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

- **Citation:** (2019) 2 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal No. 5240 of 2018
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-parmar-bunty-raja-ors-in-jail-v-state-of-u-p-44723
- **Pages:** 11

## Headnote

A. Code of criminal procedure, 1973 -
Section 374 (2) - Criminal Appeal -
statement of accused persons under
Section 313 Cr.P.C.- Presumption, under
Section 114, Indian Evidence Act, 1872 -
judgment of conviction and sentence,
awarded is illegal, perverse and against
the weight of evidence on record.
 (Para 1, 8,19 & 26)

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. (Para 8,24 & 25)

B. Indian Penal Code, 1860 - conviction,
under Section 457 IPC- 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. (Para 18)

C. Indian Evidence Act, 1872 - Section
114 - Presumption, under Section 114,
Evidence Act, can be drawn only when
the accused, when asked, is unable to
explain his possession. (Para 19)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 232

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5240 of 2018

Arvind Parmar @ Bunty Raja & 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. Code of criminal procedure, 1973 -
Section 374 (2) - Criminal Appeal -
statement of accused persons under
Section 313 Cr.P.C.- Presumption, under
Section 114, Indian Evidence Act, 1872 -
judgment of conviction and sentence,
awarded is illegal, perverse and against
the weight of evidence on record.
 (Para 1, 8,19 & 26)

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. (Para 8,24 & 25)

B. Indian Penal Code, 1860 - conviction,
under Section 457 IPC- 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. (Para 18)

C. Indian Evidence Act, 1872 - Section
114 - Presumption, under Section 114,
Evidence Act, can be drawn only when
the accused, when asked, is unable to
explain his possession. (Para 19)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Chhadami Vs Emperor 41 Cr.L. J, 623 (Ald.)

2. Trimbak Vs St. of M.P. AIR 1954 SC 39
(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
04.08.2018
and
sentences
awarded
therein, by the Court of Additional
Sessions
Judge/Special
Judge
(U.P.
Dacoity Affected Area), Lalitpur, in
Sessions Trial No. 25 of 2013 (State vs.
Arvind Parmar @ Bunty Raja and others),
arising out of Case Crime No. 1150 of
2012, under Sections 457, 380, 411, 413
of Indian Penal Code (Hereinafter in short
referred to as ''IPC'), Police Station-
Kotwali
Lalitpur,
District
Lalitpur,
whereby
convict-appellants,
Arvind
Parmar @ Bunty Raja, Rajan @ Rajendra
and Raheem Khan, have been sentenced
with seven years' rigorous imprisonment
and fine of Rs.10,000/-, each, under
Section 380 IPC, and twelve years'
rigorous imprisonment, with fine of
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
233
Rs.20,000/-, each, under Section 457 IPC
and rigorous imprisonment of three years,
with fine of Rs.5,000/-, each, under
Section 411 of IPC. In case of default of
deposit of fine of Rs.20,000/-, they will
have to serve one year's additional simple
imprisonment, in case of default of
deposit of fine of Rs.10,000/-, they will
have to serve six months' additional
simple imprisonment and in case of
default of deposit of fine of Rs.5,000/-,
they will have to undergo three months
additional simple imprisonment, with a
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
conjectures.

2. The occurrence of theft had been
said to have taken place in the night of
10.06.2012 and a first information report
was lodged on 11.6.2012 as Case Crime
No.1150 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 cash,
was said to have been made from joint
possession of arrested accused persons.
Though the occurrence was said to have
occurred
on
10.06.2012,
and
first
information
report
was
lodged
on
11.6.2012. PW-2, Sunit Kumar, 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-9, dated 11.06.2012,
was got lodged by the informant,
Akhilesh Kumar Sharma,
at Police
Station-Kotwali
Lalitpur,
District
Lalitpur, with this contention that in the
night of 10.06.2012, while, in connection
with delivery of his wife, he was at
District Hospital, Lalitpur, where, in the
night at 12:20 PM, delivery of wife took
place, whereafter the informant came to
his home in the morning at 6:45 AM and
found that the lock of main door and
locker of the Almirah was broken and
articles, such as, six bangles, weight about
4-5 Tola, one garland (Haar), weight
about 37 gm, one Mangasutra weight 15
gm, two chains, weight about 70 gm, two
pair ear rings (Jhumka), weight about 20
gm, six rings of male and five rings of
ladies, weight about 30 gm, and one Bedi
of 02 gm, all of gold, and 20 silver coins,
ten pairs anklet, one Kardhan of silver,
weight about 1.5 kg, one chain of
Ventmen jewellery and Rs.2,70,000/-,
cash, kept in the Almirah, were stolen by
thieves. His house, at second and third
storey, was under construction, which was
being constructed by Masons Gangaram
234 INDIAN LAW REPORTS ALLAHABAD SERIES
and Kalyan, who left the construction
work in midway. Informant expressed his
suspicion of theft, over them. He
submitted written complaint, in his own
handwriting, at Police Station Kotwali,
Lalitpur, which has been registered. Case
Crime No.1150 of 2012, under Sections
457 & 380 IPC was got registered, against
Gangaram and Kalyan, on 11.06.2012.

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, 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.
Apprehended persons were made known
about commissions of offence by them
under above Sections of IPC. It was
presumed that those accused persons were
habitual offenders of theft, hence they
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
235
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 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,
Akhilesh Kumar Sharma, informant, PW2, Sunit Kumar, Sub Inspector, PW-3,
Shamshad Ahmad, retired Sub Inspector,
Investigating Officer and PW-4, H.C.,
Amar Singh, scribe of Chik.

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 and judgment of acquittal, under
Section 413 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
Section 413 IPC, is there.

11. Written First Information Report,
Exhibit Ka-1 (Paper No. 5Ka), was
formally proved by PW-1, informantAkhilesh Kumar Sharma, and it has been
lodged against labours, working at his
home, on the basis of suspicion, because
this witness was not present at the place
of occurrence, i.e., at the time of alleged
occurrence of theft.

In
examination-in-chief,
this
witness has said that in the night of
10.06.2012, while, in connection with
delivery of his wife, he was at District
Hospital, Lalitpur, where in the night at
12:20 PM, delivery of wife took place. On
coming back to home next day, in the
morning at 6:45 AM, he found that the
lock of main door and locker of the
Almirah was broken and articles, such as,
six bangles, weight about 4-5 Tola, one
garland (Haar), weight about 37 gm, one
Mangasutra of 15 gm., two chains, weight
about 70 gm, two pair ear rings (Jhumka),
weight about 20 gm, six rings of male and
five rings of female, weight about 30 gm,
and one Bedi of 02 gm, all of gold, and 20
silver coins, ten pairs anklet, Kardhan (an
ornament of waist) of silver, weight about
1.5 kg, one chain of Ventmen jewellery
and Rs.2,70,000/-, in cash, kept in the
Almirah, was taken away by the the
thieves. Construction work at upper
storeys of his house was being carried out.
He expressed suspicion for occurrence of
theft
on
labour,
who
were
doing
construction work in his house. Further on
14.8.2012, on coming to know that Police
called him at Cremation Ghat where
Police personnel and members of S.O.G.
(Special Operation Group) were present,
he went there. On reaching there, he
found that, apart from Police Personnel,
Premlata Jain, Balram Pachauri, Niraj
Nayak, Satendra Parma and other persons,
not known to him, were present. Four
accused persons, namely, Naval Ahirwar,
Jitu, Arvind and Rajan, who were
236 INDIAN LAW REPORTS ALLAHABAD SERIES
apprehended by the Police, were sitting
thereat. Accused, Naval, confessed to
have stolen two rings and Rs.20,000/- in
cash, from his house. Recovery memo
was written and prepared, on the spot, at
about 3.30 PM. Thenafter, he came back
and not gone there again nor signed
recovery memo. Lateron, what Police
personnel written in recovery memo, he
was not aware.

On the date when occurrence of
theft was reported, at about 11 AM, a lady
Police personnel came there and took
specimen of finger prints of door and
locker of the Almirah. Bundle of sealed
articles were produced before the court
and upon opening of said Bundle, four
small Bundles were found. Upon one
Bundle, Crime Number 1150/12 was
written. On being opened, out of this
bundle, three rings, one Pendle of yellow
metal, 28 currency notes of Rs.500/- and
18 currency notes of Rs.1,000/-, total
amount of Rs.32,000/- were recovered.
Witness identified two small rings, being
stolen from his house. He said that total
Rs.2,70,000/-, in cash, were stolen from
his home, which were in denomination of
Rs.500/- currency notes and Rs.1,000/-
currency notes, which were recovered
from possession of accused-Naval, and
have been identified by him. Rings have
been exhibited as Exhibit 1 & 2, currency
note of Rs.5,00/- has been exhibited as
Exhibit 3 and currency note of Rs.1000/-,
has been exhibited as Exhibit-4.

On being cross-examined, this
witness has stated that he did not see
anyone committing theft. In the first
information, he did not mention that how
many currency notes were of Rs.1000/-
denomination and how many were of
Rs.5,00/-, however, it was told to the Sub
Inspector that currency notes were of
which denomination. If it was not written
in the report, he could not disclose reason.
Receipt of stolen articles were with him,
but this fact was not written by him in the
report. He could not tell the boundary of
the place where recovery was made and
did not sign the recovery memo. Currency
notes appear to be same, which are
available with everyone. It was wrong to
say that it was a false recovery and by
showing false recovery, accused persons
were arrested. In the testimony, this
witness has stated that he never identified
recovered articles in the court nor
identified accused persons. His statement
was recorded by the Sub Inspector on the
day of theft of occurrence. His statement
could not be recorded in the court. He
read recovery memo and his statement in
the court itself.

Meaning
thereby,
informant
neither
has
seen
anyone,
while
committing theft in hishouse nor was
there at the time when locks of his house
were broken nor any accused was
produced before him for identification.
Neither any recovery was made before
this witness nor any specific mark of
identification/denomination
of
alleged
recovered article/currency notes was there
nor any recovery memo was signed by
him 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
prosecution failed to prove case set up by
it, so far as testimony of this witness is
concerned.

12. PW-2, Sub Inspector, Sunit
Kumar, in his testimony, has stated that
on 14.8.2012, he, alongwith other Police
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
237
personnel apprehended four persons at
Cremation Ghat, Gandhi Nagar, Nai Basti,
Lalitpur, on the information received from
informer. They disclosed their names as
Arvind @ Bunty, Rajan, Jitu Parihar and
Naval. From their possession ornaments of
gold and silver as well as cash was
recovered. They confessed to have been
involved in various occurrence of theft in
the district of Lalitpur. Many persons,
including Akhilesh Sharma, informant,
reached on the spot. Akhilesh Kumar
Sharma said about theft of Mangalsutra,
Gold Bangles, ring, Bedi, 20 coins of silver,
ten pairs anklet of silver, one chain of
Vintex and Rs.2,70,000/- in cash. Out of
stolen articles, two rings of gold and
Rs.20,000/- were recovered. He got the
recovery memo prepared on the spot, which
bore his signature. The original memo was
enclosed in S.T. No. 53/13 and from that
file a photo copy of the same was got
prepared, which had been placed on the
record of this file. It was exhibited as
Exhibit Ka-2.

On being cross-examined, this
witness has stated that accused-persons
have not been named in any F.I.R. There
was no eye-witness account of the
incident. No identification proceedings of
recovered articles had been conducted. He
did not remember whether copy of the
recovery memo had been provided to the
accused persons or not. It was also not
known to him as to who made call to the
complainants to come to the spot. The
recovered articles were not produced
before him. It is wrong to state that the
accused
persons
had
been
falsely
implicated after arresting them from their
homes and showing false recovery.

Accused
persons
were
not
named in the first information report nor
any identification parade was conducted
in accordance with law nor identification
proceeding of recovered articles was got
conducted nor copy of the recovery was
given to the accused persons nor there
was any eye witness account of the
occurrence of theft. Meaning thereby, it
was a cooked-up and concocted story set
up by the Police and as such 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. PW-3, Shamshad Ahmad, retired
Sub-inspector, in his testimony has stated
that on 2.11.2006, while having been
posted as Sub-inspector at P.S. Kotwali,
Lalitpur, he has been entrusted with
investigation of the Case Crime no.
1150/12, U/s 457, 380, 411 I.P.C. against
unknown
accused
persons.
After
receiving copy of the report, Chik F.I.R.,
he got recorded statement of the scribe
and that of the complainant, namely,
Akhilesh Kumar, thenafter, inspected the
place of incident, the house of the
complainant, wherein occurrence of theft
said to have taken place and prepared the
site-plan on the spot, which was paper no.
12ka/5, in his handwriting and signature.
It was marked as Exhibit Ka-3.

On 14.8.2012, while, he, along
with S.H.O. Uday Bhan Singh, was
engaged in search of the wanted criminals
in the area, they were called by the S.O.G.
In-charge
Sumit
Kumar
at
Varni
Chauraha, and after being told the
purpose, reached at the temple of Chandi
Mata and parked the official Jeep and
reached Cremation Ghat, where, upon
pointing of the informer, found accused
persons sitting thereat. Thereupon, the
Police Team apprehended persons threat,
238 INDIAN LAW REPORTS ALLAHABAD SERIES
along with articles. Site-plan, paper no.
12ka/4, of the place, where the accused
persons had been apprehended, was got
prepared, whiche was in his handwriting
and under his signature. It was Exhibit
Ex.Ka-4. He had entered the copy of
recovery of the articles in the C.D. and
recorded the statements of accused
persons namely Nawal Kishore, Bunty,
Jeetu Parihar. On 18.8.2012, having
received the copy of the report of the
arrested accused persons- Arvind Pal and
Raju Soni, they were taken into custody in
connection with case and thereafter after
making entry in respect thereof statements
of accused Raju Soni and Arvind Pal,
were recorded. On 20.8.2012, statement
of Const. Sumit Kumar, Const. Ranveer,
Const. Arun Kumar, Const. Omveer, SHO
Uday Bhan Singh, SI Subhash Yadav,
Const. Raghvendra Singh, Const. Sumit
Kumar, Const. Imran were recorded and
site plan paper no-12Ka/4, Exhibitt Ka-4,
of the place, where the accused have been
stated to be arrested, was also got
prepared. On 03.9.12, report with regard
to arrest of accused Raheem was received
and an entry to that effect has been made
in the Case Diary, and he has been taken
into police custody. On 18.9.12, the
statement of the accused Banti @ Vinod
has been recorded after being arrested.
Thereafter papers with regard to statement
of witnesses and the arrest memo were
prepared. Statement of Uday Bhan Singh
and other police personnel accompanying
him, SI Subhash Chandra Yadav, Const.
Bahadur Singh, SI Varun Pratap Singh,
Const. Aditya Kumar and Saroj Kumar
were recorded. He also inspected place of
occurrence and prepared site plan, bearing
his signature, Exhibit Ka-5. On being
pointed by the SHO Uday Bhan Singh,
inspected the gate no-2 of the District
Hospital. On 17.9.12, inspected the place
of occurrence on being pointed out by
Uday Bhan Singh and prepared the site
plan of the spot, which was in his
handwriting and under his signature.
Same was paper no-7Ka and was
exhibited as Exhibit Ka7. Thenafter,
recorded statement of Neeraj Nai and
Rajesh Sharma. On 20.9.12, on the basis
of all the evidences, filed the charge
sheet, marked as Exhibit Ka-8, which was
in
his
handwriting
and
under
his
signature.

In his cross-examination, this
witness has stated that he did not arrest
the accused Raju @ Rajendra Soni, nor
did recover any booty from him. He found
the accused in custody in the police
station. He made entries in the Case
Diary.
After
having
recorded
his
statement in the police station, filed the
charge sheet against him in this crime
number. No case property was produced
before him. However, he denied of having
filed a false chargesheet against accused
Raju @ Rajendra Soni.

On
being
cross-examined,
further, this witness, has stated that no
FIR was lodged against the above accused
persons, nor has anyone stated in first
information report having seen any one,
committing occurrence of theft, nor was
there any mark of identification of any
accused person nor there was any eye
witness account of occurrence. Any
specific mark of identification of stolen
article was also not mentioned in the
report. Neither identification parade of the
accused-persons nor of articles was
conducted. While mentioning fact of
calling the complainant on the spot, name
of the police personnel, who called him,
was not mentioned. Recovered articles,
which
were
shown
to
have
been
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
239
recovered, are usually available in every
family and are also available in the
market. Entries made in the G.D. by him
on 02.11.2006 were not before him nor he
remember what was the number of that
G.D. Whose statements were recorded by
him at what time in the C.D. is not under
his remembrance.

In the testimony of this witness,
who has Investigated this case crime
number, there appears to be material
contradiction. In his testimony, this
witness has stated that neither the accused
persons were arrested by him nor there
was any identification of the accused
persons nor of recovered articles. In the
first
information
report,
there
was
suspicion on the labours, who were
working in the house of the complainant,
whereas appellants, herein, were made
accused persons. Neither accused persons
were named in the first information report
nor there was any eye witness account of
occurrence of theft, which took place in
the house of the complainant. Meaning
thereby, testimony of this witness could
not have been relied upon by the trial
court, because of having contradiction.
Thus, testimony of this witness appears to
be shaky and is not worth credit, thereby,
does not support prosecution case in any
way.

14. P.W.-4, HC. 26, Amar Singh, in
his testimony, has stated that while he was
posted as Head Moharrir at Lalitpur
Kotwali
on
11.6.2012,
complainant
Akhlesh Kumar Sharma had given an
application, about this incident, on which
he had lodged case crime no. 1150/2012
u/s 459, 380 IPC vs Ganga Ram and
others. Chik FIR was in his handwriting,
under his signature, which was marked as
Exhibit Ka-9.

In his cross-examination, he
stated that he did not register any case
against Shivam that day nor did he
remember the name of the Kotwal who
was there. Other than the complainant, no
one else had accompanied him to the
police station. In written complaint, which
was given for registration of first
information report, name of any accused
person was not mentioned nor there was
any eye witness account of occurrence nor
there was any mark of identification of
accused. Who wrote complaint was not
known to him. In the testimony, this
witness has formally proved registration
of first information report wherein name
of accused persons was not mentioned nor
any specific mark of identification of
accused persons or of stolen articles was
there nor there was any eye witness
account of the occurrence. Meaning
thereby, testimony of this witness is of
formal nature and is of not much
relevance to the prosecution.

15. After careful scrutiny of
testimonies of the witnesses produced by
the prosecution, it is clear that testimonies
of witnesses produced by the prosecution,
is with full of variance with material
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
connecting with above offence of theft
240 INDIAN LAW REPORTS ALLAHABAD SERIES
was there on record nor any independent
public witness account was there and as
such in absence of any such evidence,
prosecution miserably failed to prove its
case.

16. Meaning thereby, neither identity
of recovered article was established nor
produced before the court nor alleged
recovered article was connected with above
occurrence of theft nor it was put under
identification proceeding. Hence, the very
essential requirement of theft, taking of
articles in above theft, with dishonest
intention, and possession of the same could
not be proved by the prosecution beyond
doubt. But, learned Trial Judge has passed
the judgment of conviction and sentence, as
above, literally, when no cogent evidence
was there.

17. 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'.

18. 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.

19. 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.

20. In present case, no evidence of
house breaking by night or lurking house-
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
241
trespass by appellants was there, except
alleged recovery of cash and one gold
ornament,
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 house and
locker of the Almirah or recovery of cash
from convict-appellants.

21. 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.

22. 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.

23. 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 nor any independent
public witness was there.

24. 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.

25. 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.

26. 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.

27. In view of what has been
discussed above, this Criminal Appeal
deserves to be allowed.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Accordingly, this Criminal
Appeal succeeds and is allowed. The
impugned
judgment
and
order
of
conviction dated 04.08.2018, 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.

29. 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.

30. Let a copy of this judgment
along with lower court's record be sent
back to the court concerned for immediate
compliance.
----------
(2019)10ILR A 242

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 5242 of 2018

Arvind Parmar @ Bunty Raja & 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. Indian Penal Code, 1860 - Sections
457, 378, 380, 411, 413 - convictappellants - Criminal Appeal, under
Section 374 (2) of Code of Criminal
Procedure, 1973 - Statement of accused
persons
under
Section
313
Cr.P.C.-
Presumption, under Section 114, Indian
Evidence
Act, 1872
-
judgment
of
conviction and sentence, awarded is
illegal, perverse and against the weight
of evidence on record. (Para 1,8,19 & 26)

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. (Para 24 & 25)

B. Indian Penal Code, 1860 - conviction,
under Section 457 IPC - 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. (Para 18)

C. Indian Evidence Act, 1872 - Section
114 - Presumption, under Section 114,
Evidence Act, can be drawn only when
the accused, when asked, is unable to
explain his possession. (Para 19)

Criminal Appeal allowed (E-7)

List of Cases Cited: -

1. Chhadami Vs Emperor, 41 Cr.L., 623(Ald.)

2. Trimbak Vs St. of M.P. AIR 1954 SC 39