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

- **Citation:** (2019) 1 ILRA 593
- **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-bunty-and-ors-in-jail-v-state-of-u-p-44528
- **Pages:** 9

## Headnote

A. IPC - Sections 457, 380, 411, 413 and
511 of IPC. Not an iota of evidence
regarding
commission
of
offence
punishable under Section 380 IPC or 457
IPC, except their alleged confessions,
that too, when they were apprehended
by the Police. Not admissible in evidence
 (Para17)

B. To complete offence, under Section
457 IPC, the ingredient is that burglar,
or house breaker by night, should have
an
intention
to
commit
theft.
For
conviction, under Section 457 IPC, the
accused
must
be
proved
to
have
committed lurking house-trespass or
house breaking.
That
charge
must
be substantiated
by
evidence. It 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.(Para19)
B.
Evidence
Act
-
Section
114
-
Presumption can be drawn only when
the accused, when asked, is unable to
explain his possession. That in order to
constitute lurking house-trespass, the
offender must take some active means to
conceal his presence. (Para-20)

C. Under Section 380 IPC - Essential
ingredient for offence, punishable under
594 INDIAN LAW REPORTS ALLAHABAD SERIES
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
thatsuch building, tent or vessel was being
used for human dwelling or custody of
moveable property. Intention to take this
dishonestly must be proved. (Para22)

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.Criminal Appeal
succeeds and is allowed. (Para 24,25,26)

CHRONOLOGICAL LIST OF CASES CITED: -
41 Cr.L. J, 623 (Allahabad),Chhadami v.
Emperor (E-7)

## Text

1 All. Arvind Parmar @ Bunty and Ors. Vs. State of U.P.
593
punished either with death sentence or
with imprisonment for life and also with
fine. Thus appellant has been convicted
for minimum sentence which requires no
interference.

39. In the light of above discussion.
This jail appeal is hereby dismissed.
Impugned judgment and order dated
20.1.2011 passed by Additional Session
Judge, Court No. 2, Bareilly in S.T. No.
37 of 2009 (State Vs. Moti) is maintained
and affirmed.

37. Sri Sita Ram Sharma, learned
Amicus Curiae has assisted the Court very
diligently. We provide that he shall be
paid counsel's fee as Rs. 10,000/-. State
Government is directed to ensure payment
of aforesaid fee through Additional Legal
Remembrance
posted
in
office
of
Advocate General at Allahabad, to Sri
Sita Ram Sharma, Amicus Curiae without
any delay and, in any case, within 15 days
from the date of receipt of copy of this
judgment.

38. Let a copy of this judgment
along with lower court record be sent to
Additional Session Judge, Court No. 2,
Bareilly for necessary information and
compliance.

39. Compliance report be sent to this
Court. Copy of this judgment be also
supplied to accused-appellant through
Superintendent of Jail, concerned.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

CRIMINAL APPEAL No. 5206 OF 2018
Arvind Parmar @ Bunty 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.

A. IPC - Sections 457, 380, 411, 413 and
511 of IPC. Not an iota of evidence
regarding
commission
of
offence
punishable under Section 380 IPC or 457
IPC, except their alleged confessions,
that too, when they were apprehended
by the Police. Not admissible in evidence
 (Para17)

B. To complete offence, under Section
457 IPC, the ingredient is that burglar,
or house breaker by night, should have
an
intention
to
commit
theft.
For
conviction, under Section 457 IPC, the
accused
must
be
proved
to
have
committed lurking house-trespass or
house breaking.
That
charge
must
be substantiated
by
evidence. It 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.(Para19)
B.
Evidence
Act
-
Section
114
-
Presumption can be drawn only when
the accused, when asked, is unable to
explain his possession. That in order to
constitute lurking house-trespass, the
offender must take some active means to
conceal his presence. (Para-20)

C. Under Section 380 IPC - Essential
ingredient for offence, punishable under
594 INDIAN LAW REPORTS ALLAHABAD SERIES
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
thatsuch building, tent or vessel was being
used for human dwelling or custody of
moveable property. Intention to take this
dishonestly must be proved. (Para22)

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.Criminal Appeal
succeeds and is allowed. (Para 24,25,26)

CHRONOLOGICAL LIST OF CASES CITED: -
41 Cr.L. J, 623 (Allahabad),Chhadami v.
Emperor (E-7)

(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 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
1 All. Arvind Parmar @ Bunty and Ors. Vs. State of U.P.
595
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,
ChandiMataTemple.
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
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, 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
596 INDIAN LAW REPORTS ALLAHABAD SERIES
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
1 All. Arvind Parmar @ Bunty and Ors. Vs. State of U.P.
597
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 handwriting 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,
crossexamination 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,
ChandiMataTemple.
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
598 INDIAN LAW REPORTS ALLAHABAD SERIES
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
crossexamination, 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
1 All. Arvind Parmar @ Bunty and Ors. Vs. State of U.P.
599
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
ChandiMataTemple, 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-incross 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
600 INDIAN LAW REPORTS ALLAHABAD SERIES
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 housetrespass 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
1 All. Bachu @ Hira Lal Vs. State of U.P.
601
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 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.

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.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 7229 OF 2018

Bachu @ Hira Lal ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashok Kumar Singh.

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

A. IPC - section 506 I.P.C- The essential
ingredient for offence punishable under
this
section
is
offence
of
criminal
intimidation defined under section 503
I.P.C

To bring home an offence punishable u/s 506
I.P.C. the prosecution has to prove that