Rajasthan High Court - Jaipur
Public Prosecutor vs Gopal Ojha S/O Shri Sarya Prakash Ojha ... on 17 April, 2023
Author: Ashok Kumar Jain
Bench: Ashok Kumar Jain
[2023/RJJP/007105]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Leave To Appeal No. 346/2018
Public Prosecutor, Through Railway Protection Force, Ajmer
Division, Ajmer, Raj.
----Appellant
Versus
Gopal Ojha S/o Shri Sarya Prakash Ojha, Resident Of House No.
1356/32, Alwargate Ajmer At Present ICRC PRS, Bhilwara.
----Respondent
Connected With S.B. Criminal Leave To Appeal No. 345/2018 Public Prosecutor, Through Railway Protection Force, Ajmer Division, Ajmer, Raj.
----Appellant Versus Suresh Chand S/o Shri Bhanwarlal, By Caste Bishnoi, Resident Of Near Vedwati School, Jawahar Nagar, Bhilwara
----Respondent For Appellant(s) : Mr. A.K. Khushwant, Special PP for Railway Protection Force For Respondent(s) : Mr. S.S. Mahla, PP for State of Rajasthan Mr. Anil Sharma Mr. S.P. Dhanera HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Order Date of Reserve:- 02/02/2023 Date of Pronouncement:- 17/04/2023 These leave to appeals were preferred against order of acquittal dated 25.05.2018 in criminal appeal No. 05/2018 and 06/2018 passed by learned Additional Sessions Judge No.1, Ajmer whereby order of conviction and sentence dated 24.01.2018 in criminal case No. 3671/2013 recorded by learned ACJM (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (2 of 10) [CRLLA-346/2018] (Railways), Ajmer was reversed and respondent accused were acquitted from the charge under Section 143 of the Railways Act, 1989.
Aggrieved from order of acquittal by first appellate Court, present leave to appeals were preferred by appellants on multiple grounds and some of them were interferred by learned appellate Court without application of correct law; the statement recorded by RPF officer cannot be treated as confessional statement recorded in contravention of Article 20(3) of Constitution of India and Section 25 of the Indian Evidence Act; irregularity during investigation cannot be a ground to doubt the case of prosecution; no prosecution sanction is required in case like Railways Act and if any objection is raised, the same has to be raised at early stage of trial and also discrepancies as suggested or evidence of hostile witness can be relied upon for recording conviction.
The facts of the matter in nutshell are that a complaint was filed with the allegation that on 02.01.2013, at the time of inspection by a team of Railways, it was found that respondent Suresh Chand and Gopal Ojha were indulged in malpractice of illegal booking of reserved railway tickets.
Learned counsel for appellants submitted that the evidence of PW-2 (Amrik Singh), PW-1 (Goverdhan Ram) and PW-3 (Bhagwati Prashad) had clearly established the charge beyond reasonable doubt and learned trial Court has rightly arrived at a conclusion on the basis of this evidence but learned appellate Court failed in appreciating the evidence so adduced by the prosecution. He further submitted that in the deposition made by PW-2, it is made clear that both respondents were in connivance (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (3 of 10) [CRLLA-346/2018] and were indulged in procuring and supplying of railway tickets to passengers on profiteering basis. He further submitted that even if PW-4 and PW-5 were declared hostile, they have admitted certain facts and deposed against the respondent and same can be relied upon by the Court. He further submitted that respondent Gopal Ojha was booking clerk of railway office and he was duty bound to observe the rule of business as promulgated by Railways which includes declaration of in-pocket amount before sitting as booking clerk on the booking window. He further submitted that the evidence suggested that there was shortage of cash at the counter but undisclosed cash along with differently booked tickets was found in suspicious manner but learned appellate Court failed to notice the aforesaid evidence as led by the witnesses of prosecution. He further submitted that the statement of respondents were recorded by PW-2 and same are admissible as an evidence because the same are not hit by Section 25 of the Indian Evidence Act. He further submitted that the evidence of hostile witnesses can be considered by the Court while arriving at a conclusion and any irregularity during investigation cannot be a ground to doubt the case of prosecution but learned appellate Court failed in appreciating the fact that evidence as recorded by learned trial Court. He further submitted that the judgment of learned appellate Court is thoroughly unconvincing and is based on surmises and conjectures. He submitted that this is a fit case wherein indulgence of this Court is required in interfering and setting aside the order of acquittal passed by first appellate Court.
While referring the judgment of the Hon'ble Supreme Court in the cases of State of U.P. Vs. Vyas Tiwari (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (4 of 10) [CRLLA-346/2018] (Manu/SC0247/1980) and Balkishan A. Devidayal & Ors. Vs. State of Maharashtra & Ors. (MANU/SC/0112/1980), it is submitted that RPF officers are not considered as police officers and any statement recorded by RPF officer is not hit by Section 25 of the Indian Evidence Act or Article 20(3) of Constitution of India. He further referred the judgment of the Hon'ble Supreme Court in case of State of Rajasthan Vs. Kishore (MANU/SC/0795/1996) to make a submission that irregularity during investigation would not be enough to caste doubt on the case of prosecution. Further reliance is placed on judgment passed by the Hon'ble Supreme Court in the case of Shivanna Vs State (MANU/SC/0719/2010), to fortify the argument that site plan only indicated the place of incident and nothing more can be accepted. Similarly in the case of Gagan Kanojia & Ors. Vs. State of Punjab (MANU/SC/8726/2006), it was observed the that extra-judicial confession if made thoroughly and if proved it can be relied upon by the court to record the conviction. Similarly, reliance was placed upon judgment of the Hon'ble Supreme Court in the case of Pravin Vs. State of Madhya Pradesh (MANU/SC/7365/2008), whereby it was held that if discovery was proved and no explanation was offered then conviction can be sustained. Further, reliance was placed upon judgment of Hon'ble Supreme Court in the case of Om Prakash Vs. State of Haryana (MANU/SC/756/2011) to submit that discrepancy or minor contradictions made in statement of witness because of lapse of time keeping in view the educational and other background of witness cannot be treated as fatal to the case of prosecution. The Court must examine the statement in its entirety, correct (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (5 of 10) [CRLLA-346/2018] perspective and in light of attending circumstances brought on record by the prosecution. Similarly, reliance was also placed on judgment passed by the Hon'ble Supreme Court in the case of Bhajju Vs. State of M.P. (MANU/SC/0212/2012) to support the argument that the evidence of hostile witnesses can be relied upon by the prosecution to the extent to which they have supported the prosecution. In case of Abdul Wahab Ansari Vs. State of Bihar & Ors. (MANU/SC/0643/2000), it was held that any objection as regard to sanction under Section 197 Cr.P.C. can be raised and considered at any stage of proceedings. In case of Khet Singh Vs. Union of India (Appeal (crl.) No. 31 of 2000) it was relied upon to fortify the contention that even if there is any sort of illegality in conducting search and seizure, the evidence collected thereby will not become inadmissible and court would consider all the circumstances to find out whether any serious prejudice had been caused to the accused. At last, reliance was placed upon judgment of a Co-ordinate Bench of this Court in the case of Mangu Singh Vs. State of Rajasthan 2013 (1) CJ(Cri.) (Raj.) 373 wherein it was held that witnesses turning hostile after admitting the signature on documents seems that content of document will be accepted as true.
Aforesaid contentions were opposed by learned counsels for respondents on the ground that against the order of conviction and sentence, an appeal was preferred before first appellate court and after appreciating the grounds as raised by respondents, learned appellate Court had allowed the appeal and acquitted respondent from the charges levelled by appellant. He further submitted that respondent Gopal Ojha is a railway employee and (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (6 of 10) [CRLLA-346/2018] working as a booking clerk and admittedly Section 143 of the Railway Act does not apply to him but learned trial court without appreciating the correct position of law had convicted respondent Gopal Ojha. He further submitted that respondent Gopal Ojha is liable for protection under Section 186 of the Railways Act and also Section 197 of the Cr.P.C. but learned trial court failed in appreciating the correct position of law. He further submitted that it was the duty of appellants to obtain prosecution sanction before submitting the criminal complaint against respondent Gopal Ojha but learned trial court without any reason had proceeded and ultimately it was first appellate Court who appreciated the fact and reversed the finding of learned trial court. He further submitted that once the finding of acquittal is recorded then it is not easy for any appellate Court to reverse the findings or substitute the view as expressed by the court below. He further submitted that there are serious discrepancies in the evidence produced by the prosecution and while referring the cross examination of PW-1 to PW-3, he specifically cited that these witnesses have contradicted the deposition made in examination-in-chief and same goes to root of the matter. He further submitted that not a single individual was produced to prove the fact that respondents were involved illegally and carrying the business of procuring and supplying railway tickets to passengers. Herein, he further referred the evidence and provisions under Section 143 of Railways Act and submitted that the evidence clearly indicated that respondent Suresh was not caught red handed at the spot, while procuring railway tickets for benefit of any individual. He further submitted that no cash was recovered from Suresh and it (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (7 of 10) [CRLLA-346/2018] was not proved that Suresh was in connivance with other respondent Gopal Ojha in procuring the railway tickets. He further submitted that these are leave to appeals and ordinarily leave to appeal should not be granted unless there are cogent reasons to interfere in the judgment of acquittal.
While relying upon the judgment of Allahabad High Court in the case of State of U.P. vs. Pratibha Dubey (Government Appeal No. 158 of 2020 dated 05.08.2021), it is submitted that Hon'ble Supreme Court has held that if two views of evidence are reasonably possible, then one supporting acquittal should be considered. In this case, reliance has been placed on judgment of the Hon'ble Supreme Court in case of State of Karnataka Vs. K. Gopalkrishna reported in (2005) 9 SCC 291, Babu Vs. State of Keral (2010) 9 SCC 189 and Dilawar Singh Vs. State of Haryana (2015) 1 SCC 737. Similarly, judgment in case of State of Kerala Vs. Ratheesh & Anr. Criminal LP No. 79/2022 order dated 28.02.2022 is submitted in support of argument that unless there is a prima facie case or an arguable case, leave cannot be granted. Similarly, in judgment of Hon'ble High Court of Allahabad, in case of State of UP Vs. Zafar Abbas, application under Section 378 No. 54/2017 order dated 02.03.2022 was submitted that leave to appeal can be granted only where a view expressed by learned Judge is clearly unreasonable. In case of State of U.P. vs. Pratibha Dubey (supra) it was held that Section 143 (1) of Railway Act is not applicable on railways employee though Section 143 (2) is attracted on railways employee.
(Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (8 of 10) [CRLLA-346/2018] Heard learned counsel for appellants and learned counsel for respondents. Perused the record and also the judgements of Hon'ble Supreme Court and High Courts as submitted by both parties.
Herein, the record of learned trial Court indicates that Suresh Chand and Gopal Ojha were charged under Section 143 of the Railways Act a direct charge was framed on both of them in similar fashion. The language of charge on Gopal Ojha clearly indicated that no charge of abetment was framed on him, thus the charge explained on factual aspect related to Section 143 (1) of the Railways Act. When we look at the provision Sections 143 (1) of the Railways Act, then same reads as under:-
"Penalty for unauthorised carrying on of business of procuring and supplying of railway tickets.--
(1) If any person, not being a railway servant or an agent authorised in this behalf,--
(a) carries on the business of procuring and supplying tickets for travel on a railway or from reserved accommodation for journey in a train; or
(b) purchases or sells or attempts to purchase or sell tickets with a view to carrying on any such business either by himself or by any other person, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees, or with both, and shall also forfeit the tickets which he so procures, supplies, purchases, sells or attempts to purchase or sell:
Provided that in the absence of special and adequate reasons to the contrary to be mentioned in judgment of the court, such punishment shall not be less than imprisonment for a term of one month or a fine of five thousand rupees."
Aforesaid clearly indicates that charge under Section 143(1) can be levied upon any individual who is not a railway employee (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (9 of 10) [CRLLA-346/2018] as it has been held by Hon'ble High Court of Allahabad in case of State of U.P. vs. Pratibha Dubey (supra) as well.
The charge of abetment can be framed upon Gopal Ojha under Section 143(2) of the Railways Act but language of charge clearly suggest that no charge of abetment was framed upon Gopal Ojha, thus, this is a serious infirmity or illegality as being pointed out from the record. When we look at criminal complaint Ex.P-30, no words like abetment was used in any manner. Thus, from this very inception, even railways official who preferred the criminal complaint have made wrong statement before the learned trial Court hence no charge of abetment was made on respondent Gopal Ojha by learned trial Court.
Now when we look at star witness PW-2, then the fact of the matter is that admission of this witness in cross-examination that he had not seen anyone taking any commission of sale or purchase of any ticket. Again, the admission clearly indicated that no complaint against Suresh was received. The only admission which impacted the case is that no extra money was recovered from any person. The fact is that on the spot, no unauthorised transaction was caught by the team. Similar admissions were made by PW-1 and PW-3 which also consists another witness PW- 6 Raj Kapoor Singh. The statement in cross-examination has clearly indicated that whatever is stated in examination-in-chief, it same was contradicted in cross-examination, thus a doubt was casted upon the depositions of these witnesses resulting into acquittal by learned appellate Court. It is a general principle that suspicion, howsoever strong it maybe cannot take place of proof (Downloaded on 11/11/2023 at 04:57:36 PM) [2023/RJJP/007105] (10 of 10) [CRLLA-346/2018] and where the entire case is based on suspicion, therefore, conviction cannot be sustained.
Another principle of law is that while dealing the case, opinion of superior court cannot be substituted on the opinion of court below who recorded the acquittal unless there are reasons to interfere thus, interference in order of acquittal may not be interfered in ordinary manner. The impugned order so recorded clearly indicated that after assigning the reasons, order of acquittal was recorded by first appellate Court and since it is an appeal filed under section 378 (4) Cr.P.C., it is covered by principle of law laid down by Hon'ble Supreme Court in case of State of Maharashtra Vs. Sujay Mangesh Poyarekar [(2008) 9 SCC 475] and State of Maharashtra Vs. Shanker Ganapati Rahatol & Ors. (2020) 11 SCC 608, thus this Court cannot interfere unless there are sufficient reasons to interfere. The judgments on the principle of law as cited by learned counsel for appellants would be helpful only when the cogent and sufficient reasons of acquittal were recorded but a bare reading of order passed by learned appellate Court would not suggest that this order was passed on surmises and conjectures, therefore no case is made to interfere in order of acquittal passed by first appellate Court in criminal appeal No. 05/2018 and 06/2018, thus leave to appeals are liable to be dismissed.
Accordingly, the leave to appeals are dismissed. Misc. Applications, if any, stand disposed of.
(ASHOK KUMAR JAIN),J PREETI VALECHA /44-45 (Downloaded on 11/11/2023 at 04:57:36 PM) Powered by TCPDF (www.tcpdf.org)