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A.F.R.

Case :- CRIMINAL APPEAL No. - 5201 of 2018

Appellant :- Arvind Parmar @ Bunty And 2 Others

Respondent :- State Of U.P.

Counsel for Appellant :- Ram Datt Dauholia,Nanhe Lal Tripathi

Counsel for Respondent :- G.A.

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 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

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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

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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 judgement 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, Dist