# Hargovind & Anr. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 153 of 1991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-11-24
- **Case number:** Criminal Appeal No. 153 of 1991
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hargovind-anr-in-jail-v-state-of-u-p-46184
- **Pages:** 9

## Headnote

A. Criminal law-Criminal Procedure Code
(2 of 1974) - Section 154 - FIR - Delay -
No plausible explanation for delay of 16
hours in registering FIR by complainant -
Held - adverse inference that FIR lodged
with due deliberation and consultation -
delay fatal to the prosecution case (Para
19)

B. Evidence Law-Evidence Act (1 of 1872)
- Section 3 - Contradiction - Material
contradictions
in
testimonies
of
prosecution witness - as per FIR main
door opened by Ram Ratan however P.W.
3 stated that both miscreants opened the
door - Another contradiction that there
are 3 miscreants however P.W. 2 clearly
stated only two miscreants in the incident
- contradiction corrodes the credibility of
witness - no reliance can be placed (Para
22)

C. Criminal Law-Indian Penal Code (45 of
1860) - Section 393 - Attempt to commit
robbery - Allegations that accused persons
intended/tried to snatch anklets from the
feet of victim however on hearing noise
one miscreant fired two rounds - Held - In
3-5 All. Hargovind & Anr. Vs. State of U.P.
91
the present case, alleged gun shot fired by
the appellants do not intend to carry away
any property as no property was taken
away by the appellants - not a case u/s
393 IPC (Para 30)

Appeal allowed (E-5)

List of cases cited :

1.Lal Man Vs St. of U.P. 1990 0 Supreme Court
(All) 1871

2.Jaggi & ors Vs St. of U.P. 2014 (2) Law Suit
(All) 4219

3.Thulia Kali Vs St. of TN AIR 1973 SC 501

4.Dalip Singh & ors. Vs St. of Pun AIR 1953 SC
364

5.Masalti & ors. Vs St. of U.P. AIR 1965 SC 202

6.Guli Chand & ors. Vs St. of Raj. 1974 (3) SCC
698

7.Vadivelu Thevar Vs St. of Mad AIR 1975SC
614

8.Israr Vs St. of U.P. 2005(51) ACC 113

9.Galivenkataiah Vs St. of A.P. 2008 (60) ACC
370

10.St. of AP Vs S. Rayappa & ors. 2006 (1) AAR
259 (SC)

11.Ranganayaki Vs St. (2004) 12 SCC 521

12.Mangaru & ors. Vs St. of U.P. 2008 (62) ACC
40

## Text

90 INDIAN LAW REPORTS ALLAHABAD SERIES
Trial Court has elaborately discussed the
evidence led by the prosecution in the light
of argument advanced by the prosecution
as well as the defence. The impugned
judgment and order requires no interference
and liable to be affirmed.

41. Now coming to the question of
sentence whether sentence passed by the
Trial Court, is just and proper or not.

42. Appellant has been convicted for the
offence under Section 304-B and 498-A I.P.C.
and under Section 4 of Dowry Prohibition Act.
He has been sentenced only for 7 years rigorous
imprisonment for the offence under Section
304-B I.P.C., for 2 years and fine of Rs. 5,000/-
for the offence under Section 498-A I.P.C. and
Section 4 of Dowry Prohibition Act, for each
offence. It has been further directed that all the
sentences were run concurrently. Thus the
maximum sentence, awarded against the
appellant, is 7 years.

43. Looking into the nature and gravity of
the offence, I am of the view that the
punishment awarded by the Trial Court is just
and appropriate and requires no interference.
Appeal is liable to be dismissed and impugned
judgment and order passed by the learned Trial
Court is liable to be affirmed.

44. In the light of above discussion, the
appeal lacks merit and is hereby dismissed. The
impugned
judgment
and
order
dated
24.11.2018 passed by Additional Session
Judge, Bansi, District Siddharth Nagar in
Sessions Trial No. 30 of 2018 (State vs. Vinod
and another), is maintained and affirmed.

45. The appellant is in jail.

46. Let a copy of this judgment along
with lower court record be sent to the
Additional Sessions Judge, Bansi, District
Siddharth Nagar for necessary information and
compliance.
----------
(2020)03-05ILR A90
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 153 of 1991

Hargovind & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri G.P. Dixit, Sri Ashok Kumar Singh

Counsel for the Respondent:
A.G.A.

A. Criminal law-Criminal Procedure Code
(2 of 1974) - Section 154 - FIR - Delay -
No plausible explanation for delay of 16
hours in registering FIR by complainant -
Held - adverse inference that FIR lodged
with due deliberation and consultation -
delay fatal to the prosecution case (Para
19)

B. Evidence Law-Evidence Act (1 of 1872)
- Section 3 - Contradiction - Material
contradictions
in
testimonies
of
prosecution witness - as per FIR main
door opened by Ram Ratan however P.W.
3 stated that both miscreants opened the
door - Another contradiction that there
are 3 miscreants however P.W. 2 clearly
stated only two miscreants in the incident
- contradiction corrodes the credibility of
witness - no reliance can be placed (Para
22)

C. Criminal Law-Indian Penal Code (45 of
1860) - Section 393 - Attempt to commit
robbery - Allegations that accused persons
intended/tried to snatch anklets from the
feet of victim however on hearing noise
one miscreant fired two rounds - Held - In
3-5 All. Hargovind & Anr. Vs. State of U.P.
91
the present case, alleged gun shot fired by
the appellants do not intend to carry away
any property as no property was taken
away by the appellants - not a case u/s
393 IPC (Para 30)

Appeal allowed (E-5)

List of cases cited :

1.Lal Man Vs St. of U.P. 1990 0 Supreme Court
(All) 1871

2.Jaggi & ors Vs St. of U.P. 2014 (2) Law Suit
(All) 4219

3.Thulia Kali Vs St. of TN AIR 1973 SC 501

4.Dalip Singh & ors. Vs St. of Pun AIR 1953 SC
364

5.Masalti & ors. Vs St. of U.P. AIR 1965 SC 202

6.Guli Chand & ors. Vs St. of Raj. 1974 (3) SCC
698

7.Vadivelu Thevar Vs St. of Mad AIR 1975SC
614

8.Israr Vs St. of U.P. 2005(51) ACC 113

9.Galivenkataiah Vs St. of A.P. 2008 (60) ACC
370

10.St. of AP Vs S. Rayappa & ors. 2006 (1) AAR
259 (SC)

11.Ranganayaki Vs St. (2004) 12 SCC 521

12.Mangaru & ors. Vs St. of U.P. 2008 (62) ACC
40

(Delivered by Hon'ble Suresh Kumar
Gupta, J.

1. Heard learned counsel for the
appellant and learned A.G.A and perused
the record.

2. This criminal appeal has been
preferred by appellants-Hargovind and Sri
Kishan against the judgment and order
dated 30.01.1991, passed by Special Judge
(DAA)/ 6th Additional District Judge,
Etawah, in S.T. No. 45-46 of 1990 (State
Vs. Hargovind and another), whereby
convicting the appellant under Section 393
IPC, sentence them to 4 years rigorous
imprisonment each and fine of Rs. 500/-
each and in default of payment of fine
period of 3 months further rigorous
imprisonment.

3. Brief facts of this case are as
follows:-

4. An FIR Ext. Ka-1 was lodged by
Megh Singh and scribed by constable
Rajendra
Singh
S/o
Megh
Singh
(complainant) that in the intervening night
on 3/4 .08.1988 at about 11.30 p.m. first
informant Megh Singh was sleeping inside
the house below the thatch and his son Ram
Ratan Singh was sleeping in the gallery of
the house and wife of Ram Ratan, Smt.
Mahadevi was sleeping in the courtyard
and the lantern was lightning in the house
and a lamp was lightning near the door and
that time Ram Ratan kept torch. On fateful
night, three miscreants entered into the
house and reached the courtyard and that
time accused tried to snatch anklets (Toria),
then his brother's wife shouted loudly then
one
miscreant
fired
two
rounds.
Meanwhile, Ram Ratan opened the main
door and flashed the torch on miscreants
and exhorted them and after hearing the
noise and sound of fire complainant also
woke up then miscreants fled away from
the place of occurrence, immediately and
that time villagers namely; Badshah, Suraj
Pal and Bhoop Singh etc. armed with lathi
and torch reached on the spot and identified
the miscreants Hargovind and Shri Kishan,
who armed with country made pistol and
one miscreants could not be identified. On
92 INDIAN LAW REPORTS ALLAHABAD SERIES
this allegation, the FIR was lodged by first
informant Megh Singh at P.S. Chauvia,
District Etawah, under sections 393/397
IPC.

5. After lodging the FIR investigation
of the case was entrusted to inspector K.L.
Chaudhary, who conducted investigation of
this
case,
during
investigation,
Investigating Officer on pointing out of
complainant prepared site plan Ext. Ka-7.
Investigating Officer also recorded the
statement of witnesses after completing the
formalities of investigation Investigating
Officer submitted charge-sheet Ext. Ka 5
against the appellants Hargovind and Sri
Kishan under section 393/397 IPC.

6. After filing of the charge-sheet, the
charge against appellants Harigovind and
Sri Kishan was framed under sections
393/397 IPC by Shri Raj Singh, Spl. Judge
(D.A.A.)/
Additional
Sessions
Judge,
Etawah on 02.03.1989.

7. After framing of charge, charge
was read over to accused. Accused denied
the charge and claimed to be tried.

8. In order to substantiate the charge
levelled against the appellants, prosecution
examined P.W. 1 complainant Megh Singh,
P.W. 2 Badshah, eyewitness, P.W. 3 Smt.
Maha Devi eyewitness and victim, P.W. 4
Jai Prakash, who proved FIR Exh. Ka-1,
the GD rapat No. 15 Ext. Ka 2, recovery
mimo of empty cartridges Ext. Ka-3, and
also proved the G.D. No. 25 05/05/88 time
20.5 arrest of the accused Hargovind and
empty cartridges as material Ext. 2 and 3.
P.W. 5 Sub-Inspector K.L. Chaudhary,
investigating officer, who has submitted
charge-sheet
dated
31.08.1988
and
07.12.1988, who proved the same as Ext.
Ka 5 and 6, Site plan as Ext. Ka-7,
recovery and Supardigi Memo of torch and
Latern as Ext. Ka-8.

9. After conclusion of evidence of
prosecution witnesses, trial court has
recorded the statements of appellants under
section 313 IPC, in which the appellantsaccused denied the charge levelled against
them and stated that they have been falsely
implicated in this case due to enmity. The
witness further stated in his testimony that
the marriage of his elder brother was
solemnized by Jai Devi, elder sister of
witness Maha Devi. He further stated that
when the marriage proposal of Maha Devi
was given to the first informant Megh
Singh, then elder brother of accused
objected this marriage and due to this
reason false case was lodged by the first
informant.

10. Learned trial court after hearing
the parties convicted the appellants under
section 393 IPC as aforesaid.

11. Learned counsel for the appellants
has submitted that they have been falsely
implicated in this case on the basis of
surmise and conjuncture. The evidence
adduced by
prosecution
is deficient.
Learned trial court has wrongly convicted
the appellants . He further submitted the
following points:-

(1) Learned counsel for the
appellants submitted that the appellants
Hargovind and Sri Kishan are real brother.
He further submitted that Jai Veer and
appellants Hargovind and Shri Kishan are
real brother and Jai Devi is the wife of Jai
Veer Singh. P.W. 3 Mahadevi is the sister
of Jai Devi, wife of Jai Veer Singh. Jai
Veer Singh is the elder brother of
appellants. He further submitted that when
the marriage proposal of Maha Devi was
3-5 All. Hargovind & Anr. Vs. State of U.P.
93
given to the first informant Megh Singh,
then elder brother of appellants objected
this marriage and due to this enmity false
case was lodged by the first informant
against the appellants Hargovind and Sri
Kishan due to enmity.

(2)
Time
of
incident
is
03.08.1988 at 11.30 mid night and the FIR
was lodged against the appellants on
04.08.1988 at 3.30 p.m. FIR was lodged
after 16 hours of the incident, while the
distance from the police station to the place
of occurrence is about 8 kms. Due to delay
of lodging the FIR, FIR looses spontaneity.
FIR was lodged with due deliberation and
consultation hence, no reliance can be
placed in the FIR.

3.
Learned
counsel
for
the
appellants has also submitted that only 3
witnesses of the fact were examined by the
prosecution. All the 3 witnesses are relative
and
interested
witnesses
and
no
independent witnesses of the locality on the
spot was produced by the prosecution, so
the non production of the independent
witnesses are totally belie the prosecution
case. So no reliance placed on the
testimony of the witnesses of fact.

(4) Prosecution is failed to
assigned any motive against the appellants.

(5) Both the appellants and the
first informant of the same village and this
also not believable, but in spite of that the
accused persons had not tried to conceal
their identity which is very unnatural and
if, at all they have planted to robbery at
least they would have hided their face, so
nobody was recognized the same. Learned
counsel for the appellant has also submitted
that no offence under section 393 IPC is
made out.

(6) There are several material
contradictions in the statement of examined
witness. This aspect is also corrodes the
credibility of witness. So no reliance placed
on the testimony of the witnesses of fact. In
support of this contention, learned counsel
for the appellants has relied upon the
following judgment:-

1. Lal Man vs. State of U.P.
1990 0 Supreme Court (All) 1871 and

2. Jaggi and others vs. State of
U.P. 2014 (2) Law Suit (All) 4219.

12. Learned AGA has vehemently
opposed the prayer and submitted that the
learned trial court after appreciating the
evidence rightly convicted the appellants.
Next submission is that the accused were
known person and they are clearly
identified by the witnesses who present on
the spot and although the incident took
place in the night but the appellants are the
resident of same village. There was
sufficient light to identify the known
persons of the villagers. It is also submitted
that two empty cartridge were recovered
from the place of occurrence, which is
delivered by the first informant to the
police station regarding which the recovery
memo was prepared by the police at the
time of lodging of the FIR and recovery
memo Ext. Ka-2 is duly proved by
prosecution.

13. Section 393 IPC reads as
under:-

"Section 393 in The Indian Penal
Code. 393. Attempt to commit robbery. --
Whoever attempts to commit robbery shall
be punished with rigorous imprisonment
for a term which may extend to seven years,
and shall also be liable to fine."

In this Session trial appellants
were convicted under section 393 IPC for
attempt to commit robbery.

14. Section 390 Indian Panel Code
reads as under:-
94 INDIAN LAW REPORTS ALLAHABAD SERIES

"390. Robbery.--In all robbery
there is either theft or extortion. When theft
is robbery.--Theft is "robbery" if, in order
to the committing of the theft, or in
committing the theft, or in carrying away
or attempting to carry away property
obtained by the theft, the offender, for that
end, voluntarily causes or attempts to cause
to any person death or hurt or wrongful
restraint, or fear of instant death or of
instant hurt, or of instant wrongful
restraint. When extortion is robbery.--
Extortion is "robbery" if the offender, at the
time of committing the extortion, is in the
presence of the person put in fear, and
commits the extortion by putting that
person in fear of instant death, of instant
hurt, or of instant wrongful restraint to that
person or to some other person, and, by so
putting in fear, induces the person so put in
fear then and there to deliver up the thing
extorted. Explanation.--The offender is said
to be present if he is sufficiently near to put
the other person in fear of instant death, of
instant hurt, or of instant wrongful
restraint."

15. Whether the offence under section
393 is made out against the appellants or
not will be discussed after considering the
other argument raised by the appellants.

16. So far as regard one of the
argument of the appellants is that the FIR is
16 hours delayed, but there is no plausible
explanation regarding delay of the FIR on
behalf of prosecution.

17. In criminal trial one of the
cardinal principles for the Court is to look
for plausible explanation for the delay in
lodging the report. Delay sometimes
affords opportunity to the complainant to
make deliberation upon the complaint and
to make embellishment or even make
fabrications. Delay defeats the chance of
the unsoiled and untarnished version of the
case to be presented before the Court at the
earliest instance. That is why if there is
delay in either coming before the police or
before the Court, the Courts always view
the allegations with suspicion and look for
satisfactory
explanation.
If
no
such
satisfaction is formed, the delay is treated
as fatal to the prosecution case.

18. In Thulia Kali v. The State of
Tamil Nadu (AIR 1973 SC 501), it was
held that the delay in lodging the first
information report quite often results in
embellishment as a result of afterthought.
On account of delay, the report not only
gets bereft of the advantage of spontaneity,
but
also
danger
creeps
in
of
the
introduction
of
coloured
version,
exaggerated account or concocted story as
a result of deliberation and consultation.

19. In this case although the
prosecution tried to explain the delay that
P.W. 1 is rustic and his son Rajendra
Kumar who was posted at the time of
incident as police constable in the police
line, Etah. P.W. 1 lodged the FIR with the
consultation of his son Rajendra Kumar.
Although the prosecution has tried to
explain the delay but on perusal of entire
circumstances the delay is not satisfactorily
explained so adverse inference is to be
drawn in this case. This possibility cannot
be ruled out that FIR was lodged by the
complainant with due deliberation and
consultation.

20. Another argument of learned
counsel for the appellants is that three
relatives and interested witnesses were
examined by the prosecution and no
independent witness of the locality was
produced by the prosecution and due to
3-5 All. Hargovind & Anr. Vs. State of U.P.
95
this, whole prosecution of the case create
suspicion. So far as regards the evidentiary
value of related and interested witnesses
are concerned, in the case of Dalip Singh
and others vs. State of Punjab, (AIR
1953 SC 364), it has been laid down as
under by the Hon'ble Apex Court:-

No doubt, the evidence of related
and
interested
witnesses
has
to
be
scrutinized with caution.

"A witness is normally to be
considered independent unless he or she
springs from sources which are likely to be
tainted and unless the witness has cause,
such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close
relation would be the last to screen the real
culprit and falsely implicate an innocent
person. It is true, when feelings run high
and there is personal cause for enmity, that
there is tendency to drag in an innocent
person against whom a witness has a
grudge
along
with
the
guilty,
but
foundation must be laid for such a criticism
and the mere fact of relationship far from
being a foundation is often a sure
guarantee of truth. However, we are not
attempting any sweeping generalization.
Each case must be judged on its own facts."

Observations of the Hon'ble Apex
Court Masalti and others vs. State of
U.P., A.I.R. 1965 SC 202, are worth
mentioning:-

"But it would, we think, be
unreasonable to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
the sole ground that it is partisan would
invariably lead to failure of justice. No
hard and fast rule can be laid down as to
how such evidence should be appreciated.
Judicial approach has to be cautions in
dealing with such evidence, but the plea
that such evidence should be rejected
because it is partisan cannot be accepted
as correct."

The above decision has been
followed in Guli Chand and others vs.
State of Rajasthan, 1974 (3) SCC 698, in
which Vadivelu Thevar vs. State of
Madras, AIR 1975 SC 614 was also relied
upon. The following observations were
made by the Hon'ble Apex Court in Israr
vs. State of U.P., [2005(51) ACC 113] in
para-12
of
the
judgement
are
also
important:-

".... Relationship is not a factor to
affect credibility of a witness. It is more
often than not that a relation would not
conceal the actual culprit and make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
Court has to adopt a careful approach and
analyze evidence to find out whether it is
cogent and credible."

21. The position has been highlighted
by
Apex
Court
in
the
case
of
Galivenkataiah vs. State of A.P., 2008
(60) ACC 370, in which reference has been
made to some other cases also. The Hon'ble
Supreme Court in the case of State of
Andhra Pradesh vs. S. Rayappa and
others, 2006 (1) AAR 259 (SC) dealing
the evidence of related/interested witnesses
has observed as under:-

"...... By now it is a wellestablished principle of law that testimony
of a witness otherwise inspiring confidence
cannot be discarded on the ground that he
being a relation of the deceased is an
interested witness. A close relative who is a
very natural witness cannot be termed as
an interested witness. The term interested
postulates that the person concerned must
96 INDIAN LAW REPORTS ALLAHABAD SERIES
have some direct interest in seeing the
accused person being convicted somehow
or the other either because of animosity or
some other reasons.:

In para-8 their Lordships have
further observed:

"The relative witness is not
necessarily an interested witness. On the
other hand, being a close relation to the
deceased, they will try to prosecute the real
culprit by stating the truth. There is no
reason as to why a close relative will
implicate and depose falsely against
somebody and screen the real culprit to
escape unpunished. The only requirement
is that the testimony of the relative
witnesses should be examined cautiously..."

22. The relative witness is not
necessarily an interested witness. There is
no reason as to why a close relative will
implicate and depose falsely against
somebody and screen the real culprit to
escape unpunished. The only requirement
is that the testimony of the relative
witnesses should be examined cautiously.
So on the basis of the interested witnesses
of prosecution case is not thrown out that
no independent witness examined by the
court.

23. One of the argument of learned
counsel
for
the
appellants
is
that
prosecution failed to assign any motive of
alleged incident. So, the conviction could
not upheld due to observe of motive.

24. The Hon'ble Apex Court in the
case of Ranganayaki vs. State, (2004) 12
SCC 521 has held as under:

"The motive for committing a
criminal act is generally a difficult area for
the prosecution. One cannot normally see
into the mind of anther. Motive is in the
mind which impels a man to do a particular
act. Such impulsion need not necessarily be
proportionally grave to do grave crimes.
Many murders have been committed
without any known or prominent motive. It
is quite possible that the aforesaid imputing
factor would remain undiscovered."

2. The Hon'ble Apex Court in
Mangaru and others vs. State of U.P.,
2008 (62) ACC 40 has laid down that
motive may be of importance in the cases
of circumstantial evidence and it is well
settled principle of law that in the case of
direct evidence, motive looses its value.

3. In the present case in hand
prosecution could not establish some
motive of this incident hence this case is
fully based on direct evidence so motive
looses its value, hence the motive in this
case is not much consequence.

25. One of the argument of learned
counsel for the appellants is that there are
several material contradictions in the
statement of the witnesses examined by the
prosecution. Due to material contradiction
prosecution is utterly failed to prove the
case.

26. Learned counsel for the appellant
pointed out several contradictions. One of
the contradiction is pointed out by the
appellants is that as per first information
report the main door was opened by Ram
Ratan. P.W. 3 Mahadevi stated in her
statement that both the miscreants opened
the door and fled away from the spot.
Another contradiction is also pointed out
that there are 3 miscreants, one miscreant
was unknown and P.W. 2 has clearly stated
that only two miscreants in this incident.

27. It is also pointed out by learned
counsel for the appellants is that P.W. 2 in
his statement has stated that he create the
3-5 All. Hargovind & Anr. Vs. State of U.P.
97
pressure then the miscreants made fire
while they were running. P.W. 1 and P.W.
3 clearly stated that named appellants fired
inside the house. It is also submitted that no
fire mark was present in the wall, then the
story is concocted and fabricated.

28. There are material contradictions
which is pointed out by appellants. These
material contradictions are also corrodes in
the statements of witnesses examined by
the prosecution.

29. Learned counsel for the appellants
is also submitted that this point is also ruled
out with the false implication of the
accused persons. It is argued by learned
counsel
for
the
appellants
that
the
appellants were known to the complainant
and other witnesses, but in spite of that two
accused persons had not tried to conceal
their identity, which is very unnatural and
if at all they had a plan to commit robbery
at least they would have masked their face
so that nobody could recognize them in the
present case. All the examined witnesses of
the fact had deposed that all the miscreants
were having open face and did not try to
conceal their identity, so this creates doubt
upon prosecution story.

30. Now the question raised
whether the offence under section 393
IPC is made out against the appellants or
not. As mentioned in the FIR that the
accused persons had intended to take
away anklet (toria) from the feet of Smt.
Mahadevi. On perusal of the statement
of Smt. Mahadevi, P.W.3, its reveals in
her statement that the accused persons
have touched anklet (toria), but in their
statements it is clearly stated that they
have touched her feet. In the present
case, if any alleged gun shot fired by the
appellants do not intend to carry away
any property as no property was taken
away by the appellants so prima facie it
transpires that this is not a case under
the preview of Section 393 IPC. It is
surprising that due to such fire no injury
cause to any person. It is also surprising
that several persons gathered on the
spot, but nobody tried to apprehend the
appellants on the spot, surprisingly both
the appellants escape away from spot
safely, so the possibility of false
implication is not ruled out in this case.

31. Therefore, looking into the
entire facts and circumstances of the
case, this Court is of the view that the
prosecution has failed to prove its case
beyond shadow of doubt. The present
appeal is liable to be allowed and the
judgment and order of the learned trial
court for convicting and sentencing the
appellants is liable to be set aside.

32. Accordingly, the appeal is
allowed. The judgment and order dated
30.01.1991 passed by Special Judge
(DAA)/ 6th Additional District Judge,
Etawah, for convicting and sentencing
the
appellants
is
set
aside.
The
appellants are acquitted under section
393 IPC.

33. Appeal against the appellants
is hereby allowed.

34. The appellants are on bail.
There is no need for their surrender.
Their bail bonds are canceled and
sureties are hereby discharged.

35. Office is directed to transmit
the certified copy of this order to the
court below along with the lower court
record, for necessary compliance.
----------
98 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)03-05ILR A98
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2020

BEFORE
THE HON'BLE PANKAJ NAQVI, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 175 of 1992

Prem Pal ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri
S.S.
Sharma,
Sri
Sanjay
Kumar
Chaurasia, Sri Shah Om Prakash Agarwal

Counsel for the Respondents:
A.G.A.

Criminal law- Drugs and Cosmetics Act (23
of 1940)- Section18, S.19(3)(b) - Sale of
adulterous drug - Benefit of defence -
Once a retailer / seller - establish that he
bought the drug / cosmetic from a
licensed manufacturer or distributor &
stored them properly - then the retailer /
seller has only to exercise reasonable
diligence as expected from an ordinary
person indulging in that particular trade -
However where the drug appears to be
misbranded / sub-standard to even a
naked eye then it may afford no protection
to the retailer / seller that he purchased
the drug / cosmetic from a licensed
manufacturer and had stored it properly
(Para 13)

Accused - Appellant, a retailer established that
he acquired the drug from a duly licensed
manufacturer
-
and
he
could
not
with
reasonable diligence, have ascertained that the
drug in question, contravened S. 18 - he is
entitled to the defence u/s 19(3) of the Act - no
evidence that the accused appellant had any
knowledge that the drug in question was
adulterated - appellant discontinued the sale of
the drug the moment he came to know of the
drug being spurious after receipt of the test
report - conviction u/s Section 275 IPC illegal -
Conviction set aside

Appeal allowed (E-5)

(Delivered by Hon'ble Pankaj Naqvi, J.)

This criminal appeal is preferred
against the judgment and order dated
21.1.1992 passed by VIth Additional
Sessions Judge, Aligarh in S.T. No. 78 of
1991 (State Vs. Prem Pal Varshney)
convicting/ sentencing the appellant under
Section 275 IPC/Section 27 of Drugs and
Cosmetics Act, 1940 to life with fine of
Rs.1 lac and a default sentence of 5 years
R.I.

(a) PW-1, a Drug Inspector on
12.5.1982 inspected the shop of the
appellant, namely M/s National Medical
Store, wherein he purchased 5 tables of
DEXAMETHASONE (Batch No.38 D/M
May 81) vide Cash Memo (Ex.Ka 1), for
the purpose of sample/ test survey. PW-1
sent the said sample to Central Drug
Laboratory, Calcutta (hereinafter referred to
C.D.L.),
where
it
was
received
on
14.05.1982. The C.D.L. submitted the test
report dated 04.06.82 (Ex.Ka 4) disclosing
the sample as spurious and that it did not
contain DEXAMETHASONE.

(b) PW-1 on 26.6.1982, again
inspected the shop of the appellant and
purchased vide a cash memo (Exbt Ka-5)
47 tablets of DEXAMETHASONE (Batch
No. 38D/M May 81). Out of 47 tablets,
PW-1 prepared 4 samples, i.e, 20+9+9+9
and got them sealed in the presence of
appellant, duly signed by both of them,
appellant was intimated of the same on
Form 17 of the same date. PW-1 sent the
sample containing 20 tablets to the C.D.L,
vide a memo dated 28.06.82 to obtain a test