Allahabad High Court
Arvind Parmar @ Bunty And 2 Others vs State Of U.P. on 5 August, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment Reserved on 31.7.2019
Judgment Delivered on 5.8.2019
Case :- CRIMINAL APPEAL No. - 5204 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 25.7.2018 and sentences awarded therein by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 50 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 1420 of 2012, under Sections 380, 411, 413 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 and three years' rigorous imprisonment, with fine of Rs.3,000/-, each, under Section 411 IPC. In default of deposit of fine of Rs.5,000, they will have to serve six months' additional simple imprisonment and in default of 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, 25.7.2018, 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. Sanjay Tiwari-Informant, PW-1, has lodged first information report on 14.7.2012, for occurrence of theft, said to have been committed in his house, in the night of 5/6.7.2012, which was got registered as Case Crime No.1420 of 2012, under Section 380 Indian Penal Code (In short hereinafter referred to as ''IPC'), against unknown accused persons, at Police Station- Kotwali Lalitpur, District Lalitpur. On 14.8.2012, arrest of Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwar, was alleged to have been made whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, were said to have absconded. A joint recovery of golden ornament and other stolen goods, 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 14.7.2012, whereas appellant nos. 1 and 2 said to have been arrested on 14.8.2012 by PW-4, SHO-Uday Bhan Singh, alongwith, PW-3 and Sub Inspector Sunit Kumar, Incharge SOG, and his team. 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.50 of 2013, arising out of Case Crime No.1420 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. 1420 of 2012, under Section 380 IPC, was got registered at Police Station- Kotwali Lalitpur, District Lalitpur on 14.7.2012, at 16.30 PM, for an occurrence of theft occurred in the night of 5.7.2012, at the house of informant-Sanjay Tiwari, being House No.67/1, situated at Devgarh Road, Gandhi Nagar, 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 as well as other ornaments, ATM cards, wrist watch and cash, on the basis of the first information report, submitted, under signature of informant, through chik first information report, Ka-1 and Paper no.-4Ka.
5. 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. A Police Team, led by him, alongwith SHO-Uday Bhan Singh, proceeded for Chandi Mata Temple. On reaching at Cremation Ghat, Chandi Mata Temple, gang of thieves was found sitting thereat. Police Team rounded them up and apprehended four persons at 13.15 PM. On being enquired about their names, one told his name Arvind Parmar @ Bunty Raja (Appellant no.1), other one told his name Rajan (Appellant no.2), third one told his name Jeetu Parihar and fourth one told his name Naval Ahirvar. On their personal search, one pair ear ring of informant of present cases crime number was recovered from accused, Jeetu Parihar. However, Shivam Tiwari, Arvind Pal, Banti Dhobi and Raheem managed to escape from the spot. Recovered articles were sealed and recovery memo, Exhibit Ka 4, was got prepared on the spot, which was signed by the Police personnel present there, on the basis of which this implication was got made.
6. On 27.8.2012, Shivam Tiwari was apprehended by SHO Uday Bhan Singh, on an information being received from the informer and from his personal search, Rs.5,000/- in cash and golden ring with silver inklate were recovered. On being asked, he also confessed in the same way to have committed offence of theft alongwith other accused persons, namely, Arvind Pal, Rajan, Jitu Ahirwar, Naval Ahirvar, Arvind @ Bunty Dhobi and Raheem in the night of 10.8.2012 in the house of Kalyan, in the night of 22/23.7.2019, in the house of Niraj Nayak, and also committed theft on 5/6.7.2012 in the house of Sanjay Tiwari, present informant. Those informants also rushed on the spot. They identified their articles. Recovered three articles were sealed separately and recovery memo, Exhibit Ka-5, was prepared and a copy thereof was also given to the accused persons.
7. After investigation, chargesheet was filed and cognizance was taken over it. As offence, under Section 413 was exclusively triable by the court of Sessions, hence 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, 411 and 413 IPC, were framed. Charges were readover and explained to the accused persons, who pleaded not guilty and requested for trial.
8. Prosecution examined PW-1, Sanjay Tiwari, informant, PW-2, Head Constable Chet Ram, PW-3, Retired Sub Inspector, Shamshad Ahmad, PW-4, S.H.O., Uday Bhan Singh, PW-5, Retired Sub Inspector Shamshad Ahmad, and PW-6, Retired Sub Inspector, Sahdev Singh.
9. 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 and 411 IPC and judgment of acquittal, under Section 413 IPC was passed.
10. After hearing over quantum of sentence, impugned sentence was passed.
11. No appeal by the State against judgement of acquittal for offence, under Section 413 IPC is there.
12. First Information Report, Exhibit Ka-1, was lodged by the informant, Sanjay Tiwari, on 14.7.2012, 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 it so happened that while on 5.7.2012, when, he, alongwith his family, went to out of his house and his house was under lock, in the night of 5/6.7.2019, occurrence of theft took place, in his house, by breaking of lock. When he came back on 6.7.2012, he found lock broken and house hold articles were scattered here and there. On checking, he came to know that one silver box, one bunch of keys, one pearl necklace, one simple necklace, two pair ear rings, about 8-10 silver coins, one ring of Panna, Manik, Munga and Moti, American Diamond Jewellery, about one dozen precious Nag, one Reebok wrist watch, cash and other broken golden items as well as precious articles, and ATM Cards of his wife and his son were stolen by unknown thieves. This occurrence was reported, in writing, at Police Station- Kotwali Lalitpur, on 14.7.2012, the same is paper number, Ka-5, which has been scribed and signed by him, proved as Exhibit Ka-1, on 24.10.2013. While being in search of stolen articles, he came to know that some thieves have been apprehended by the Police from near Bachcha Jail Road, Lalitpur, and he reached on the spot. It has been told to him that one accused, namely, Shivam Tiwari, has been apprehended from whom silver box (Dibbi) stolen from his home has been recovered.
13. However, in cross-examination, PW-1, informant, has specifically said that he was not aware about whereabouts of any accused. He has not seen anyone while committing theft. Stolen articles were not produced before him. Silver box was recovered at Bachcha Jail Road. He has lodged first information report against unknown thieves and no one was named therein. He has given report in writing on 10.7.2012. Delay in lodging report occurred because he was making efforts to have some information on his own. He denied of having knowledge about accused, Shivam Tiwari, nor recognised him. No recovered article was handedover to him. In cross-examination, he did not support prosecution nor alleged recovered article were produced in the court nor were got identified by this witness. Meaning thereby, the sole witness, who was a witness of identity of alleged recovered article, did not support prosecution case or alleged recovery. Thereby, his testimony is of no help to prosecution.
14. PW-2, Head Constable Chet Ram, a formal witness, proved registration of this case crime number and chik first information report, Exhibit Ka-2, Paper No.-4 Ka, to be in his hand writing and under his signature. In his cross-examination, he had said that the first information report was against unnamed thieves, nor there was mention of any eye witness nor there was any specific mark of identification of stolen articles nor any paper of ownership of stolen articles were also not submitted. By whom, stolen articles were being used or how much old those articles were also not disclosed. Delay in lodging first information report was also not explained. Thus, testimony of this witness if of no relevance to prosecution case.
15. PW-3 is retired Sub Inspector, Shamshad Ahmad, who is witness of fact of arrest of accused persons and recovery of articles. He, in his testimony, has said that, while he was posted in Police Station Kotwali, Lalitpur, Incharge-SHO, Uday Bhan Singh, called him at Varni fourway junction, alongwith Sub Inspector, Sunit Kumar, and on the basis of information, receiving from informer, has reached Cremation Ghat, near Chandi Mata Temple, where a gang of thieves was found sitting. They were rounded up and arrested and on being asked to disclosed their identity, they disclosed their names as Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwa. From personal search of Jeetu Parihar, one pair ear ring was recovered. Other stolen articles were also recovered from them. Shivam Tiwari, Arvind Pal, Bunty Dhobi and Raheem Khan, appellant no.3, were said to have absconded. Recovered articles were sealed and a recovery memo was got prepared on the spot, which is Exhibit Ka-4. However, in cross examination, this witness has stated that in the first information reports, name of the accused was not mentioned nor any mark of identification of stolen articles was given nor identity of accused was given nor any proceeding for identification of recovered article was conducted. He did not remember, who gave information to the informant to come on the spot. Case property was not before him. Copy of the recovery memo was not given to the accused. There was no prior criminal history of accused-persons before the arrest. Meaning thereby, there was no specific mark of identification of recovered article nor any proceeding for identification of recovered article was got conducted, i.e., recovery of articles is doubtful.
16. PW-4 is SHO Uday Bhan Singh, who, in his testimony, has said that on 27.8.2012, while he was on surveillance duty, alongwith his team, at about 15.55 pm, when came to Nehru Nagar from Kotwali, informer gave information that leader of thieves is moving from Devgarh Road to Bachcha Jail Road, Police Team followed him and arrested the accused at about 19.30 pm, at Jail Triwayjunction, while moving towards Burhwar Road. He told his name Shivam Tiwari. On personal search, Rs.5,000/- and one ring of gold of 1.5 gm as well as silver Dibiya was recovered from him. On enquiry being made regarding articles, he told that he, alongwith his companions, namely Arvind Pal, Rajan, Jeetu Parihar, Naval Ahirwar, Arvind @ Banty, Banti Dhobi and Rahim, committed theft on 10.8.2012 in the house of Kalyan. In distribution of stolen articles, he got Rs.5,000. He also committed theft in the house of Niraj Nayak in the night of 22/23.7.2012 and he got ring as his share in distribution of stolen articles. He also confessed to have committed theft in the house of Sanjay Tiwari, present informant, on 5/6.7.2012 and got Silver Box (Chandi ki Dibiya) as his share. All these occurrence of theft have been committed by them, together. On receiving information of his arrest of accused, informant reached on the spot and identified recovered article. Thenafter, all the recovered articles were sealed, separately, and recovery memo was got prepared on his dictation by Sub Inspector, Varun Pratap Singh, which is Exhibit Ka-5.
However, in cross examination, this witness has said that the recovered article from accused, Shivam Tiwari, was not produced before the court. Though he counted the currency notes, but did not remember of which denomination those currency notes were. Recovered golden ring was not weighed by him, though accused told weight of the ring as 1.5 gm. Accused was not named in any first information report. There was no independent public witness nor any identification proceeding for any accused was got conducted nor identification proceeding for recovered article was conducted. No identification or age of any accused was given in the first information report nor anyone has seen them at the place of occurrence. Articles, which were recovered from accused, are generally found in every house. 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. In the present case Shivam is not under Appeal and present appellants were not apprehended alongwith this witness. Confessional statement of Shivam, that too, made by the present witness, before the Police personnel, with no recovery from appellants, makes his testimony of no relevance. Hence, under this evidence on record, offence, punishable under Section 411 was not made out.
18. PW-5 is retired Sub Inspector, Shamshad Ahmad. He also gave his testimony as PW-3, as a witness of fact of arrest of Shivam Tiwari and recovery of articles from him. He, in his testimony as PW-5, has said that on 14.7.2012, when he was posted at Kotwali, Lalitpur, he was entrusted with the investigation of Case Crime No. 1420 of 2012. He inspected place of occurrence and prepared site map and site plan, which is under his signature and in his handwriting. It is marked as Exhibit Ka-6. In his cross-examination, he has said that he has prepared site map and site plan, but there was no mention of name of any accused person in first information report. Informant has not produced any receipt of stolen articles. Persons of nearby place have not seen occurrence of theft. Testimony of this witness also does not support prosecution case.
19. PW-6 is retired Sub Inspector, Sahdev Singh, who, in his testimony, has said that he has been entrusted investigation of Case Crime No. 1420 of 2012, under Section 380 IPC. Statements of accused persons, informant and other witness have been recorded by him, and site plan as well as site map, were in his writing, which are paper nos. 12Ka/2 and 12K/3 and those are in his handwriting and under his signature.
In cross-examination, this witness has said that Case Crime Number 1420/12 was got lodged on 14.7.2012 in which none has been named as accused nor informant has seen occurrence of theft. Identification parade of accused persons nor identification proceeding of recovered articles was conducted. No specific mark of identification of stolen articles was mentioned in the first information report. At the time when statement of accused persons was recorded, there was no independent public witness. After one and a half month of recovery, he has got recorded the statements of accused, but could not obtain their signature because they were in Jail. Accused were not named in any case prior to this case nor any independent person has taken their name. Arrest of accused persons was made, before investigation being entrusted to him. There was no independent eye witness account of occurrence, who has seen occurrence. Meaning thereby, his entire testimony appears to be of no relevance to prosecution and is shaky and does not support prosecution case at all.
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 PW-1-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 25.07.2018, 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/-