# Arvind Parmar @ Banti Raja and Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 332
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-30
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-parmar-banti-raja-and-ors-in-jail-v-state-of-u-p-44460
- **Pages:** 10

## Headnote

Section 457 IPC. The accused must be
proved to have committed lurking housetrespass 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.(Para19)
This Criminal Appeal allowed.
Chronological list of Cases Cited:-

41 Cr.L.J, 623 (Allahabad), Chhadami v.
Emperor,AIR 1954 SC 39, Trimbak vs. State of
Madhya Pradesh. (E-2)

## Text

332 INDIAN LAW REPORTS ALLAHABAD SERIES
released forthwith, if he is not wanted in
any other case. However, he shall comply
with the mandatory requirement of
provisions of Section 437-A Cr.P.C.

34. There shall be no order as to
costs.

35. Let a copy of this judgement be
sent to the learned Sessions Judge,
Firozabad for ensuring compliance.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

CRIMINAL APPEAL No. 5207 OF 2018

Arvind Parmar @ Banti Raja and Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ram Datt Dauholia, Sri Nanhe Lal
Tripathi.

Counsel for the Opposite Party:
A.G.A.

Section 457 IPC. The accused must be
proved to have committed lurking housetrespass 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.(Para19)
This Criminal Appeal allowed.
Chronological list of Cases Cited:-

41 Cr.L.J, 623 (Allahabad), Chhadami v.
Emperor,AIR 1954 SC 39, Trimbak vs. State of
Madhya Pradesh. (E-2)

(Delivered by 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 convictappellants, Arvind Parmar @ Bunty Raja,
Rajan @ Rajendra, and Rahim Khan,
against the judgment of conviction, dated
24.07.2018
and
sentences
awarded
therein, by the Court of Additional
Sessions
Judge/Special
Judge
(U.P.
Dacoity Affected Area Act), Lalitpur, in
Sessions Trial No. 48 of 2013 (State vs.
Arvind Parmar @ Banti Raja and others),
arising out of Case Crime No. 701/2012,
under Sections 457, 380 and 411 of Indian
Penal Code (Hereinafter, in short, referred
to as ''IPC'), Police Station- Kotwali,
District
Lalitpur,
whereby
convictappellants, 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 case of 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
1 All. Arvind Parmar @ Banti Raja and Ors. Vs. Stae of U.P.
333
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 on 7.4. 2012 and a first
information
report
was
lodged
on
17.4.2012 as Case Crime No. 701 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 Rahim
Khan, appellant no.3, said to have fled
from the spot. Recovery of golden
ornaments was said to have been made
from joint possession of arrested accused
persons. Though the occurrence was said
to have occurred 7.4.2012, but the first
information
report
was
lodged
on
17.4.2012. As per statement of PW-4,
S.I., Sunit Kumar, 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, whereas it was a false recovery and
false implication as there was no credible
evidence against appellants, constituting
offence under Sections 457, 380 IPC.
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 17.4.2012,
was got lodged by the informant, Smt.
Prem Lala Jain, at Police Station-Kotwali
Lalitpur, District Lalitpur, with this
contention that on 6.4.2012, she was at
Bomby, in connection with the treatment
of her ailing husband and her son was at
home, and while, her son, went to
Chanderi at about 01.00 PM, locking the
home, her brother-in-law, Nilesh Kumar
Jain, came to her house on 7.4.2012
where he has seen that the locks are
broken. He gave information at the Police
Station
and
communicated
to
the
informant telephonically. Informant, after
coming to Lalitpur, on 8.4.2019, found
that her two golden Kangan (Bracelet),
about 2 Tola, three rings, about 1.5 Tola,
two ear rings, one Mangalsutra, about 2
Tola, Bangles of 8 Guria, 4 pair, about 2
Tola, silver anklate, about 500 gram, 4
Vintex Bangles, one wad of Rs.10/-
currency notes, in total Rs.1,000/-, 400
Kaldar, one Wad (Gaddi) of 10 rupees
currency
notes
and
change
money
amounting to Rs.3,00/ were stolen.
Hence, this report. Case Crime No.701 of
2012, under Sections 457 & 380 IPC was
got registered against unknown thieves on
17.4.2012.

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
near
Cremation
Ghat,
ChandiMataTemple.
This
was
immediately communicated to Inspector,
Incharge,
Kotwali
Lalitpur,
District
334 INDIAN LAW REPORTS ALLAHABAD SERIES
Lalitpur, Sri Uday Bhan Singh and called
him to Varni Four-way Junction. A Police
Team led by him, with this Inspector,
proceeded for ChandiMataTemple. 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, 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 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 rushed to 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 Kumar
Sharma, two ear rings were stolen from the
house of Sanjay Tiwari, Pendent of
Mangalsutra was stolen from the house of
Niraj Nayak and 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
Rahim. 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 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 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.
Premlata
Jain,
informant,
PW-2,
Constable, Suravali Yadav, PW-3, Varun
Pratap Singh, Sub Inspector, PW-4, Sunit
1 All. Arvind Parmar @ Banti Raja and Ors. Vs. Stae of U.P.
335
Kumar,
Sub
Inspector,
PW-5,
Sub
Inspector, Rakesh Raj Gautam, PW-6,
Head Constable, Radheshyam Sachan and
PW-7, Sub Inspector, Man Singh Pal.

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.

9. After hearing over quantum of
sentence, impugned sentence was passed.

10. First Information Report, Exhibit
Ka-2, was formally proved by PW-1,
informant, Smt. Premlata Jain, and it has
specifically been lodged against unknown
thieves, because this witness was not
present at her home at the time of alleged
occurrence of theft. In examination-inchief, this witness has said that it so
happened that, while on 6.4.2012, the
informant was away from her home at
Bombay, leaving behind her son at home,
for the last one and a half months, in
connection with the treatment of her
husband, who was undergoing treatment
for Cancer, her son, locking the home
went to her paternal aunt's home (Buafather's Sister), at Chanderi, Madya
Pradesh, on next day, i.e. 7.4.2012, her
brother-in-law (Devar), Nilesh Jain, found
locks put on the door of her home broken.
He gave information of this incident at the
concerned Police Station as well as to the
informant telephonically. On coming back
to her home on 8.4.2012, she found her
house hold articles scattered here and
there and occurrence of theft by unknown
thieves took place. Two golden Kangan
(Bracelet), about 2 Tola, three rings,
about 1.5 Tola, two ear rings, one
Mangalsutra, about 2 Tola, Bangles of 8
Guria, 4 pair, about 2 Tola, silver anklate,
about 500 gram, 4 Vintex Bangles, one
wad (Gaddi) of Rs.10/- currency notes, in
total Rs.1,000/-, 400 Kaldar of 10 rupees
and change money amounting to Rs.3,00/
were stolen by unknown thieves. After 45 months of the incident, Police claimed
to have recovered one Mangalsutra, one
golden garland and one golden ring from
some thieves, which she identified,
whereas in cross-examination she has said
that recovered articles were not produced
before her in the court nor she has given
any specific mark of identification of
Mangalsutra. When the Police made
recovery, she had seen the recovered
articles in the office of Superintendent of
Police. When the recovery was made and
who made recovery was not known to her
nor she identify any thief nor she has ever
seen them. She did not know any of the
accused persons nor she was aware about
the name and address of them. Stolen
articles were not produced before her nor
has she seen anyone committing theft.
Meaning thereby, neither there was any
specific mark of identification of stolen
articles 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.

11. PW-2 is Constable Suryavali
Yadav,
who
registered
the
first
information report, has formally proved
registration of registering first information
report. He, in his, examination-in-chief,
has stated that, while he was posted at
336 INDIAN LAW REPORTS ALLAHABAD SERIES
Police Station Kotwali, Lalitpur, as Head
Moharir, on 20.4.2012, he has registered
first information report of Case Crime No.
701/12, under Section 380 and 457 IPC,
against
unknown
thieves,
on
the
application of Smt. Premlata Jain, Wife of
Sunil Kumar Jain, Resident of Gandhi
Nagar, Lalitpur, which was in his handwriting and under his Signature. First
information report is paper no. 5Ka and
exhibited as Exhibit Ka-2. In his crossexamination, this witness, has said that on
the day of registration of first information
report, he was on duty. He registered first
information report on the basis of the
order of the Station Officer, passed on the
application of the informant. Informant
was present thereat. The report was
against unknown persons. From the
testimony of this witness, registration of
first information report against unknown
persons is proved.

12. PW-3 is Sub Inspector Varun
Pratap Singh. This witness, in his
testimony, has stated that on 27.8.2012,
while he was posted as Chowki Incharge
of Nehru Nagar Chowki, under Kotwali
Lalitpur and was on duty with the
Inspector, Kotwali, Lalitpur, at 7.30 PM,
on that very day, they arrested one thief at
at a nearby place of Juvenile Care Centre,
Nehru Nagar, who disclosed his name
Shivam Tiwari. On his personal search,
Rs.5,000/
cash
was
recovered.
He
confessed infront of them that he,
alongwith
his
other
accomplices,
committed various occurrences of theft
and recovered amount was given to him
as his share. This recovered article was
stolen from the house of Sunil Kumar
Jain, whereas in his cross-examination,
this witness has said that he did not
remember time entered in the G.D.
regarding his departure from Police
Chowki as well as arrival at the Police
Chowki. He also did not remember that
how many copies of recovery memo were
prepared or where recovery memo was
prepared and how many persons signed
recovery memo or what was the boundary
mentioned in recovery memo. On what
date, which occurrence of theft was
committed by the accused persons is not
known to him. Identification proceeding
of
the
recovered
articles
was
not
conducted. Meaning thereby, testimony of
this
witness,
which
is
full
of
contradictions and discrepancies, is not
worth credit and is of no avail to the
prosecution.

13. PW-4 is Sub Inspector Sunit
Kumar. He, in his examination-in-chief,
has stated that, while being posted as
Incharge, SOG, Lalitpur, on 14.8.2012,
he, alongwith his Police Team, and with
the help of Police personnel of Kotwali,
on the information, received from the
informer, have arrested four persons, from
whom ornaments of gold and silver as
well as cash were recovered. Those
accused persons have confessed to have
committed various thefts in the District of
Lalitpur. On the spot, one Mangalsutra
and one golden ring, stolen from the
house of Smt. Premlata Jain, Informant,
were recovered, which were identified by
Smt. Premlata Jain, on the spot. Recovery
memo, Exhibit Ka-4, was prepared by
him on the spot, which was got signed by
the accused persons and the police
personnel, accompanying him. Arrested
persons disclosed their names, Arvind @
Banti, Jitu Parihar, Rajan and Nava,
whereas in his cross-examination, this
witness has said that name of the accused
persons was not mentioned in any of the
first information reports nor was there any
eye witness account of occurrence of
1 All. Arvind Parmar @ Banti Raja and Ors. Vs. Stae of U.P.
337
theft. Identification proceeding of the
recovered articles was not conducted. He
did not remember, whether copy of the
recovery memo was given to the accused
persons or not. Who gave information to
the informant of the first information
report, about arrest and recovery, was not
known to him. Recovered articles was not
produced before him. Meaning thereby,
there is discrepancies and contradictions
between examination-in-chief and crossexamination of this witness, which is also
at variance and as such testimony of this
witness is not credible and not credit
worthy at all.

14. PW-5 is Sub Inspector, Rakesh
Raj Gautam, who, in his examination-inchief, has said that, while he was posted
as Sub Inspector at Kotwali, Lalitpur, on
22.8.2012, he has been entrusted with the
investigation of Case Crime No.701 of
2012, under Sections 457 and 380 IPC in
which final report was submitted by the
previous Investigating Officer, but an
information
regarding
recovery
of
articles, pertaining to this incident of
occurrence of theft, was received by him.
He got the statements of accused persons
recorded. He also got statement of
Incharge, SOG, Sunit Kmar, who arrested
accused persons, recorded. He also got
statements
of
other
police
persons
recorded. After collecting evidence, he
filed chargesheet, under Sections 457,
380, 411 and 413 IPC, which is Paper
No.3Ka, Exhibit Ka-5, in his handwriting
and under his signature. In his crossexamination, this witness has stated that
he
did
not
get
any
identification
proceeding of the accused conducted nor
of
recovered
articles.
He
did
not
remember entries made in the General
Diary (G.D) nor the same were produced
before him nor he recollects number of
the G.D. nor recovered articles were
produced before him. Meaning thereby,
testimony of this witness is of no
relevance to the prosecution and is shaky
as such is of no avail to the prosecution.

15. PW-6 is Head Constable,
Radheshyam Sachan. This witness, in his
examination-in-chief, has said that this
case was partly investigated by Sub
Inspector Nanhe Lal Yadav. Site Plan,
Exhibit Ka-6, which is on record, was in
his writing and under his signature. He
remained posted with him and, therefore,
he
identified
his
signature
and
handwriting,
whereas
in
his
crossexamination, he denied of site plan being
prepared
before
him.
Since,
G.D.
containing entry of his departure and
arrival was not before him, he was not
able to tell whether he went on the spot or
not. He could not tell as to whether the
site map has been rightly prepared or it
was incorrect. He also did not remember,
the period during which Nanhe Lal Yadav
was posted with him. He said that it is
wrong to say that he is not aware of
handwriting or signature of Nanhe Lal
Yadav. There are contradictions in the
testimony of this witness. Moreover, the
Testimony of this witness does not appear
to be of any relevance to the prosecution.

16. PW-7 is Sub Inspector, Man
Singh Pal. He, in his testimony, has stated
that while he was posted at Nai Basti,
under
P.S.
Kotwali,
Lalitpur,
on
17.9.2012, he accompanied his Station
Officer, Uday Bhan Singh, in connection
with search of accused of various
occurrence of theft, on the information of
informer, reached at Govind Sagar Dam,
and found a suspected person sitting
thereat, whom informer pointed to be
Banti @ Rajan. After rounding him up, he
338 INDIAN LAW REPORTS ALLAHABAD SERIES
has been apprehended at about 23.40 PM.
On personal search being made, anklates
of silver, about 250 gms, were recovered
from him, which, he confessed to have
been stolen from the house of Niraj
Nayak and he got those anklates as share
of that theft. Recovery memo, on the
dictation of Station Officer, was got
prepared. Niraj Naiyak was called on the
spot and recovered article was got
identified by him. On 27.7.2012, also,
while he, alongwith his Station Officer,
was on round of the area in connection
with search of accused of occurrence of
theft, on an information of the informer,
they reached at Juvenile Centre Triwayjunction where a suspect was seen and on
pointing of the informer him to be Shivam
Tiwari, Police Team rounded him up and
arrested at about 19.30 PM. On personal
search being made, Rs.5,000/- in cash,
one ring of about 1.5 Tola and one Silver
Box (Dibiya) was recovered, which, he
confessed to have got as share of theft,
which he committed, alongwith his other
accomplices, in the house of Niraj Nayak.
Niraj Nayak has identified the recovered
article on the spot, alongiwht Kalyan and
and Sanjay Tiwari. Recovery memo was
got prepared, on the dictation of Station
Officer, by Varun Pratap Singh, which
was readover and signature of other
Police personnel was got. While, in his
cross-examination, this witness has stated
that he did not recollect case crime
number. In first information report, there
was no specific mark of identification of
stolen
articles
and
identification
proceeding was not conducted as per law.
There was no independent public witness
nor any accused was named in the report
nor occurrence of theft was seen by the
informant nor any mark of identification
of accused was given. There was no
independent public witness of recovery.
He did not remember whether copy of
recovery memo was got prepared or not.
Independent public witnesses were asked
to become witness, but their names and
address were not mentioned in the
recovery memo nor he was able to tell
who were asked to give evidence.
Meaning thereby, this witness neither was
able to tell case crime number nor there
was any specific mark of identification of
articles stolen nor any identification
proceeding was conducted in accordance
with law nor there was any independent
public witness either of occurrence of
theft or of recovery, so made, by the
Police, resulting testimony of this witness
not worth credit and full of contradiction
and at variance as well and as such does
not
support
case
set
up
by
the
Prosecution.

So far as testimony with regard to
arrest of Banti @ Rajan and Shivem
Tiwari by th Police is concerned, since
they are not appellants in this appeal,
hence, testimony of this witness is of not
much relevance to the prosecution in this
Appeal.

17. Examination-in-chief and crossexamination of the witnesses produced by
the prosecution are full of variance and
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
1 All. Arvind Parmar @ Banti Raja and Ors. Vs. Stae of U.P.
339
connecting with above offence of theft
was there on record, which was a
condition
precedent
for
offence,
punishable under Section 411 IPC.

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 housetrespass by appellants was there, except
alleged recovery of cash, but the same
were 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 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
340 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 cash money was
said to have been made from convictappellants. 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.

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 24.07.2018, 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.
1 All. Ashok Vs. Stae of U.P.
341

31. Let a copy of this judgment
along with lower court's record be sent
back to the court concerned for immediate
compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

CRIMINAL APPEAL No. 1000 OF 2012

Ashok ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sunil Kumar Pathak, Sri Abhishek Mayank,
Sri Ashish Upadhyay, Sri R.P. Dwivedi, Sri S.A.
Ansari, Sri Sanjay Sharma, Sri Sanjay
Sitanshu.

Counsel for the Opposite Party:
A.G.A.

A.
Section
2
Sub-section
(VIIa)
"Commecrial Quantity",- the quantity in
the head of small quantity upto 5 gm.
and commercial quantity above 250 gms.
for "Heroin". (Para 7)

B. Sudden occurrence of recovery of
huge quantity of Smack (Heroin) from
convict-appellant. Hence, no question of
compliance of Section 42 or 43 of the
Act, power of seizure and arrest in public
places, arises. (Para 10)

C. Non-compliance of Section 50 of
N.D.P.S. Act. Section 50 is not applicable
nor attracted where no search of a
person is involved. Search and recovery
from a bag, brief case, container, etc.,
does not come within the ambit of
Section 50 of the N.D.P.S. Act.(Para 11 &
11(2))

Criminal Appeal dismissed.
Chronological list of Cases Cited: -
1. Ajmer Singh Vs. State of Haryana (2010) 3
Supreme Court Cases 746 in Para 14,

2. Jarnail Singh Vs. State of Punjab (2011) 3
Supreme Court Cases 521 in Para 11 and 12,

3. Ajmer Singh Vs. State of Haryana (2010) 3
Supreme Court Cases 746 in Para Nos. 19 to
21 (E-2)
(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal, under Section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as 'Cr.P.C.'), has
been filed by Ashok, convict appellant,
against the judgment of conviction and
sentence made therein, dated 17.2.2012,
passed by Court of Additional Sessions
Judge, Court No. 5/Special Judge, Agra,
in Special Sessions Trial No. 62 of 2005,
arising out of Case Crime No. 401 of
2004, State Vs. Ashok, under Section 21
of N.D.P.S. Act (hereinafter referred to as
'Act'), Police Station Jagdishpura, District
Agra, wherein convict-appellant Ashok
Kumarhas been convicted for offence
punishable under Section 21 of Act and
has
been
sentenced
with
rigorous
imprisonment of ten years and fine of Rs.
1 lac and in default two years additional
rigorous imprisonment with a direction
for adjustment of previous incarceration
in this very case crime number, with this
contention that trial Court failed to
appreciate facts and law placed before it.
Police arrested convict appellant from his
house on 5.11.2004, for which instant
telegram, complaining fact of arrest from
home, to higher authorities, was sent by
his wife and mother on 5-6.11.2004.
Thereafter, police challened appellant on
7.11.2004 with accusation of recovery of
800 gms. of 'Heroin' from his possession
whereas no such recovery was there nor
prosecution could prove its case beyond