramod Kumar, witnss Bharat Patel, Akhlesh, Gita, Satendra Singh Parmar, Balram Pachauri, Niraj Nayak and Sanjay Tiwari, and on identification of Incharge, SOG, Sunit Kumar inspected Cremation Ghat, Chandi Mata Temple, and place of occurrence and prepared the site map of the place of occurrence.
Cross-examination of PW-4 was not done by the Defence.
13. PW-5 is Sub Inspector Dwarika Prasad Niranjan. He, in his testimony, has stated that he has been handed over the Investigation of Case Crime No. 778 of 2012. He stated that he has seen the first information report, which had been lodged against the unknown accused persons. Neither there was any eye witness account nor there was any identification in any statement of witness. There was no mention of identification of any accused person in the first information report. He has not arrested accused persons. There is no mention of any specific mark of identification of stolen articles in the first information report nor any identification proceeding was got conducted in accordance with law. Neither he has recorded statement of any independent public witness nor was able to get any independent public witness.
In cross-examination, this witness has said that none of the accused persons were named in the report, no eye witness account of alleged occurrence was there, no specific mark of identification or specification was written in the first information report nor any identification proceeding of alleged recovered stolen articles was ever got conducted nor any mark of identification of accused persons was written in the report. Meaning thereby, his entire testimony is shaky.
14. PW-6 is Virendra Swarup Yadav, Incharge, Police Chowki, Tirai Phatak, Police Station-Tal Baher, Lalitpur. He, in his testimony, has said that he has been handed over investigation of Case Crime No.778 of 2012, while he was posted as Head Constable at P.S. Kotwali, Lalitpur on 6.5.2012. It was lodged against unnamed accused persons. He prepared site map, Exhibit Ka-7 which is under his signature. After investigation, final report was submitted by him.
In cross-examination, this witness has stated that the first information report was against unknown accused persons. Neither there was any eye witness account of the occurrence nor there was identification of any accused person. Informant has not seen occurrence himself. No identification proceeding was conducted for articles nor any identification was mentioned in the first information report. During investigation, no independent public witness was available. Meaning thereby, statement of this witness does not support prosecution case at all.
15. PW-7 is Uday Bhan Singh, Retired Inspector, who, in his testimony, has said that on 27.8.2012, he, alongwith his Police Team, was busy in surveillance duty, in his area, regarding various thefts in the city, and reached near Nehru Nagar, Juvenile Care Centre, then arrested Shivam Tiwari, accused of theft and upon his personal search, Rs.5,000/- in cash, golden ring and one silver Dibiya was recovered. He confessed that these articles are of theft committed by him, alongwith his other companions, on 10.8.2012 and 22/23.7.2012 at the house of Niraj Nayak, Resident of Azadpura and at other places. For identification of recovered articles, informants were called and identification was got done and recovery memo was got prepared, which was signed by the Police personnel, informant and by the accused Shivam Tiwari and a copy whereof was also given to accused Shivam Tiwari. In the present case Shivam Tiwari is not under Appeal and present appellants were not apprehended alongwith this witness. Confessional statement of Shivam, that too, made before the Police personnel, with no recovery from appellants, makes his testimony of no relevance.
16. Meaning thereby, neither identity of recovered article was established nor produced before the court nor alleged recovered article was connected with above occurrence of theft nor it was put under identification proceeding. Hence, the very essential requirement of theft, taking of articles in above theft, with dishonest intention, and possession of the same could not be proved by the prosecution beyond doubt. But, learned Trial Judge has passed the judgment of conviction and sentence, as above, literally, when no cogent evidence was there.
17. Section 457 of Indian Penal Code (IPC) provides that ''whoever commits lurking house-trespass by night, or house breaking by night, in order to committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine, and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years'.
18. In present case, learned Trial Judge has convicted appellants for this offence with sentence, whereas no evidence of lurking house-trespass by night or house breaking by night is there. Theft stands defined in Section 378 IPC. To complete offence, under Section 457 IPC, the ingredient is that burglary, or house breaking by night, should have an intention to commit theft. Theft or an intention to commit theft does actually carry out his intention to commit theft. Theft or an intention to commit theft is in no way a necessary essential ingredient in either of the offences. It frequently happens that lurking house-trespass or house-breaking by night is followed by theft, but the offence can be committed without theft or any intention to commit it. For conviction, under Section 457 IPC, the accused must be proved to have committed lurking house-trespass or house breaking. A charge, under Section 457 IPC must be substantiated by evidence and cannot be assumed from nothing. If a person is charged of house breaking and theft and the commission of theft is established, it would not follow that commission of other offence of house-breaking has also been established. When evidence does not justify a finding that the accused, who entered inside the house, had same intention to commit an offence, it is not trespass. So, then Section 457 IPC goes out of the way.
19. Allahabad High Court in 41 Cr.L.J, 623 (Allahabad), Chhadami v. Emperor, has propounded that in order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. Regarding presumption under illustration (a) to Section 114, Evidence Act, may also attract a graver offence, like one, under 457 IPC, where the accused is found in possession of articles stolen and obtained by house-breaking, it cannot be inferred that he has committed an offence of house-breaking and theft. Presumption, under Section 114, Evidence Act, can be drawn only when the accused, when asked, is unable to explain his possession.
20. In present case, no evidence of house breaking by night or lurking house-trespass by appellants was there, except alleged recovery of cash money, but the same was not established by specific mark of identification to co-relate with the property alleged to have been stolen from above house-breaking or recovery of above cash money from convict-appellants.
20. Section 411 IPC provides that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
21. Apex Court in AIR 1954 SC 39, Trimbak vs. State of Madhya Pradesh, has propounded ingredients of offence, under Section 411 IPC, i.e., ingredients, which prosecution has to establish: (1) that the stolen property was in possession of the accused, (2) that some person other than accused had possession of the property before the accused got possession of it and (3) that the accused had knowledge that the property was stolen property.
22. In present case, neither property was duly identified by any specific mark of identification nor it was established before Trial court by way of producing the same nor its identity was established in identification parade nor the same was recovered in presence of informant, who had disputed alleged preparation of recovery memo.
23. Under Section 380 IPC, essential ingredient for offence, punishable under Section 380 IPC is that accused committed theft, i.e., theft was committed in any building, tent or vessel and that such building, tent or vessel was used as human dwelling or was used for custody of the property. Hence, prosecution has to prove points required for proving of an offence, under Section 379 IPC plus that the moveable property was taken away or moved out of a building tent or vessel and that such building, tent or vessel was being used for human dwelling or custody of moveable property. Intention to take this dishonestly must be proved.
24. In present case, offence of theft was got registered by informant against unknown thieves. Subsequently alleged recovery of alleged stolen ornaments, with cash money, was said to have been made from convict-appellants. Offence of theft or taking of those articles from building, by convict appellants, were not proved by any witness and on the basis of possession and presumption, under Section 114, Evidence Act, offence under Section 380 was deemed to be proved whereas identification of alleged jewellery, with no specific mark of identification, was neither established by way of identification parade, or by way of proving before Trial court.
25. Hence, learned Trial court failed to appreciate facts and law placed before it and thereby passed judgment of conviction and sentences therein, against evidence on record.
26. In view of what has been discussed above, this Criminal Appeal deserves to be allowed.
27. Accordingly, this Criminal Appeal succeeds and is allowed. The impugned judgment and order of conviction dated 26.07.2018, passed by the Trial Court, is hereby set aside and the appellants are acquitted of all the charges. The appellants are in jail. They shall be released forthwith, if not wanted in any other case.
28. Keeping in view the provisions of section 437-A Cr.P.C. appellants are directed to forthwith furnish a personal bond and two reliable sureties, each, in the like amount, to the satisfaction of Trial court before it, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.
29. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.
05.08.2019 bgs/-