JUDGMENT :

Ram Krishna Gautam, J.

This Appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (In short hereinafter referred to as ''Cr.P.C.'), has been filed by the convict-appellants, Arvind Parmar @ Bunty Raja, Rajan @ Rajendra, and Raheem Khan, against the judgment of conviction, dated 28.7.2018 and sentences awarded therein by the Court of Additional District & Sessions Judge/Special Judge (U.P. Dacoity Affected Area), Lalitpur, in Sessions Trial No. 49 of 2013 (State vs. Arvind Parmar @ Bunty Raja and others), arising out of Case Crime No. 1492 of 2012, under Sections 380, 411, 413 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 three years' rigorous imprisonment, with fine of Rs.5,000/-, each, under Section 411 IPC. In default of deposit of fine of Rs.10,000, they will have to serve six months' simple imprisonment and in default of deposit of fine of Rs.5,000/-, they will have to serve three months' simple imprisonment, with further direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this case crime number, with this contention that the Trial court failed to appreciate facts and law placed before it and the judgment, 28.7.2018, 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. Niraj Nayak, PW-1, lodged first information report on 24.7.2012, for occurrence of theft, said to have been committed in the night of 21.7.2012 to 23.7.2012, which was got registered as Case Crime No.1492 of 2012, under Section 380 Indian Penal Code (In short hereinafter referred to as ''IPC'), against unknown persons, at Police Station-Kotwali Lalitpur, District Lalitpur. On 14.8.2012, arrest of Arvind Parmar @ Bunty Raja, appellant no.1, Jeetu Parihar, Rajan, appellant no.2, and Naval Ahirwar, was alleged to have been made whereas Shivam Tiwari, Arvind Pal and Raheem Khan, appellant no.3, were said to have absconded. A joint recovery of golden ornament and cash, as written in the recovery memo, was said to have been made from joint possession of accused-appellants, who were apprehended. First information report was got lodged on 24.7.2012, whereas appellant nos. 1 and 2 said to have been arrested on 14.8.2012 by the PW-4, Sunit Kumar. Recovery was also said to have been made from appellant nos 1 and 2, and appellant no.3 said to have fled from the spot, whereas no such recovery was there, except concocted and planted one. Co-accused, Arvind Pal, Jeetu Parihar, Naval Ahirvar and Shivam Tiwari were discharged on the basis of same evidence in Sessions Trial no.49 of 2013, arising out of Case Crime No.1492 of 2012 whereas appellants, in the present Appeal, have been convicted and sentenced, vide impugned judgment. Prosecution failed to prove its case beyond reasonable doubt, even then judgment of conviction was passed. It was a false recovery and false implication. Hence, this Criminal Appeal, with a prayer for setting aside judgment, thereby acquitting the appellants.

3. Heard Sri Nanhe Lal Tripathi, learned counsel for the appellant and learned AGA, appearing for the State and gone through the impugned judgment as well as record of the Trial court.

4. From very perusal of the record, it is apparent that Case Crime No. 1492 of 2012, under Section 380 IPC, was got registered at Police Station- Kotwali Lalitpur, District Lalitpur on 24.7.2012, at 19.00 PM, for an occurrence of 21/23.7.2012, at the house of informant-Niraj Nayak, situated at Mohalla Azadpura, District Lalitpur, within the area of Police Station-Kotwali Lalitpur, District Lalitpur, against unknown thieves, for commission of offence of theft of golden and silver ornaments and cash from the house of the i