Allahabad High Court
State Of U.P. (At: 02:00 P.M.) vs Anil Kumar Rathore on 30 January, 2013
Author: Anurag Kumar
Bench: Anurag Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 13 Reserved Case :- CRIMINAL APPEAL No. - 611 of 2005 Petitioner :- State Of U.P. Respondent :- Anil Kumar Rathore Petitioner Counsel :- Govt.Advocate Respondent Counsel :- Dr.Manoj Dubey,Rakesh Kumar Tripathi,Sanjay Kr. Singh Hon'ble Anurag Kumar,J.
This appeal has been preferred by State against judgment and order dated 04.04.2001 passed by Xth Additional District and Sessions Judge, Sitapur, in S.T. No. 207 of 1998, under Sections 272 and 284 I.P.C., P.S. Kotwali, Sitapur acquitting the accused/respondent Anil Kumar Rathore.
The brief facts of the case are that the complainant Dhananjay Kumar Santoshi wrote a letter to Director Medical Health stating that he has purchased two tin Mustard oil from Anil Kumar Rathore in the 2nd week of June. From the use of that mustard oil, his entire family got serious ailment. He has to admit his mother Smt. Sarla Devi on 02.08.1994 in District Hispital Sitapur and on 02.09.1994 his sister Upasana Saxena to P.G.I. Lucknow. His younger brother Angdhwaj Santoshi also got dysentery and diarrhea due to use of that oil. On 06.09.1994, he came to know that due to use of this oil his mother, sister and brother fell seriously ill. No action by District Health Officer and C.M.O. was taken and after several complaints on 12.10.1994, Food Inspector took the sample of pure mustered oil and not that mustard oil due to use of which all the persons got serious ailment. On this application, an F.I.R. was registered against respondent Anil Kumar Rathore under Sections 272 and 284 I.P.C. After investigation, charge sheet was submitted against accused Anil Kumar Rathore under Sections 272 and 284 I.P.C. and 7/14 Prevention of Food Adulteration Act. The case was committed to Sessions Court and Ninth Additional Sessions Judge on 21.01.1994 framed charges against the respondent Anil Kumar Rathore under Sections 272 and 284 I.P.C. Prosecution examined P.W.-1 Rakesh Kumar. No other witness was examined by prosecution inspite of several opportunities. Formal proof of prosecution papers were admitted by accused and typed application was marked as Ext. Ka-1, F.I.R. as Ext. Ka-2, Copy of G.D. as Ext. Ka-3, site plan as Ext. K-4 and charge sheet as Ext. Ka-5. The learned trial judge Xth Additional District and Sessions Judge, Sitapur passed impugned judgment dated 04.04.2001 acquitting the accused respondent Anil Kumar Rathore of the charges under Sections 272 and 284 I.P.C.
Aggrieved by the said judgment, State preferred this appeal mainly on the ground that the judgment of the trial court is against the facts and circumstances of the case. The judgment was based on wrong interpretation of the evidence available on record. The prosecution evidence produced by prosecution in the trial court is sufficient to prove the guilt of the accused. Even after service of summon, the trial court court did not provide proper opportunity to prosecution to examine those witnesses and thus committed grave illegality. The appeal is liable to be allowed and the trial court's judgment is liable to be set aside.
Heard learned A.G.A. for State and Mr. Rakesh Kumar Tripathi for respondent accused Anil Kumar Rathore.
Learned A.G.A. submitted that proper opportunity was not awarded to prosecution to produce his entire evidence. Summons were served. Even after service of summon on witness, no opportunity was provided for their examination. The genuineness of documents was accepted by the accused, hence prosecution fully proved his case against the accused and the appeal is liable to be allowed.
Learned counsel for the respondent opposed the contention of learned A.G.A. and submitted that the trial court's judgment is fully based on the evidence on record. Prosecution totally fails to examine any witness except P.W.-1 Rakesh Kumar. It is the duty of the prosecution to examine all the witnesses, but in spite of several opportunities awarded by the trial court, prosecution totally failed to examine the witnesses. There is no illegality or irregularity in the judgment of the trial court. The appeal has got no force and is liable to be rejected.
After giving the thoughtful consideration to the submission of both side and going through the record, it is clear that prosecution examined only one witness P.W.-1 Rakesh Kumar and no other witness was examined by prosecution. P.W.-1 Rakesh Kumar is witness of the fact that the complainant purchased two tin of mustard oil from the shop of accused, but P.W.-1 Rakesh Kumar did not support the prosecution version. He denied that the complainant ever purchased any mustard oil tin before him from respondent. This witness was declared hostile and the evidence of P.W.-1 Rakesh Kumar did not support the prosecution case in any way. Except P.W.-1, no other witness was examined. The complainant and other witnesses of fact who are his family member i.e. mother, brother and sister were not found at the given address as per report on the summon issued. It was reported that they have left the said place after selling it. Prosecution totally failed to examine any witness except P.W.-1, who did not support the prosecution version.
The next submission of learned A.G.A. is that as the prosecution accepted the genuineness and dispense the formal proof of typed complaint/F.I.R., the case of prosecution was fully proved. I find no force in his submission because if defence dispenses the formal proof of any document, the result of it is that document is not to be proved by prosecution. Formal proof of documents if dispense then documents ought to be read in evidence only. From lodging the F.I.R. or submitting written report does not prove any case against the accused person. It only shows that there is a complaint against accused regarding committing of an offence. Until and unless from the entire evidence committing of any offence is not proved an accused person cannot be held guilty of that offence. It is the duty of the prosecution to prove his case beyond reasonable doubt against accused, in which he totally failed.
In an appeal against acquittal, the High Court would be justified in reversing the acquittal only when very substantial question and compelling reasons are present.
Hon'ble Apex Court in Umedbhai Jadavbhai v. The State of Gujarat (1978) 1 SCC 228, observed as under:-
" In an appeal against acquittal, the High Court would not ordinarily interfere with the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest erros of law or of fact resulting in miscarriage of justice."
And Hon'ble Apex Court in Ghurey Lal v. State of U.P. (2008) 10 SCC 450, summarized the legal position as follows in para 69:
"69. The following principles emerges from the cases above:
1. The appellate court may review the evidence in appeals against acuqittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
It is clear from the above, that in appeal against acquittal the trial court's finding can only be interfered and reversed on compelling reasons and when conclusion with regard to the fact is palpably wrong and the decision was based on erroneous view of law and judgment is likely to result grave miscarriage of justice.
From the above discussion, it is clear that in the present case no such circumstances are there to support prosecution version and from the evidence on record, there is nothing which supports his version for setting aside the order of acquittal. I find no force in present appeal and the present appeal is liable to be dismissed. Accordingly, this appeal is dismissed.
Order Date :- 30.01.2013 kkm/