Allahabad High Court
Arvind Parmar @ Bunty And 2 Others vs State Of U.P. on 20 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1313, 2019 (6) ALJ 397
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 08.08.2019 Judgement Delivered on 20.08.2019 Case :- CRIMINAL APPEAL No. - 5202 of 2018 Appellant :- Arvind Parmar @ Bunty Raja 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 23.07.2018 and sentences awarded therein, by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 44 of 2013 (State vs. Arvind Parmar @ Bunty and others), arising out of Case Crime No. 1617 of 2012, under Sections 457, 380 and 411of Indian Penal Code (Hereinafter in short referred to as ''IPC'), Police Station- Kotwali Lalitpur, District Lalitpur, whereby convict-appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra and Rahim Khan have been sentenced with five years' rigorous imprisonment and fine of Rs.5,000/-, each, under Section 380 IPC, and 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/-, under Section 411 IPC. In case of default of deposit of fine of Rs.10,000, they will have to serve one year's simple imprisonment, in default of deposit of fine of Rs.5,000/-, they will have to serve six months' simple imprisonment and in default of deposit of fine of Rs.3,000/-, they will have to serve three months simple imprisonment, with further direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this very case crime number, with this contention that the Trial court failed to appreciate facts and law placed before it and the judgment 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. The occurrence had been said to have taken place in the night of 8.8.2012 and a first information report was lodged on 13/14.8.2012 as Case Crime No.1617 of 2012, under Sections 457, and 380 IPC, Police Station- Kotwali, Lalitpur, District Lalitpur. Subsequently, arrest of Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwar, was shown to have been made by the Police on 14.8.2012, whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, said to have fled from the spot. Recovery of golden ornaments was said to have been made from joint possession of arrested accused persons. Though the occurrence was said to have occurred 8.8.2012, but the first information report was lodged on 14.8.2012. PW-3, Tariq Khan, had stated that the arrest of appellant nos. 1 and 2 was made on 14.8.2012 and alleged recovery of golden ornaments was said to have been made from them, while appellant no.3 was said to have fled from spot, whereas it was a false recovery and false implication. Hence, this Criminal Appeal with above prayer.
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 the First Information Report, Exhibit Ka-1, dated 8.8.2012, was got lodged by the informant, Satyendra Singh Parmar, at Police Station-Kotwali Lalitpur, District Lalitpur, with this contention that on 8.8.2012, while, he, alongwith his wife, was at his in-laws house at Village Bangaria, Police Station Pali, to attend a marriage ceremony and there was none at his house, on 9.8.2012, his land-lord, Uttam Chandra Jain, informed him telephonically that locks of his rooms were broken and household goods were scattered here and there. On receiving information, he immediately rushed to Lalitpur and reached at his room where he found that Rs.80,000/-, in cash, and gold ornaments of about one Tola had been stolen. Unknown thieves opened his double bed (Diwan), broken locks of suitcase and hou goods were scattered here and there. Hence, this report. Case Crime No.1617 of 2012, under Sections 457 & 380 IPC was got registered against unknown thieves on 13/14.8.2012.
5. On 14.8.2012, while SOG Incharge, Sumit Kumar Singh, alongwith his Police Team was on surveillance duty, informer gave information about presence of thieves near Cremation Ghat, Chandi Mata Temple. This was immediately communicated to Inspector, Incharge, Kotwali Lalitpur, District Lalitpur, Sri Uday Bhan Singh and called him to Varni Four-way Junction. A Police Team led by him, with this Inspector, proceeded for Chandi Mata Temple. On being pointed by the informer towards few persons, sitting thereat, Police Team apprehended four persons at 15.15 PM. On being asked to disclose identity, first one told his name Arvind Parmar @ Bunty Raja, reisdent of Nai Basti, Police Station Kotwali, Behind Little Flower School, Lalitpur, from whose personal search, one Mangalsutra of yellow metal, appearing to be gold, with cash of Rs.10,000/-, was recovered, other one disclosed his identity as Rajan, Son of Govind Singh Bundela, Resident of Cremation Ghat, Nai Basti, Police Station Lalitpur, from whom golden chain of yellow metal, with cash of Rs.12,000/- was recovered, third one disclosed his name as Jitu Parihar, Son of Parmanand, resident of Railway Crossing, Gandhinagar, Police Station Kotwali, Lalitpur, from whom, ear ring of gold of yellow metal was recovered, and fourth one disclosed his identity as Naval Ahirvar, Son of Har Naryan, resident of Nehru Nagar, Infront of Masjid, Police Station Kotwali, District Lalitpur, from whom three rings of gold, Rs.32,000/-, in cash, and one Pendent of yellow metal was recovered whereas Shivam Tiwari, Arvind Pal, Banti Dhobi and Raheem managed to escape from the spot. Smt. Prem Lata Jain, Pramod Kumar, Akhilesh Kumar Sharma, Smt. Gita, Satendra Singh Parmar (informant), Balram Pachauri, Niraj Nayak, Sanjay Tiwari and many others rushed to the spot, who identified those apprehended persons to be residents of above locality. Upon being investigated, those apprehended persons confessed offence of theft committed by them and also confessed that Mangalsutra and one golden ring was stolen from the house of Smt. Prem Lata Jain, whereas one golden chain and Rs.2,000/-, in cash, were stolen from the house of Balram Pachauri, two golden rings, with cash of Rs.20,000/-, was stolen from the house of Akhilesh Kumar Sharma, two ear rings were stolen from the house of Sanjay Tiwari, Pendent of Mangalsutra was stolen from the house of Niraj Nayak and Rs.5,000/-, in cash, was stolen from the house of Bharat Patel, Rs.2,000/- was stolen from the house of Gita and Rs.5,000/-, in cash, was stolen from house of Pramod. Remaining stolen articles were taken away by Shubham Tiwari, Arvind Pal, Bunti Dhobi and Raheem. Alleged recovered stolen articles were identified by those public men, who were informants in various cases of theft, lodged by them, being Case Crime Nos.1150/2012, 1210/2012, 2420/2012, 1492/2012, 701/2012, 778/2012, 1613/2012, 1617/2012 and 1612/2012, under Sections 457, 380, 411 and 413 IPC. It was presumed that those accused persons were habitual offenders of theft, hence they were taken into custody and recovery memo was got prepared on the basis of which this implication, under Sections 457, 380, 411 and 413 was made.
6. On the basis of investigation, chargesheet was filed and Magistrate took cognizance over it. As offence, under Section 413 IPC was exclusively triable by the court of Sessions, this file was committed to the court of sessions, where, after hearing learned Public Prosecutor as well as learned counsel for defence. Charges for offence, punishable under Section 380, 457, 411 and 413 IPC were framed. Charges were readover and explained to the accused persons, who pleaded not guilty and requested for trial.
7. Prosecution examined PW-1, Satendra Singh Parmar, informant, PW-2, Head Constable, Chetram and PW-3, Sub Inspector, Tariq Khan.
8. Statement 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, 457 and 411 IPC and judgment of acquittal, under Section 413 IPC was passed.
9. After hearing over quantum of sentence, impugned sentence was passed.
10. No appeal, by the State against judgement of acquittal for offence, under Section 413 IPC, is there.
11. First Information Report, Exhibit Ka-1 (Paper No. 5Ka), was formally proved by PW-1, Satendra Singh Parmar 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. In examination-in-chief, this witness has said that on 8.8.2012, while, he, alongwith his wife, was at his in-laws house at Village Bangaria, Police Station Pali, to attend a marriage ceremony and there was none at his house, on 9.8.2012, his land-lord, Uttam Chandra Jain, informed him telephonically that locks of his rooms were broken and household goods scattered here and there. On receiving information, he immediately rushed to Lalitpur and reached at the room where he found that Rs.80,000/-, in cash, and gold ornaments of about one Tola had been stolen. Unknown thieves opened his double bed, broken locks of suitcase and goods were scattered here and there. Hence, a typed report, under his signature, was lodged which was got registered against unknown thieves on 13/14.8.2012.
While he was in search of his stolen articles, on 14.8.2012, he received information about arrest of some thieves by the Police Personnel at Cremation Ghat, Nai Basti, behind Chandi Mata Temple, Lalitpur and when this witness reached there, he found four thieves, apprehended by the Police, were sitting infront of Cremation Ghat (Shamshan Ghat). Apart from him, Akhilesh Sharma, Advocate, Niraj Nayak, Smt. Gita Kushwaha and Pramod Gupta, who were also victim of theft, also reached on the spot. In their presence, Police asked names of those four thieves and on being asked, they disclosed their names as Arvind, Jitu, Rajan and Naval Ahirvar and they also disclosed that their other four accomplices fled away from the spot. From their personal search, stolen articles, golden ornaments and cash money were recovered. They disclosed that Rs.2,000/-, in cash, was stolen from the house of informant. Other persons, who reached there also identified their house-hold articles, ornaments and cash money. Recovered articles were sealed on the spot and recovery memo was also got prepared on which some persons put their signatures.
12. In cross-examination, this witness has categorically said that this report was not against any specific person, rather it was against unknown thieves. He was not aware of either Arvind @ Banty Parmar or other accused persons since before. He was informed by the Police and was called from home thenafter he reached on the spot where he has been informed that the recovery has been made. 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. Thus, this witness does not support prosecution case at all.
13. The other witness, PW-2, Head Constable Chet Ram, who is a formal witness, proved registration of first information report, under his signature, Exhibit Ka-3. This registration of report was against unknown accused persons for offence, punishable under Sections 457 and 380 IPC. In cross-examination, it has specifically been said this witness that the report had been lodged against the unknown thieves. There was no eye witness account nor was there any specific mark identification of any stolen articles nor receipt of stolen articles nor any paper relating to ownership of stolen articles were produced. By whom stolen articles were being used and how much older those stolen articles were also not disclosed in the report. Reason for delay in lodging the first information report was also not disclosed. Meaning thereby, there was delay in lodging first information report of which there was no reason nor there was any specific mark of identification of stolen articles nor there was any eye witness account of incident of theft. The report was against unknown thieves. Thus, testimony of this testimony is of relevance to the prosecution and is of no avail to the prosecution.
14. PW-3 is Sub Inspector, Tariq Khan. He, in his testimony, has said that while he was posted at Police Station Kotwali, Lalitpur, on 13.8.2012, he has been entrusted with investigation of Case Crime No. 1617/2-12, under Sections 457 and 380 IPC, On pointing of informant, he inspected place of occurrence and prepared site plan and site map, Paper No. 16 Ka, Exhibit Ka-4, which were in his hand-writing and under his signature. He recorded statement of scribe of first information report and landlord Uttam Chand Jain. He also prepared site plan and site map of the place, from where accused persons were arrested, which are Paper No. 16-Ka/2 and Exhbit Ka-5. On collecting sufficient evidence against accused persons, he filed chargesheet against them on 22.8.2012, which was Exhibit Ka-6.
15. In his cross-examination, this witness has stated that case crime number 1617/12 was got registered on 13.8.2012, without naming any accused nor anyone has seen occurrence of theft nor identity of any accused was disclosed in the statement of any witness. Accused Jitu, Naval, Arvind @ Bunty, and Rajan were arrested on 15.8.2012. Arrest was made by SOG Incharge, Sunit Kumar Singh, who was accompanied by S.O., Uday Bhan Singh. No specific mark of identification of stolen articles was mentioned in the first information report nor there was any independent public witness nor there was signature of accused on the statement. He did not remember how many articles pertaining to occurrences of theft were recovered from accused persons. Before arrest of accused persons, none of the witness took their names. Neither identification parade of recovered articles nor of accused were conducted. 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 for connecting with above offence of theft was there on record, which was a condition precedent for offence, punishable under Section 411 IPC.
16. 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'.
17. 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 burglar, or house breaker 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.
18. 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.
19. In present case, no evidence of house breaking by night or lurking house-trespass by appellants was there, except alleged recovery of cash, but the same were not established by specific mark of identification or by denomination of currency notes recovered, which were alleged to have been stolen from the house of the informant to co-relate with the property alleged to have been stolen from above house-breaking or recovery of above ornament 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 cash money was said to have been made from convict-appellants. Offence of theft or taking of articles from building, by convict appellants, was not proved by any witness and on the basis of possession and presumption, under Section 114, Evidence Act, offence under Section 380 IPC was deemed to be proved whereas identification of alleged recovered cash, with no specific mark of identification, was neither established, by way of identification parade, or by way of proving it 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 23.07.2018, 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.
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