Allahabad High Court
Arvind Parmar @ Bunty Raja And 2 Others vs State Of U.P. on 1 October, 2019
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement Reserved on 18.09.2019 Judgement Delivered on 01.10.2019 Case :- CRIMINAL APPEAL No. - 5240 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 04.08.2018 and sentences awarded therein, by the Court of Additional Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 25 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 1150 of 2012, under Sections 457, 380, 411, 413 of 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 Raheem Khan, have been sentenced with seven years' rigorous imprisonment and fine of Rs.10,000/-, each, under Section 380 IPC, and twelve years' rigorous imprisonment, with fine of Rs.20,000/-, each, under Section 457 IPC and rigorous imprisonment of three years, with fine of Rs.5,000/-, each, under Section 411 of IPC. In case of default of deposit of fine of Rs.20,000/-, they will have to serve one year's additional simple imprisonment, in case of default of deposit of fine of Rs.10,000/-, they will have to serve six months' additional simple imprisonment and in case of default of deposit of fine of Rs.5,000/-, they will have to undergo three months additional simple imprisonment, with a 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 conjectures.
2. The occurrence of theft had been said to have taken place in the night of 10.06.2012 and a first information report was lodged on 11.6.2012 as Case Crime No.1150 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 and cash, was said to have been made from joint possession of arrested accused persons. Though the occurrence was said to have occurred on 10.06.2012, and first information report was lodged on 11.6.2012. PW-2, Sunit Kumar, had stated that the arrest of appellant nos. 1 and 2 was made on 14.8.2012 and alleged recovery was said to have been made from them, while appellant no.3 was said to be absconded, 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-9, dated 11.06.2012, was got lodged by the informant, Akhilesh Kumar Sharma, at Police Station-Kotwali Lalitpur, District Lalitpur, with this contention that in the night of 10.06.2012, while, in connection with delivery of his wife, he was at District Hospital, Lalitpur, where, in the night at 12:20 PM, delivery of wife took place, whereafter the informant came to his home in the morning at 6:45 AM and found that the lock of main door and locker of the Almirah was broken and articles, such as, six bangles, weight about 4-5 Tola, one garland (Haar), weight about 37 gm, one Mangasutra weight 15 gm, two chains, weight about 70 gm, two pair ear rings (Jhumka), weight about 20 gm, six rings of male and five rings of ladies, weight about 30 gm, and one Bedi of 02 gm, all of gold, and 20 silver coins, ten pairs anklet, one Kardhan of silver, weight about 1.5 kg, one chain of Ventmen jewellery and Rs.2,70,000/-, cash, kept in the Almirah, were stolen by thieves. His house, at second and third storey, was under construction, which was being constructed by Masons Gangaram and Kalyan, who left the construction work in midway. Informant expressed his suspicion of theft, over them. He submitted written complaint, in his own handwriting, at Police Station Kotwali, Lalitpur, which has been registered. Case Crime No.1150 of 2012, under Sections 457 & 380 IPC was got registered, against Gangaram and Kalyan, on 11.06.2012.
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, who have committed various thefts in the city, with stolen articles, near Cremation Ghat, Chandi Mata Temple. This was immediately communicated to Inspector, Incharge, Kotwali Lalitpur, District Lalitpur, Sri Uday Bhan Singh and was called to Varni Four-way Junction. A Police Team led by him, with the 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, Resident 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, Balram Pachauri, Niraj Nayak, Sanjay Tiwari and many others reached on 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 Sharma, two ear rings were stolen from the house of Sanjay Tiwari, Pendent of Mangalsutra was stolen from the house of Niraj Nayak, 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. Apprehended persons were made known about commissions of offence by them under above Sections of 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 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, Akhilesh Kumar Sharma, informant, PW-2, Sunit Kumar, Sub Inspector, PW-3, Shamshad Ahmad, retired Sub Inspector, Investigating Officer and PW-4, H.C., Amar Singh, scribe of Chik.
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. Written First Information Report, Exhibit Ka-1 (Paper No. 5Ka), was formally proved by PW-1, informant-Akhilesh Kumar Sharma, and it has been lodged against labours, working at his home, on the basis of suspicion, because this witness was not present at the place of occurrence, i.e., at the time of alleged occurrence of theft.
In examination-in-chief, this witness has said that in the night of 10.06.2012, while, in connection with delivery of his wife, he was at District Hospital, Lalitpur, where in the night at 12:20 PM, delivery of wife took place. On coming back to home next day, in the morning at 6:45 AM, he found that the lock of main door and locker of the Almirah was broken and articles, such as, six bangles, weight about 4-5 Tola, one garland (Haar), weight about 37 gm, one Mangasutra of 15 gm., two chains, weight about 70 gm, two pair ear rings (Jhumka), weight about 20 gm, six rings of male and five rings of female, weight about 30 gm, and one Bedi of 02 gm, all of gold, and 20 silver coins, ten pairs anklet, Kardhan (an ornament of waist) of silver, weight about 1.5 kg, one chain of Ventmen jewellery and Rs.2,70,000/-, in cash, kept in the Almirah, was taken away by the the thieves. Construction work at upper storeys of his house was being carried out. He expressed suspicion for occurrence of theft on labour, who were doing construction work in his house. Further on 14.8.2012, on coming to know that Police called him at Cremation Ghat where Police personnel and members of S.O.G. (Special Operation Group) were present, he went there. On reaching there, he found that, apart from Police Personnel, Premlata Jain, Balram Pachauri, Niraj Nayak, Satendra Parma and other persons, not known to him, were present. Four accused persons, namely, Naval Ahirwar, Jitu, Arvind and Rajan, who were apprehended by the Police, were sitting thereat. Accused, Naval, confessed to have stolen two rings and Rs.20,000/- in cash, from his house. Recovery memo was written and prepared, on the spot, at about 3.30 PM. Thenafter, he came back and not gone there again nor signed recovery memo. Lateron, what Police personnel written in recovery memo, he was not aware.
On the date when occurrence of theft was reported, at about 11 AM, a lady Police personnel came there and took specimen of finger prints of door and locker of the Almirah. Bundle of sealed articles were produced before the court and upon opening of said Bundle, four small Bundles were found. Upon one Bundle, Crime Number 1150/12 was written. On being opened, out of this bundle, three rings, one Pendle of yellow metal, 28 currency notes of Rs.500/- and 18 currency notes of Rs.1,000/-, total amount of Rs.32,000/- were recovered. Witness identified two small rings, being stolen from his house. He said that total Rs.2,70,000/-, in cash, were stolen from his home, which were in denomination of Rs.500/- currency notes and Rs.1,000/- currency notes, which were recovered from possession of accused-Naval, and have been identified by him. Rings have been exhibited as Exhibit 1 & 2, currency note of Rs.5,00/- has been exhibited as Exhibit 3 and currency note of Rs.1000/-, has been exhibited as Exhibit-4.
On being cross-examined, this witness has stated that he did not see anyone committing theft. In the first information, he did not mention that how many currency notes were of Rs.1000/- denomination and how many were of Rs.5,00/-, however, it was told to the Sub Inspector that currency notes were of which denomination. If it was not written in the report, he could not disclose reason. Receipt of stolen articles were with him, but this fact was not written by him in the report. He could not tell the boundary of the place where recovery was made and did not sign the recovery memo. Currency notes appear to be same, which are available with everyone. It was wrong to say that it was a false recovery and by showing false recovery, accused persons were arrested. In the testimony, this witness has stated that he never identified recovered articles in the court nor identified accused persons. His statement was recorded by the Sub Inspector on the day of theft of occurrence. His statement could not be recorded in the court. He read recovery memo and his statement in the court itself.
Meaning thereby, informant neither has seen anyone, while committing theft in hishouse nor was there at the time when locks of his house were broken nor any accused was produced before him for identification. Neither any recovery was made before this witness nor any specific mark of identification/denomination of alleged recovered article/currency notes was there nor any recovery memo was signed by him nor the same were produced before the court during trial nor this witness was previously acquainted with accused persons. Thus, this witness does not support prosecution case at all and prosecution failed to prove case set up by it, so far as testimony of this witness is concerned.
12. PW-2, Sub Inspector, Sunit Kumar, in his testimony, has stated that on 14.8.2012, he, alongwith other Police personnel apprehended four persons at Cremation Ghat, Gandhi Nagar, Nai Basti, Lalitpur, on the information received from informer. They disclosed their names as Arvind @ Bunty, Rajan, Jitu Parihar and Naval. From their possession ornaments of gold and silver as well as cash was recovered. They confessed to have been involved in various occurrence of theft in the district of Lalitpur. Many persons, including Akhilesh Sharma, informant, reached on the spot. Akhilesh Kumar Sharma said about theft of Mangalsutra, Gold Bangles, ring, Bedi, 20 coins of silver, ten pairs anklet of silver, one chain of Vintex and Rs.2,70,000/- in cash. Out of stolen articles, two rings of gold and Rs.20,000/- were recovered. He got the recovery memo prepared on the spot, which bore his signature. The original memo was enclosed in S.T. No. 53/13 and from that file a photo copy of the same was got prepared, which had been placed on the record of this file. It was exhibited as Exhibit Ka-2.
On being cross-examined, this witness has stated that accused-persons have not been named in any F.I.R. There was no eye-witness account of the incident. No identification proceedings of recovered articles had been conducted. He did not remember whether copy of the recovery memo had been provided to the accused persons or not. It was also not known to him as to who made call to the complainants to come to the spot. The recovered articles were not produced before him. It is wrong to state that the accused persons had been falsely implicated after arresting them from their homes and showing false recovery.
Accused persons were not named in the first information report nor any identification parade was conducted in accordance with law nor identification proceeding of recovered articles was got conducted nor copy of the recovery was given to the accused persons nor there was any eye witness account of the occurrence of theft. Meaning thereby, it was a cooked-up and concocted story set up by the Police and as such testimony of this witness neither supports version of the prosecution in any way nor is of any relevance to the case set up by the prosecution.
13. PW-3, Shamshad Ahmad, retired Sub-inspector, in his testimony has stated that on 2.11.2006, while having been posted as Sub-inspector at P.S. Kotwali, Lalitpur, he has been entrusted with investigation of the Case Crime no. 1150/12, U/s 457, 380, 411 I.P.C. against unknown accused persons. After receiving copy of the report, Chik F.I.R., he got recorded statement of the scribe and that of the complainant, namely, Akhilesh Kumar, thenafter, inspected the place of incident, the house of the complainant, wherein occurrence of theft said to have taken place and prepared the site-plan on the spot, which was paper no. 12ka/5, in his handwriting and signature. It was marked as Exhibit Ka-3.
On 14.8.2012, while, he, along with S.H.O. Uday Bhan Singh, was engaged in search of the wanted criminals in the area, they were called by the S.O.G. In-charge Sumit Kumar at Varni Chauraha, and after being told the purpose, reached at the temple of Chandi Mata and parked the official Jeep and reached Cremation Ghat, where, upon pointing of the informer, found accused persons sitting thereat. Thereupon, the Police Team apprehended persons threat, along with articles. Site-plan, paper no. 12ka/4, of the place, where the accused persons had been apprehended, was got prepared, whiche was in his handwriting and under his signature. It was Exhibit Ex.Ka-4. He had entered the copy of recovery of the articles in the C.D. and recorded the statements of accused persons namely Nawal Kishore, Bunty, Jeetu Parihar. On 18.8.2012, having received the copy of the report of the arrested accused persons- Arvind Pal and Raju Soni, they were taken into custody in connection with case and thereafter after making entry in respect thereof statements of accused Raju Soni and Arvind Pal, were recorded. On 20.8.2012, statement of Const. Sumit Kumar, Const. Ranveer, Const. Arun Kumar, Const. Omveer, SHO Uday Bhan Singh, SI Subhash Yadav, Const. Raghvendra Singh, Const. Sumit Kumar, Const. Imran were recorded and site plan paper no-12Ka/4, Exhibitt Ka-4, of the place, where the accused have been stated to be arrested, was also got prepared. On 03.9.12, report with regard to arrest of accused Raheem was received and an entry to that effect has been made in the Case Diary, and he has been taken into police custody. On 18.9.12, the statement of the accused Banti @ Vinod has been recorded after being arrested. Thereafter papers with regard to statement of witnesses and the arrest memo were prepared. Statement of Uday Bhan Singh and other police personnel accompanying him, SI Subhash Chandra Yadav, Const. Bahadur Singh, SI Varun Pratap Singh, Const. Aditya Kumar and Saroj Kumar were recorded. He also inspected place of occurrence and prepared site plan, bearing his signature, Exhibit Ka-5. On being pointed by the SHO Uday Bhan Singh, inspected the gate no-2 of the District Hospital. On 17.9.12, inspected the place of occurrence on being pointed out by Uday Bhan Singh and prepared the site plan of the spot, which was in his handwriting and under his signature. Same was paper no-7Ka and was exhibited as Exhibit Ka7. Thenafter, recorded statement of Neeraj Nai and Rajesh Sharma. On 20.9.12, on the basis of all the evidences, filed the charge sheet, marked as Exhibit Ka-8, which was in his handwriting and under his signature.
In his cross-examination, this witness has stated that he did not arrest the accused Raju @ Rajendra Soni, nor did recover any booty from him. He found the accused in custody in the police station. He made entries in the Case Diary. After having recorded his statement in the police station, filed the charge sheet against him in this crime number. No case property was produced before him. However, he denied of having filed a false chargesheet against accused Raju @ Rajendra Soni.
On being cross-examined, further, this witness, has stated that no FIR was lodged against the above accused persons, nor has anyone stated in first information report having seen any one, committing occurrence of theft, nor was there any mark of identification of any accused person nor there was any eye witness account of occurrence. Any specific mark of identification of stolen article was also not mentioned in the report. Neither identification parade of the accused-persons nor of articles was conducted. While mentioning fact of calling the complainant on the spot, name of the police personnel, who called him, was not mentioned. Recovered articles, which were shown to have been recovered, are usually available in every family and are also available in the market. Entries made in the G.D. by him on 02.11.2006 were not before him nor he remember what was the number of that G.D. Whose statements were recorded by him at what time in the C.D. is not under his remembrance.
In the testimony of this witness, who has Investigated this case crime number, there appears to be material contradiction. In his testimony, this witness has stated that neither the accused persons were arrested by him nor there was any identification of the accused persons nor of recovered articles. In the first information report, there was suspicion on the labours, who were working in the house of the complainant, whereas appellants, herein, were made accused persons. Neither accused persons were named in the first information report nor there was any eye witness account of occurrence of theft, which took place in the house of the complainant. Meaning thereby, testimony of this witness could not have been relied upon by the trial court, because of having contradiction. Thus, testimony of this witness appears to be shaky and is not worth credit, thereby, does not support prosecution case in any way.
14. P.W.-4, HC. 26, Amar Singh, in his testimony, has stated that while he was posted as Head Moharrir at Lalitpur Kotwali on 11.6.2012, complainant Akhlesh Kumar Sharma had given an application, about this incident, on which he had lodged case crime no. 1150/2012 u/s 459, 380 IPC vs Ganga Ram and others. Chik FIR was in his handwriting, under his signature, which was marked as Exhibit Ka-9.
In his cross-examination, he stated that he did not register any case against Shivam that day nor did he remember the name of the Kotwal who was there. Other than the complainant, no one else had accompanied him to the police station. In written complaint, which was given for registration of first information report, name of any accused person was not mentioned nor there was any eye witness account of occurrence nor there was any mark of identification of accused. Who wrote complaint was not known to him. In the testimony, this witness has formally proved registration of first information report wherein name of accused persons was not mentioned nor any specific mark of identification of accused persons or of stolen articles was there nor there was any eye witness account of the occurrence. Meaning thereby, testimony of this witness is of formal nature and is of not much relevance to the prosecution.
15. After careful scrutiny of testimonies of the witnesses produced by the prosecution, it is clear that testimonies of witnesses produced by the prosecution, is with full of variance with material contradictions. 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 nor any independent public witness account was there and as such in absence of any such evidence, prosecution miserably failed to prove its case.
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 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.
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 and one gold ornament, but the same was 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 breaking locks of house and locker of the Almirah or recovery of cash from convict-appellants.
21. 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.
22. 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.
23. 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 nor any independent public witness was there.
24. 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.
25. 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.
26. 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.
27. In view of what has been discussed above, this Criminal Appeal deserves to be allowed.
28. Accordingly, this Criminal Appeal succeeds and is allowed. The impugned judgment and order of conviction dated 04.08.2018, 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.
29. 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.
30. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.
01.10.2019 bgs/-