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

- **Citation:** (2019) 2 ILRA 242
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Criminal Appeal No. 5242 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-44725
- **Pages:** 13

## Headnote

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: -

## Text

_Characters 0–39,988 of 43,459. This is a partial read: ask again with offset=39988 for what follows._

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
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
243
(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
30.07.2018
and
sentences
awarded
therein, by the Court of Additional
Sessions
Judge/Special
Judge
(U.P.
Dacoity Affected Area), Lalitpur, in
Sessions Trial No. 53 of 2013 (State vs.
Arvind Parmar @ Bunty Raja and others),
arising out of Case Crime No. 1612 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, twelve years' rigorous
imprisonment, with fine of 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
10.08.2012 and a first information report
was lodged on 12.8.2012, as Case Crime
No.1612 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
10.08.2012,
but
first
information
report
was
lodged
on
12.8.2012. PW-2, S.I. Man Singh, 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-1, dated 12.08.2012,
244 INDIAN LAW REPORTS ALLAHABAD SERIES
was got lodged by the informant, Kalyan,
at
Police
Station-Kotwali
Lalitpur,
District Lalitpur, with this contention that
while, on 10.8.2012, he was away from
his home, in connection with some urgent
work, keeping his house lock, in the night,
occurrence of theft, by unknown thieves,
took place, by breaking lock and anklet of
silver, weight 500 gm, Kardhna of silver
(an ornament of waist for woman), weight
500 gm, and Rs.5,000/-, in cash, were
stolen, and other household goods were
scattered here and there.

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
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
245
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 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,
Constable 99 Sushil Kumar, PW-2, S.I.
Man Singh Pal, PW-3, S.I. Sunit Kumar
Singh, PW-4, Kalyan and PW-5, S.H.O.,
Retired, Uday Bhan 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 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. PW-1 is Constable 99 Susheel
Kumar, who, in his testimony, has
formally proved registration of first
information report, received by Post,
which was in respect of lodging of report
for occurrence of theft, on the basis of
which, he got a first information report,
being Chik No. 284/12, Case Crime
No.1612/2, under Sections 457 and 380 of
IPC, against unknown thieves, registered,
which was Exhibit No. Ka-1, in his
handwriting and under his signature.

Since first information report
was against unknown accused persons,
cross-examination was not done.

12. PW-2 is S.I. Man Singh Pal,
who, in his testimony, has stated that
some unknown persons on 10.08.2012,
having broken the lock of the house of
Kalyan s/o Gorelal, r/o 464 Civil Lines,
Laltipur,
committed
theft
of
cash,
jewellery, ornaments etc. An FIR in this
connection was lodged at the police
station on 12.08.2012, the investigation of
which was done by him. On 14.08.2012,
SOG In-charge Suneet Kumar and his
police team arrested the accused persons
Arvinda Parmar @ Bunty Raja, Rajan S/o
Govind
Singh,
Jeetu
Parihar
s/o
Parmanand, Nawal s/o Har Narain, R/o
Lalitpur from whom the articles related to
crime in the case crime nos. 1150/2012,
1210/2012,
1420/2012,
1492/2012,
701/2012,
778/2012,
1613/2012,
1617/2012, 1612/2012 u/s 457, 380 IPC
were recovered, and upon interrogation
name of other accused persons came into
the light. On 27.08.2012, SO Udaibhan
Singh, accompanied by the present
witness, Subhash Chandra Yadav, SI
Varun
Pratap
Singh
and
constable
Bahadur Singh, on reaching, Nehru
Nagar, while on surveillance duty for
246 INDIAN LAW REPORTS ALLAHABAD SERIES
locating the whereabouts of wanted, got
an information that the accused person
Shivam Tiwari, wanted in the aforesaid
case, is standing at the Bal Sudhar Grih
Road. On the aforesaid information, the
police personnel reached there where the
accused person after seeing the police
personnel tried to flee from the spot, but
Police managed to apprehend the accused
person Shivam Tiwari at 9:30 hours.
While he was being searched, Rs. 5000/-,
related to occurrence of theft, committed
in the house of informant, a gold ring
weighing around 1.5 gm, related to the
case crime no. 1492/2012, and a silver
silver box (Dibiya), in connection with
case
crime
no.
1420/2012,
were
recovered. The accused person, on being
investigated, confessed that he and his
accomplices, Arvinda Parmar @ Bunty
s/o Devendra Singh, Rajan s/o Govind
Singh
Bundel,
Jeetu
Parihar
s/o
Parmanand,
Nawal
Ahirwar
s/o
Harnarain, Arvinda Pal s/o Ram Sewak,
Bunty Dhobi, Rahim s/o Sagir, had
committed theft in the house of Kalyan,
s/o Gorelal, in the night of 10.08.2012.
From the aforesaid theft, he had got Rs.
5000/- as his share, which was recovered
from him.

On getting the information of
arrest and recovery of related articles,
present complainant of the case Kalyan
s/o Gorelal, Niraj Nayak s/o Shaligram
Nayak and Sanjay Tiwari s/o Sukhdev
Tiwari reached on the spot, who stated
about the thefts committed in their
houses, and identified jewellery and said
that that the recovered items had been
stolen from their houses. Recovery memo
was got scribed on the spot by S.I. Varun
Pratap Singh on the dictation of the S.O.
Recovered items were separately sealed
casewise. Sample seal was prepared on
which this witness as well as complainant
put their signatures. Accused also signed
the memo. A copy of memo was given to
the
accused.
Recovery
memo,
so
prepared, was Exhibit Ka-3 (Paper nos.
8ka/1 to 8ka/2).

On 13.8.2012, investigation of
the offences related to crime no 1612/12
was started by this witness, under sections
457, 380 IPC. On 2.9.2012, S.O Udaibhan
Singh, alongwith present witness, Man
Singh Pal, S.I. Subhash Chandra Yadav
and Constable Bahadur Singh left police
station in search of some lead and while
taking round via Nai Basti, Railway
Station, came to Sadan Sah four-way
Junction, on the information of the
informer, arrested, accused Raheem Khan
(appellant no.3) from Gate No. 2 of
District Hospital at 15.00 hours, on whose
personal search, one ring of yellow metal
of gold, weight about one gram and one
pair anklet of silver, weight about 150
gram, was recovered from his possession.
On being investigated, accused person
confessed to have committed theft in the
house of Balram Pachauri in the night of
14.6.2012 and this ring was given to him
as his share, likewise, in the night of
31.7.2012,
he
confessed
to
have
committed theft in the house of Niraj
Nayak and got anklet as his share, which
has been recovered from him. Arvind,
Naval, Jeetu, Batti and Arvind Pal were
also with him in commission of theft,
recovery of which has been made from
him. They committed various other thefts
in the city. Upon hearing information
regarding recovery, complainants had
come to the spot, who after seeing the
recovered items, identified them to be
theirs, which had been stolen. Recovered
items were sealed in separate clothes.
Sample seal was prepared. The recovery
memo was got scribed by him on
dictation of the S.O. Police personnel and
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
247
other witnesses put their signature on the
recovery memo after reading the contents.
A copy of memo was given to accused on
the spot and his signature was obtained.

In cross-examination, this witness
has said none of the complainants have
mentioned any mark of identification of
stolen articles nor receipt in respect thereof
was given. He also did not get it verified
from any jeweller whether this article is
pure metal or duplicate. Though arrest of
Raheem Khan was made from the gate of
District Hospital, which was a crowded
placed, but no independent public witness
was made because none was ready to
become a witness of arrest or recovery, so
made. He also did not note name and
address of the witnesses and, therefore, was
not able to even tell the name of witness. On
the spot, though he stayed for about one and
an half hour and prepared recovery memo,
but was not able to tell the boundary of the
spot. Though a copy of the recovery memo
was given to the accused persons, after
getting it signed by the accused, but at the
time of police custody, recovery memo was
not with the accused, though it was not
thrown before him. Neither there was any
specific mark of identification of the stolen
articles was mentioned in the report nor any
mark of identification of accused person
was there. Though at the time of recovery of
articles, informant did identify recovered
articles, but there was no mention of this
fact in the statement recorded in the case
diary. No receipt of recovered articles was
with the informant nor was there any paper
pertaining to his claim over recovered
articles. Such articles are usually used in
each house.

Meaning thereby, testimony of
this witness is full of variance and is
having material contradiction, which is
not trustworthy at all and prosecution
miserably failed to prove its case.

13. PW-3, Sub Inspector, Sunit
Kumar Singh, is witness of arrest of
accused and recovery of stolen articles.
He, in his testimony has stated that while
he, 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
248 INDIAN LAW REPORTS ALLAHABAD SERIES
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 commission of offence by
them under above Sections of 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, which was
signed by him, other police personnel as
well as by independent witness. It has also
been stated by this witness, in his
testimony, that on 18.8.2012, being
Incharge SOG, while, he was in the
search
of
suspicious
persons
and
criminals, on the information received
from informer, called Incharge, Kotwali,
Lalitpur, and with the informant of Case
Crime No.1612 of 2012, Kalyan, reached
Malu Petrol Pump where at four-lane bypass, informer pointed towards two
persons standing thereat, who have been
arrested at 11-30 AM. On making
personal search, one disclosed his name
as Arvind Pal, from whose possession
Kardhan of Silver (an ornament of waist
of woman), of white metal of 300 gm,
was recovered and the second one
disclosed his name as Rajendra Soni,
from whose possession, anklet of silver of
white colour, and Rs.10,000/- in cash was
recovered. On being investigated, Arvind,
admitted his mistake and said that he was
having friendship with Shivam Tiwari and
Bunty. They were having a gang and were
committing occurrence of theft and stolen
articles were being sold to Raju Soni. On
that day, they were selling the articles,
stolen from the house of the informant to
Raju and the articles which were
recovered from Raju, were stolen from
the house of Balram Pachauri, out of
which he got Rs.10,000/- as his share,
which he gave to Raju Soni as loan.
Informant identified Kardhan of silver
and anklet thereat. Recovery memo
(Exhibit Ka5) was prepared on the spot,
which was signed by this witness as well
as by the informant.

One bundle was opened before
the court from which Rs.12,000/-, in cash,
one chain of yellow metal (of gold), was
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
249
taken out, from second bundle one pair
ear ring (Jhala) and from another bundle,
one Mangal Sutra was taken out, which,
after being seen by the witness, has been
said to have been recovered on 14.8.2012
from the joint possession of Arvind
Parmar, Govind Singh, Jitu Parihar and
Naval Ahirwar, and were verified by the
witness. From one other bundle three
rings of gold, Rs.32,000/-, in cash, and
one golden pendent was recovered.
However,
in
cross-examination,
this
witness, has stated that the recovered
articles were not before him. He was not
investigating case Crime No. 1612/12.
About informant, he was informed by
Incharge, Kotwali, Uday Bhan Singh.
Informer gave information before him,
but did not tell that stolen articles,
pertaining to Case Crime No.1612/12,
were with the accused persons. On being
asked by Incharge, Kotwali, informant of
Case Crime No.1612/12, Kalyan, was
called. Though the place, from where
accused were arrested, was crowded one,
but none from the public was called as
witness. Nothing was recovered from
accused, Arvind Pal. There was no
specific mark of identification on the
recovered anklet nor it was enquired from
the informant as to on what basis
recovered articles were being claimed by
him of his article. He did not get signature
of informants of various reports, except
Prem Lata Jain and Gita. Accused persons
were not named in any first information
report nor any mark of identification nor
age of accused persons were mentioned in
the first information report. In between
informed place and Cremation Ghat, there
were several houses and traffic was also
there, but none from public had been
asked to accompany the Police. Meaning
thereby, testimony of this witness is full
of material contradiction and shaky and
appears to be concocted and cooked-up
story, without any concrete evidence or
cogent material to corroborate testimony
given by this witness. There was no
independent public witness of the arrest
and the recovery made from the accused
persons, though the place was crowded
one, as stated by the witness in his
testimony. Therefore, renders testimony
doubtful and as such cannot be relied.

14. PW-4, Kalyan, is the informant
of the present case crime number, who, in
his
testimony,
has
stated
that
on
10.8.2012, he, alongwith his other family
members, was living in the house of
Vimlesh Kumar Jain, on rent. On that day,
after locking his house, when he went out
of station, in connection with some urgent
work, and came back on third day, found
the locks of his house were broken and
upon entering into the house, he has seen
that all household articles were scattered
here and there and silver anklet of 500 gm
and Rs.5,000/-, in cash, kept in a bag,
were stolen by unknown thieves. He has
lodged a first information report of this
occurrence at the Police Station against
unknown thieves, Paper no. 5K, having
his signature and exhibited as Exhibit K6. After 10-15 days, he came to know that
Police has arrested some thief at Juvenile
Jail Road, Nehru Nagar and he reached
thereat. One thief caught by the police
was sitting there, who disclosed his name
Shivam Tiwari from whose possession
Rs.5,000/-, in cash, alleged to have been
recovered, which was confessed by the
accused Shivam Tiwari to have been
stolen from his house. Anklet, Kardhani
(an ornament of waist of woman) and
cash money, stolen from his home, has
been handed over to him. While, being
cross-examined, this witness has stated
that though he produced receipt in respect
250 INDIAN LAW REPORTS ALLAHABAD SERIES
of stolen articles, but the same were not
on record. He was not having bill of
stolen articles. Stolen articles were
purchased by him from shop. After ten
days, Inspector called him. Inspector
recorded his statement on the date of
lodging of report itself. At the place,
where he met with Inspector, 2-4 persons
were standing. Inspector told name of
arrested person Shivam Tiwari. He did
not recognise Shivam Tiwari. Shivam
Tiwari is not appellant in the present case.
Meaning thereby, it was all the story
cooked-up by the Police. Neither there
was any independent public witness of the
arrest nor of recovery of stolen cash nore
any specific mark of identification of
stolen case was there. The testimony of
this witness is of no relevance to the
prosecution because in the present case
Shivam is not under Appeal and present
appellants
were
not
apprehended
alongwith accused-Shivam Tiwari.

Meaning
thereby,
informant
neither has seen anyone, while committing
theft in his house nor was there at the time
when locks of her 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, testimony of 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.

15. PW-5 is, SHO, Retd. Uday Bhan
Singh. This witness, in his examinationin-chief, has stated that on 27.8.2012,
while, being posted as SHO Kotwali, he
with his accompanying Police team, Man
Singh Pal, S.I Subhash Chand, S.I Varun
Pratap Singh, and other constables went
to Nehru Nagar, Bachha Jail Road, and
arrested accused Shivam Tewari in the
matter of a case of theft. On making
personal search, Rs. 1000/- cash, a gold
ring and a white silver small box (Dibiya)
were recovered from him as stolen goods.
He, on being enquired, disclosed names of
all the accused involved in the theft. Non
one from the public, present there, was
ready to become a witness. Complainant
of the case was called on the spot to
identify stolen articles. He verified them.
He had mentioned details of the goods in
the memo,Ext. Ka3. He further stated that
on 17.9.2012, he, along with S.I Man
Singh Pal, S.I Shamshad Ahmad and
other accompanying constables, during
patrolling, when reached Govind Sagar
Dam, an informer gave information that
an accused of theft was going towards
Puliya. On being caught, he disclosed his
name Banti @ Vinod Rajak. Articles
stolen by him and anklets of silver,
weighing 250 gram, were recovered from
him. On being investigated, he confessed
to have committed theft alongwith coaccused on 21/07/12 in the house of
Neeraj Nayak, r/o-Azadpur. Recovery
memo was prepared on the spot and it was
marked as Ext ka-6. Site plan of place of
recovery, prepared by S.I. Man Singh
from where recovery from accused
Shivam Tiwari was made on 19/09/12. (
Ext ka-7)

On being cross-examined, this
witness has stated that Banti Dhobi was
not named in first information report. It
was against unknown thieves. There was
no eye-witness of this incident. There was
no specific mark of identification of the
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
251
goods stolen nor of thief in first
information report. No proceedings for
identification of recovered articles nor of
accused were conducted. He did not
remember whether copy of memo was
recovered from accused or not. He also
did not remember as to whether entry of
recovered goods were made or not.
Articles recovered from Shivam were not
produced in the court. Rupees 5000/-
cash, gold ring and one small box of
silver had been recovered from Shivam,
but did not remember the denomination of
currency notes. Articles, pertaining to
three occurrence of theft, have been
recovered from Shivam. Rupees 5000/-,
in cash, from Kalyan's house, ring from
Neeraj Nayak's house and small box of
silver from Sanjay Tiwari had been
stolen. He had given the statement on the
basis
of
recovery
memo.
Meaning
thereby, though accused Shivam and
Bunty @ Vinod Rajak were arrested and
recovery was made, but there was no
public witness of arrest and the recovery,
so made, which makes testimony of this
witness
unreliable,
having
full
of
variance, with material contradiction and
is shaky as such does not support case set
up by the prosecution. Moreover, Shivam
and Banty @ Vinod Rajak, are not
appellants in this Appeal and as such their
statement, given to the Police, will have
no bearing on the case of the appellants.

16. 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, in the absence of any
independent
public
witness
or
any
corroborative evidence, that too, when
they were apprehended by the Police,
which was not admissible in evidence. If
entire prosecution case is admitted for the
sake of argument, it may be said that
those accused persons were apprehended
with possession of those recovered
articles, but there is neither any specific
mark of identification nor there is any
corresponding evidence for connecting
with above offence of theft was there on
record, which was not there and as such in
absence of any such evidence, prosecution
miserably failed to prove its case.

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 nor there was any independent
public witness or any corroborative
evidence. 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,
252 INDIAN LAW REPORTS ALLAHABAD SERIES
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 housetrespass by appellants was there, except
alleged recovery of cash and 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 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
2 All. Arvind Parmar @ Bunty Raja & Ors. Vs State of U.P.
253
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.

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
and ornaments 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.

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.

28. Accordingly, this Criminal
Appeal succeeds and is allowed. The
impugned
judgment
and
order
of
conviction dated 30.07.2018, 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.

29.