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 21.7.2018 and sentences awarded therein by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 43 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 1210 of 2012, under Sections 457, 380, 411, 413 IPC, Police Station- Kotwali Lalitpur, District Lalitpur, whereby convict-appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra and Rahim Khan have been sentenced with five years' rigorous imprisonment and fine of Rs.5,000/-, each, under Section 380 IPC, and Ten years' rigorous imprisonment, with fine of Rs.10,000/-, each, under Section 457 IPC, and three years' rigorous imprisonment, with fine of Rs.3,000/-, under Section 411 IPC. In default of deposit of fine of Rs.10,000, they will have to serve one year's simple imprisonment, in default of deposit of fine of Rs.5,000/-, they will have to serve six months' simple imprisonment and in default of deposit of fine of Rs.3,000/-, they will have to serve three months simple imprisonment, with further direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this 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 between 3.6.2012 to 18.6.2012 and first information report was lodged on 18.6.2012 as Case Crime No.1210 of 2012, under Section under Sections 457, 380, 411, 413 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 on 14.8.2012, whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, said to have absconded. Recovery of Rs.80,000/-, with golden ornaments from joint possession of arrested accused persons were shown. Though the occurrence is said to have occurred between 3.6.2012 to 15.6.2012, but the first information report was lodged on 18.6.2012. PW-3, Uday Bhan Singh, has stated that the arrest of appellant nos. 1 and 2 was made on 14.8.2012 and alleged recovery of golden ornaments was said to have been made from them, while appellant no.3 was said to have fled from spot. It was a false recovery and false implication. Hence, this Criminal Appeal with above prayer.
3. Heard Sri Nanhe Lal Tripathi, learned counsel for the appellant and learned AGA, appearing for the State and gone through the impugned judgement as well as record of the Trial court.
4. From very perusal of the record, it is apparent that the First Information Report, Exhibit Ka-1, dated 18.6.2012, was got lodged by the informant, Balram Pachauri, at Police Station-Kotwali Lalitpur, District Lalitpur, with this contention that informant, who is resident of House No. 105, Near Chandi Mata Temple, Gandhi Nagar, Lalitpur, was at Jhansi, after keeping his house locked. Residents of nearby locality of his residence, gave information about alleged theft from his home in the night of 14/15.6.2012. He came to his home at Lalitpur and found that theft was committed at his home by breaking locks and gold as well as silver ornaments, kept in Almirah, with Rs.80,000/- cash, were stolen by thieves. Clue was being traced, but of no avail. Hence, this report. Case Crime No.1210 of 2012, under Sections 380 of Indian Penal Code (In short ''IPC') was got registered against the unknown thieves on 14.8.2012. While SOG Incharge, Sumit Kumar Singh, alongwith his Police Team was on surveillance duty, informer gave information about presence of thieves near Cremation Ghat, Chandi Mata Temple. This was immediately communicated to Inspector, Incharge, Kotwali Lalitpur, District Lalitpur, Sri Uday Bhan Singh. A Police Team led by him, with this Inspector, proceeded for Chandi Mata Temple. On being pointed by the informer towards few persons, sitting thereat, Police Team apprehended four persons at 15.15 PM. They were Arvind Parmar @ Bunty Raja, from whose personal search, one Mangalsutra of yellow metal, appearing to be gold, with cash of Rs.10,000/-, was recovered, other was, Rajan, from whom golden chain of yellow metal, with cash of Rs.12,000/- was recovered, and the third one was Jitu Parihar, from whom, ear ring of golden of yellow metal and Rs.4,000/- cash was recovered, fourth one was, Naval Ahirvar, from whom three rings of gold, Rs.32,000/- in cash and one Pendent of yellow metal was recovered, however, 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 rushed to the spot, who identified those apprehended persons to be residents of above locality. Upon query, those apprehended persons confessed offence of theft committed by them and they told that Mangalsutra and 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 home of Balram Pachauri, two golden rings, with cash of Rs.20,000/-, was stolen from the home of Akhilesh Kumar Sharma, two ear rings were stolen from the home of Sanjay Tiwari, Pendent of Mangalsutra from the home of Niraj Nayak and Rs.5,000/ cash from the home of Bharat Patel, Rs.2,000/- was stolen from home of Gita and Rs.5,000/- in cash was stolen from home of Pramod. Remaining stolen articles were taken away by Shubham Tiwari, Arvind Pal, Bunti Dhobi and Raheem. Those alleged 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 are habitual offenders of theft, hence they were taken in custody and recovery memo was got prepared on the basis of which this implication was got made.
5. On the basis of investigation, chargesheet was filed and Magistrate took cognizance over it. As offence, under Section 413 IPC was exclusively triable by the court of Sessions, this file was committed to the court of sessions, where, after hearing learned Public Prosecutor as well as learned counsel for defence. Charges for offence, punishable under Section 380, 457, 411 and 413 were framed, vide order, dated 2.5.2013. Charges were readover and explained to the accused persons, who pleaded not guilty and requested for trial.
6. Prosecution examined PW-1, Balram Pachauri, informant, PW-2, Mohd. Hanif Khan, PW-3, Inspector Uday Bhan Singh, PW-4, Shamshad Ahmad, PW-5, S.I. Pushpa Vermna and PW-6, S.I. Varun Pratap Singh.
7. 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.
8. After hearing over quantum of sentence, impugned sentence was passed.
9. No appeal, by the State against judgement of acquittal for offence, under Section 413 IPC, is there.
10. First Information Report, Exhibit Ka-1, was formally proved by PW-1, Balram Pachauri 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 said that on 14.8.2012, he received information about apprehension of some persons by the Police Personnel at Cremation Ghat, Nai Basti, Lalitpur and when this witness rushed there, he found three to four persons were taken in apprehension by the Police Personnel and from Rajan, a golden chain, with Rs.12,000/- in cash, was recovered and this was identified to be of his own. Other recovery was of 2.9.2012, when upon having some information about apprehension of one thief, he rushed there and found Raheem, who was apprehended, from whom a golden ring of him was recovered and the alleged recovered articles, which were stolen from his home, were taken from the Police on 14.8.2012, i.e., neither those articles were showed nor were put under identification nor were with any specific mark of identification and only on the basis of saying of this witness, that too, after his reaching on the spot, those articles were held to be of this witness, i.e., no identification was legally established by the Investigating Officer nor those articles were produced before the court during trial nor there was any specific mark of identification.
11. In cross-examination, this witness has categorically said that this report was not against any specific person, rather it was against unknown thieves and this witness is not aware about time when those accused were apprehended or from where they were apprehended. He was not aware of Raheem since before. He was informed by the Police through telephone and thenafter he rushed on the spot where he has been informed that the recovery has been made. There was no signature of this witness on any paper, alleged to have been prepared on the spot, because no paper was prepared on the spot. Alleged recovered articles were not produced before this witness at the time of his testimony. No receipt of delivery of article was ever issued by this witness nor it was taken by the Investigating Officer. Meaning thereby, neither recovery was before this witness nor any specific mark of identification of alleged recovered article was there nor any recovery memo was prepared on the spot nor the same were produced before the court during trial nor this witness was previously acquainted with whereabouts of accused persons.
12. The other witness, PW-2, Mohd. Hanif Khan, who is a formal witness, proved registration of first information report, under his signature, Paper no. 4-Ka, Exhibit Ka-2. This registration of report was against unknown accused persons for offence, punishable under Section 380 IPC. It was neither under Section 457 IPC nor under Section 411 IPC. In cross-examination, this has specifically been said to have been written against the unknown thieves.
13. PW-3 is Inspector Uday Bhan Singh. A witness of alleged recovery, dated 14.8.2012, but no public witness of above recovery is there and those four persons, who were apprehended, were said to be Arvind Parmar @ Bunty Raja, from whom, Mangalsutra of yellowish metal, like gold, with cash of Rs.10,000/- was recovered, the next one was Rajan, from whom golden chain of yellow metal, with cash of Rs.12,000/- was recovered, third one was Jitu Parihar, from whom, golden yellow metal ear ring and Rs.4,000/- cash was recovered, and fourth one was, Naval Ahirvar, from whom three rings of gold, Rs.32,000/- in cash and one Pendent of yellow metal was recovered, but neither any specific mark of identification of alleged recovered article or denomination or specific metal of articles recovered corresponds with alleged theft articles, instantly reported or said, under Section 161 Cr.P.C., was there. Though recovery memo has been said to have been prepared on the spot, under dictation of Sunit Kumar, which was signed by him also, but Balram Pachauri, in his testimony, has categorically denied preparation of any such recovery memo on the spot. He has proved Material Exhibits 1 to 10, however, in cross-examination, he has said that Arvind Parmar @ Bunty Raja, Rajan and Jitu Parihar were never named in any first information report nor any specific mark of identification of recovered article or stolen article was written in first information report. He is not aware as to when those informant/complainants have rushed on the spot or who gave information of alleged recovery. Except those who were informants of various offences of theft, none other was present on the spot, when recovery memo was prepared, is not under his remembrance. Whether informant/complaints of first information report of each case crime number were on the spot or not or whether recovered articles were seen by the Remand Magistrate or not is not under his knowledge. No identification parade of those recovered articles was ever conducted. Meaning thereby his examination-in-chief and examination-in-cross is with full of variance. Moreso, even single iota regarding offence, punishable under Section 380 IPC or 457 IPC is there, on record, against present convict appellants, except their alleged confessions, that too, when they were apprehended by the Police, which was not admissible in evidence. If entire prosecution case is admitted for the sake of argument, it may be said that those accused persons were apprehended with possession of those recovered articles, but there is neither any specific mark of identification nor there is any corresponding evidence for connecting with above offence of theft was there on record. It was condition precedent for offence, punishable under Section 411 IPC.
14. PW-4 is Shamshad Ahmad, who has formally proved site plan Ka-4. He, in his cross-examination, has categorically said that informant/complainant has never mentioned name of any accused nor shown any receipt of any stolen article. No person of locality was there, who might have seen this offence of theft nor there was name of any witness in the statements, recorded under Section 161 Cr. P.C. Meaning thereby, no effective investigation was made by this witness.
15. PW-5 is Inspector, Pushpa Verma, who, in her testimony, has said that she conducted investigation, after receiving of same from erstwhile Investigation Officer, Shamshad Ahmad. She has formally proved site map, Exhibit Ka-5, Ka-6, Ka-7 and chargesheet Ka-8, to be in her hand-writing and her signature was there. In cross-examination, she has said that prior to 15.8.2012, accused persons were apprehended and recovery was made, hence regarding recovery, she did not make any investigation nor there was any independent public witness. She even did not remember as to when she visited house of informant Balram Pachauri nor GD entry regarding it is with her. Meaning thereby her testimony is of no avail.
16. PW-6 is Sub Inspector Varun Pratap Singh, who is witness of fact, has said that upon having information from informer, he, alongwith his Police team, apprehended Shivam, from whom recovery of Rs.5,000/- in cash and ring of gold with one other ornament, was made, which was confessed to have been stolen by him under assistance of Arvind Parmar @ Bunty Raja, Rajan, Jitu Parihar, Naval Ahirwar and Rahim. Recovery memo, Ka-9, was prepared on the spot and Exhibit Ka-10 has been formally proved as secondary witness.
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. 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 ornaments, but the same were not established by specific mark of identification to co-relate with the property alleged to have been stolen from above house-breaking or recovery of above ornament from convict-appellants.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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 IPC 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 it before Trial court.
27. 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.
28. In view of what has been discussed above, this Criminal Appeal deserves to be allowed.
29. Accordingly, this Criminal Appeal succeeds and is allowed. The impugned judgment and order of conviction dated 21.07.2018, 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.
30. 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.
31. 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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