# State of U.P and others v. Anil Kumar Rathore

- **Citation:** (2013) 1 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-30
- **Bench:** Anurag Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-anil-kumar-rathore-42444
- **Pages:** 4

## Headnote

Dr.Manoj Dubey
Sri Rakesh Kumar Tripathi
Sri Sanjay Kr. Singh

Criminal
Procedure
Code-Criminal
Appeal-Government
Appeal
against
acquittal
for
offence
under
section
272/284 I.P.C. On ground-no proper
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
opportunity to examine the witness
given-held-finding of Trail Court can be
reversed either on compelling reason or
decision based on erroneous view of law
or likely to result gave mis-courage of
justice-in
absence
of
these
circumstances order of acquittal can not
be interfered.

Held: Para-12

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.
Case Law discussed:
(1978) 1 SCC 228; (2008) 10 SCC 450

## Text

1 All] State of U.P and others V. Anil Kumar Rathore
23

5. At this juncture, the question arises
as to what should be the position where the
deceased dealer was of the category other
than that for which reservation of a particular
class/category of society for a fresh dealer
has been provided for. In our opinion, the
policy of reservation for appointment as
dealer will be considered only when a regular
appointment is to be made and not otherwise.
Where the vacancy of any dealership of a fair
price shop has occurred because of the death
of the dealer and the conditions provided in
the Government Order for appointment on
compassionate basis stand fulfilled, the
appointment on compassionate ground is to
be considered first under paragraph 10 (Jha)
of the Government Order dated 17.08.2002.
If any other interpretation than this is given
to the above Government order, the
provision of the Government order shall
become a nullity and the same can be availed
by the dependents of the deceased dealer
only in a case where the dealer was of the
category for which the reservation is
provided and not otherwise. Such can not be
the purpose as obviously para 10 (Jha) of the
Government order has been inserted to
safeguard the interest of the dependents of
the deceased dealer. As such without
considering the position of reservation which
has not been provided for his case of
compassionate appointment, the concerned
authority shall look to the welfare of the
dependents of the deceased dealer, otherwise
the entire purpose of providing for such
appointment
would
be
frustrated.The
interpretation which has been given by the
impugned order is opposed to the public
policy of safeguarding the interests of the
dependents of the deceased-dealer.

6. We are thus of the view that
appointment under paragraph 10 (Jha) of the
Government Order dated 17.08.2002 would
not be covered by the Rule of reservation as
it is a special appointment on compassionate
ground and only condition which has to be
considered is that the deceased-fair price
shop dealer had a good reputation and the
applicant is the dependant of such deceaseddealer.

7. In view of the aforesaid, the
impugned order dated 5th December, 2012
passed by the Sub-Divisional Magistrate
rejecting the application of the petitioner
deserves to be quashed.

8. The writ petition stands allowed and
the order dated 05.12.2012 is quashed. The
respondent No. 2 is directed to take fresh
decision on the application of the petitioner
in the light of the observations made here-inabove,
as
expeditiously
as
possible,
preferably within two months from the date
of filing of certified copy of this order before
respondent No. 2.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.01.2013

BEFORE
THE HON'BLE ANURAG KUMAR, J.

Criminal Appeal No. 611 of 2005.

State of U.P.

 ...Petitioner
Versus
Anil Kumar Rathore
 ...Respondents

Counsel for the Petitioner:
Govt.Advocate

Counsel for the Respondents:
Dr.Manoj Dubey
Sri Rakesh Kumar Tripathi
Sri Sanjay Kr. Singh

Criminal
Procedure
Code-Criminal
Appeal-Government
Appeal
against
acquittal
for
offence
under
section
272/284 I.P.C. On ground-no proper
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
opportunity to examine the witness
given-held-finding of Trail Court can be
reversed either on compelling reason or
decision based on erroneous view of law
or likely to result gave mis-courage of
justice-in
absence
of
these
circumstances order of acquittal can not
be interfered.

Held: Para-12

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.
Case Law discussed:
(1978) 1 SCC 228; (2008) 10 SCC 450

(Delivered by Hon'ble Anurag Kumar,J.)

1. 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.

2. 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. Ka2, 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.

3. 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
1 All] State of U.P and others V. Anil Kumar Rathore
25
thus committed grave illegality. The appeal
is liable to be allowed and the trial court's
judgment is liable to be set aside.

4. Heard learned A.G.A. for State and
Mr. Rakesh Kumar Tripathi for respondent
accused Anil Kumar Rathore.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

10. 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."

11. 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.

12. 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.

13. 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.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2013

BEFORE
THE HON'BLE V.P.PATHAK, J

Criminal Revision No. - 789 of 2007

Iqbal

 ...Revisionist
Versus
State of U.P.

 ...Opposite Party

Counsel for the Petitioner:
Sri Gajraj Singh Pal
Sri G.R.S. Prasad
Sri Preet Pal Singh Rathore

Counsel for the Respondents:
A.G.A.

Juvenile Justice (Care and Protection of
Children) Act 2000 Section 2 (k) and
2(l)-word "Juvenile" explained who has
not obtained 18 year age-incidence took
place on 19.05.1997-C.M.O. Opinioned
18.12.1997
as seventeen year
ageadmittedly when the amended provision