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 28.7.2018 and sentences awarded therein by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 49 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 1492 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 seven years' rigorous imprisonment and fine of Rs.10,000/-, each, under Section 380 IPC and three years' rigorous imprisonment, with fine of Rs.5,000/-, each, under Section 411 IPC. In default of deposit of fine of Rs.10,000, they will have to serve six months' simple imprisonment and in default of deposit of fine of Rs.5,000/-, 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 case crime number, with this contention that the Trial court failed to appreciate facts and law placed before it and the judgment, 28.7.2018, 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. Niraj Nayak, PW-1, lodged first information report on 24.7.2012, for occurrence of theft, said to have been committed in the night of 21.7.2012 to 23.7.2012, which was got registered as Case Crime No.1492 of 2012, under Section 380 Indian Penal Code (In short hereinafter referred to as ''IPC'), against unknown 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 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 24.7.2012, whereas appellant nos. 1 and 2 said to have been arrested on 14.8.2012 by the PW-4, 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. 1492 of 2012, under Section 380 IPC, was got registered at Police Station- Kotwali Lalitpur, District Lalitpur on 24.7.2012, at 19.00 PM, for an occurrence of 21/23.7.2012, at the house of informant-Niraj Nayak, situated at Mohalla Azadpura, 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-Niraj Nayak, on the basis of the first information report, submitted, under signature of informant-Niraj Nayak, scribed by Ved Prakash Nayak, through chik first information report, Ka-1 and General Diary Entry, Ka-3.
5. On 2.9.2012, Station Officer, Uday Bhan Singh, alongwith his Police Team, was busy in his surveillance duty, in his area, near Sadan Shah Chauraha, when an information was received from informer that Raheem Khan, a known thief of town, was standing near Gate no.2 of District Hospital, he may be apprehended instantly. Police team rushed to the spot and on the pointing of the informer apprehended Raheem Khan at about 15.00 PM. On being asked, he disclosed his name as Raheem Khan, Son of Sagir Khan, Resident of Gandhi Nagar, Nai Basti, Lalitpur, within the area of Police Station-Kotwali Lalitpur. Upon his personal search, one golden ring of yellow metal, weight about one gram, two pairs of silver inklate of white metal were recovered, which were confessed to have been stolen, in company with Arvind Parmar @ Bunty Raja, Rajan @ Rajendra, Naval Ahirvar, Shivam Tiwari, Arvind Pal and Bunti Dhobi, in the night of 14.6.2012, from the house of Balram Pachauri, situated at Gandhi Nagar as well as from the house of Niraj Nayak on 21.7.2012. Ring was of Balram Pachauri and Payal was of Niraj Nayak. Many other occurrences of theft were also confessed by him. In between, on getting information of his arrest, present informant-Niraj Nayak, and other informants of other case crime numbers, rushed on the spot and they identified their theft articles. Recovery memo was got prepared and he was implicated in the case.
6. On 27.8.2012, Shivam Tiwari was apprehended and from his personal search, Rs.5,000/- in cash and golden ring with silver inklate were recovered. He also confessed in the same way to have committed offence of theft alongwith those accused persons in the night of 10.8.2012 in the house of Kavyan and on 5/6.7.2012 in the house of Sanjay Tiwari. Those informants also rushed on the spot. They identified their articles.
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, Niraj Nayak, informant, PW-2, Constable Hanuman Sharan Srivastava, PW-3, Sub Inspector-Varun Pratap Singh, PW-4, Sub Inspector, Sunit Kumar, PW-5, SHO Uday Bhan Singh, and PW-7, Retired Sub Inspector Shamshad Ahmad.
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 PW-1, Niraj Nayak, on 24.7.2012, 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 on 21.7.2012, he, alongwith his family, went to Dograkala, and his house situated at Azadpura, Police Station-Kotwali Lalitpur, was under lock. When he came back on 23.7.2012, he found lock broken and four golden pendent, weight about teen tola, golden inklates, golden chain, golden vest, three golden ring, one pair silver inklate, four pair big inklate, four pair small inklate, one pair Bichiya, ten silver bangles, one golden and two silver vest were got stolen. This occurrence was reported, in writing, at Police Station- Kotwali Lalitpur, on 24.7.2012, the same is paper number, Ka-5, which has been scribed by his uncle Ved Prakash Nayak and signed by him, proved as Exhibit Ka-1, on 17.9.2013. While being in search of stolen articles, he came to know that some thieves have been apprehended by the Police from Govind Sagar Dam, he went there and found Bunti @ Vinod was present thereat, who, in his personal search, confessed theft and recovery of two silver inklate from his pocket was there. It was identified to be of his own, stolen in above occurrence. It was sealed on the spot and recovery memo was got prepared on which he put his signature. Another accused, Raheem Khan, was apprehended on 2.9.2012, from a nearby place of District Hospital, from whom, one golden Pendent, with one pair silver incklate, of this theft was recovered. These articles were too identified by him. A recovery memo was prepared and got signed by him.
13. However, in cross-examination, PW-1, informant-Niraj Nayak, has specifically said that he was not aware of Bunty @ Vinod or Raheem Khan before that date. Even he was not able to recognise them in the docket of court. He was asked whether they are present or not he refused to identify. In cross-examination, he did not support prosecution nor the alleged recovered articles were produced in the court nor were got identified by this witness. He said that he had not read above recovery memo over which he had put his signature. Police had taken him from his home and got his signatures over few papers. Meaning thereby, the sole witness, who was a witness of identity of alleged recovered article, did not support prosecution case or alleged recovery. He is untrustworthy witness.
14. PW-2, Constable Hanuman Sharan Srivastava, a formal witness, proved registration of this case crime number and chik first information report, Exhibit Ka-2, 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 there was no mention of articles alleged to have been recovered or specific mark of identification of same were not entered in General Diary Entry nor is aware of deposit of any other sealed article on above date at Police Station, i.e., alleged deposit of alleged sealed recovered article is being doubted by this witness.
15. PW-3 is Sub Inspector Varun Pratap Singh, who is witness of fact of alleged recovery, which was alleged to have been made on 27.8.2012, that too, from possession of Shivam tiwari whereas this Appeal is not by Shivam Tiwari, rather it is by three appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra and Raheem Khan for whom this witness is of no avail. Name of these appellants has not been told by Shivam Tiwari, because same has not been said by this witness in his testimony in examination-in-chief. In cross-examination, the place of alleged recovery and time of above alleged recovery, boundary of place of above recovery and presence of witness to identify alleged recovered articles could not be replied by this witness, rather he has said that identification parade of alleged recovered articles was not got conducted.
16. P.W.4 is Sub Inspector, Sunit Kumar, who has formally proved recovery memo, Exhibit Ka-4, but this recovery is with no independent public witness nor it has been said that the informant, Niraj Nayak, was present on the spot to identify above recovered golden ornaments. In cross-examination, he 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 nor this witness was capable to reply as to whether copy of the recovery memo was given to the accused persons or not, whether informants was present on the spot or not or who summoned them, all is not under his knowledge. Meaning thereby, his entire testimony is shaky.
17. PW-5 is SHO-Uday Bhan Singh, who, in his testimony, has said about apprehension of Shivam Tiwari from Jail Tiraja, Burhwar Road, and alleged recovery from his possession. Though he had said that present informant, Niraj Nayak, and Balram Pachauri etc. wee present on the spot, who identified alleged recovered articles to be of their own, whereas this fact has not been accepted by PW-1, Informant-Niraj Nayak, who has not supported prosecution case. Alleged recovery memo, Ka-6 and Ka-7, is full of doubt.
18. PW-7 is Investigating Officer, Sub Inspector- Shamshad Ahmad. He has formally proved Ka-8, site map, Exhibit Ka-9, Ka-10, Ka-11, Ka12, Ka-13 and Ka-14, i.e., Police Papers. But, in cross-examination, he has said that '''इस केस की विवेचना मुझे दि0 24-7-2012 को प्राप्त हुई FIR अज्ञात में दर्ज हुई थी। FIR में चोरी गये माल की कोई शिनाख्त नहीं लिखी गई थी। मेरे सामने मुल्जि. राजेन्द्र से कोई माल बरामद नहीं हुआ था।' This investigation was handedover to me on 24.7.2012. First Information Report was against unknown thieves. No mention of any specific mark of identification of theft articles was written in the first information report nor any recovery was made from the accused, Rajendra, infront of me. (English Translation of statement of PW-7).
19. 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.
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 28.07.2018, 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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