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 20.07.2018 and sentences awarded therein, by the Court of Additional Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 26 of 2013 (State vs. Arvind Parmar @ Bunty and others), arising out of Case Crime No. 1613 of 2012, under Sections 457, 380, 411, 413 and 511 of Indian Penal Code (Hereinafter in short referred to as ''IPC'), Police Station- Kotwali Lalitpur, District Lalitpur, whereby convict-appellants, Arvind Parmar @ Bunty, 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. In case of default of deposit of fine of Rs.10,000, they will have to serve one year's simple imprisonment and in default of deposit of fine of Rs.5,000/-, they will have to serve six 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 9.8.2012 as Case Crime No.1613 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 Rs.27,00/-, in cash, was said to have been made from joint possession of arrested accused persons. Though the occurrence was said to have occurred 8.8.2012, and first information report was lodged on 9.8.2012. PW-4, Subhash Chandra, 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-2, dated 9.8.2012, was got lodged by the informant, Smt. Gita, at Police Station-Kotwali Lalitpur, District Lalitpur, with this contention that in the evening of 8.8.2012, after putting lock on her Beauty Parlour, she went to her home and next day, i.e., 9.8.2019, she got an information that lock of the shop was broken. After reaching on the shop, she had seen broken lock of the door of the shop and when she entered into the shop, she found that Rs.27,00/-, cash, kept in her Gullak (Piggy Bank), has been stolen. She got the report written by her husband and presented the same at Police Station Kotwali, Lalitpur, which has been registered. Case Crime No.1613 of 2012, under Sections 457 & 380 IPC was got registered against unknown thieves on 9.8.2012.
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, 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 (informant), 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. 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 and 511 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, Smt. Gita, informant, PW-2, Kamlesh, PW-3, Constable-Sushil Kumar, PW-4, S.I. Subhash Chand and PW-5, Sub Inspector, Varun Pratap Singh.
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 IPC and judgment of acquittal, under Sections 411 and 413/511 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 Sections 411 and 413/511 IPC, is there.
11. First Information Report, Exhibit Ka-1 (Paper No. 5Ka), was formally proved by PW-1, informant-Smt. Gita, and it has specifically been lodged against unknown thieves, because this witness was not present at the place of occurrence, i.e., her Beauty Parlour, at the time of alleged occurrence of theft. In examination-in-chief, this witness has said that in the evening of 8.8.2012, after putting lock on her Beauty Parlour, she went to her home and next day, i.e., 9.8.2019, she got an information that lock of the shop was broken. After reaching on the shop, she had seen broken lock of the door of the shop and when she entered into the shop, she found that Rs.27,00/-, cash, kept in her Gullak (Piggy Bank), had been stolen. Hence, a report, written by her husband, under her signature, was lodged, against unknown thieves on 9.8.2012, whereas in her examination in chief, she has said that she has not seen any one while committing theft nor has identified any accused nor any identification parade was conducted. At what time, locks of shop were broken, she did not have any knowledge. Police did not enquire any thing from her, but went on the spot. Meaning thereby, informant neither has seen anyone, while committing theft in her shop nor was there at the time when locks of her shops were broken nor has named any accused person nor any accused was produced before her for identification. Neither any recovery was before this witness nor any specific mark of identification/denomination of alleged recovered article/currency 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 accused persons. Thus, this witness does not support prosecution case at all and the case set up by the prosecution falls flat, so far as testimony of this witness is concerned.
12. PW-2 is Kamlesh, husband of informant, Gita, who written the report of occurrence of theft, which has been signed by the informant and was presented in the Police Station for registration of the first information report. He in his examination-in-chief has stated that in the evening of 8.8.2012, his wife, after locking her shop, came to home. In the morning of next day, residents of the locality informed that the locks of the shop were broken. After reaching on the spot, it was found that Rs.2,700/-, kept in Saving Box (Gullak), was stolen. Report of occurrence of theft was got lodged by his wife in the Police Station. While, in his cross-examination, this witness has stated that he had not seen anyone, committing theft nor identified any accused nor stolen cash was produced before him in the court. Meaning thereby that 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. The other witness, PW-3, Constable Sushil Kumar, who is a formal witness, proved registration of first information report, Exhibit Ka-2, Case Crime No.1613/12, scribed in his hand-writing and under his signature. This registration of report was against unknown accused persons for offence, punishable under Sections 457 and 380 IPC. Since the report was against unknown accused persons, cross-examination was not done. The report was against unknown thieves. Thus, testimony of this witness is of relevance to the prosecution and is of no avail to the prosecution.
14. PW-4 is Sub Inspector-Subhash Chand. He is a witness of fact of arrest of accused persons and recovery of stolen articles. In his testimony, this witness has stated that on 14.8.2012, on receiving information, he, accompanied Inspector, Incharge, Police Station, Kotwali, and reached Varni fourway-junction, where they met SOG Incharge, Sumit Kumar Singh. He has been told about presence of thieves, who have committed various thefts in the city, with stolen articles, near Cremation Ghat, Chandi Mata Temple. Police Team proceeded towards Cremation Ghat and on reaching thereat, Police team seen some persons sitting thereat. On being pointed by the informer towards those persons that they were involved in various incidents of thefts, Police Team apprehended four persons. 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, however, four other persons managed to escape from the spot. Smt. Prem Lata Jain, Pramod Kumar, Akhilesh Sharma, Smt. Gita, Satendra Singh Parmar (informant), Balram Pachauri, Niraj Nayak, Sanjay Tiwari and others reached on the spot, and after seeing those four apprehended persons said that they have committed various occurrences of theft. Prem Lata Jain identified Mangalsutra and one golden ring stolen from her house whereas Balram Pachauri identified one golden chain and Rs.2,000/-, in cash, stolen from his house, Akhilesh Sharma has identified two golden rings, with cash of Rs.20,000/-, stolen from his house, two ear rings stolen from the house of Sanjay Tiwari was also identified by him and Niraj Nayak identified golden Pendent stolen from his house. He prepared recovery memo on dictation of Inchaarge, S.O.G., which are Paper Nos. 13Ka/1 and 13Ka/2 and marked as Exhibit Ka-4.
However, in his cross-examination, this witness has said that in the first information report, name of any accused was not mentioned and the report was lodged against unknown persons nor any specific mark of identification of stolen articles was there. Such articles are generally found in every house. Proceeding for identification of recovered articles was not conducted. On whose information, informants of other cases reached on the spot, was not known to him. At what time, recovery memo was written, he could not remember. Whether first information report of each occurrence was there or not, was not under his knowledge. Meaning thereby, there was no specific mark of identification of stolen articles nor denomination of currency notes, stolen from the shop of informant was there, nor any proceeding for identification of recovered articles was conducted nor anyone was named in the first information report. Who wrote the recovery memo and at what time was also not known to this witness. Thus, testimony of this witness appears to be shaky and is not worth credit, thereby, does not support prosecution case in any way.
15. PW-5 is Sub Inspector, Varun Pratap Singh Yadav. He, in his testimony, has said that while he was posted at Police Chowki Nehru Nagar, under Police Station Kotwali, Lalitpur, on 8.8.2012, he has been entrusted with investigation of Case Crime No. 1613/12, under Sections 457, 380 and 511 IPC, against unknown persons. In his testimony, this witness has stated that firstly he collected Copies of Chik, report, written report and got the same entered in the case diary, then after recorded statement of scribe of first information report, Sushil Kumar, statement of informant, Smt. Gita, statement of witness Kamlesh Kushwaha and Bakiram Raikvar. He also got statement of accused persons recorded and found them to be involved in the occurrence of theft and recovered stolen articles, hence Sections 411 and 413 of IPC were added. Statements of Police personnel, who arrested accused persons and recovered stolen articles were recorded by him. He inspected place arrest of accused ahead of Chandi Mata Temple, Govind Sagar Dam and Cremation Ghat and prepared Site Map, which is Paper No.15Ka/2, under his signature, which is marked as Exhibit Ka-5. He inspected the shop of the informant (place of occurrence) and prepared site map, which is paper no. 15K, under his signature, marked as Exhibit Ka-6. He submitted chargesheet, Exhibit Ka-7, on 22.8.2012, against Arvind Parmar @ Banty Raja, Rajan Jitu Parihar, Naval Ahirvar and Arvind Pal. Thenafter, again submitted chargesheet, Exhibit Ks-8, against Shivam Tiwari, Raheem and Bunty @ Vinod, on 30.9.2012.
16. This witness, in his testimony, has also stated that being member of the Police team, has witnessed arrest of Shivam Tiwari, 27.8.2012, from Jail Road, upon receipt of an information from the informer and from his personal search Rs.5,000/- in cash, golden ring of about 1.5 Tola and one number white coloured silver box, like of silver metal were recovered. On being investigated, he confessed to have committed various occurrences theft with his other accomplices, namely, Arvind Parihar @ Bunty, Rajan, Jitu, Naval, Arvind Pal, Banti Dhobi and Rahim. Recovery memo of recovered articles were prepared on the spot, a copy of which has been given to the accused.
However, in cross-examination, this witness has stated that in the first information report, names of accused persons was not mentioned nor any mark of identification of any accused was there nor there was any mark of identification of stolen articles nor there was any eye witness nor any independent public witness of occurrence. He did not get the identification parade of accused persons conducted nor any proceeding for identification of stolen article was conducted.
So far arrest of arrest of Shivam Tiwari is concerned, 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.
17. 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 not there and as such in absence of any such evidence, prosecution miserably failed to prove its case.
18. 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'.
19. 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.
20. 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.
21. 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 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 shop or recovery of cash from convict-appellants.
22. 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.
23. 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.
24. 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.
25. In view of what has been discussed above, this Criminal Appeal deserves to be allowed.
26. Accordingly, this Criminal Appeal succeeds and is allowed. The impugned judgment and order of conviction dated 20.07.2018, 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.
27. 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.
28. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance.
30.08.2019 bgs/-