# State of U.P v. Pratibha Dubey

- **Citation:** (2021) 8 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Government Appeal No. 158 of 2020
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-pratibha-dubey-47331
- **Pages:** 7

## Headnote

A. Criminal Law - Acquittal - interference
in an appeal or revision against acquittal -
if
two
views
of
the
evidence
are
reasonably possible, one supporting the
acquittal and other indicating conviction,
the High Court should not, in such a
situation, reverse the order of acquittal
recorded by the trial court (Para 12)
B. Railways Act,1989 - Section 143(2) -
Evidence Act ,1872 - Section 3 - Offence of
carrying
unauthorised
business
of
procuring & supplying of railway tickets -
Suspicion - suspicion, howsoever, strong
cannot
take
place
of
proof
- Held -
Prosecution has to prove by the cogent
evidence that respondent-accused helped
by
illegal
means
in
procurement
of
reservation tickets, by co-accused, only
then the guilt of the respondent-accused
will stand proved - there is no sufficient
evidence on the record to prove the said
facts - no evidence on record to establish
that while issuing the PRS window tickets,
the respondent-accused has committed
any irregularity or violated any rule -
906 INDIAN LAW REPORTS ALLAHABAD SERIES
Prosecution failed to prove its case
against respondent (Para 10, 11)
Dismissed. (E-4)
List of Cases cited:

## Text

8 All. State of U.P. Vs. Pratibha Dubey
905
confession that after the occurrence took
place, Aslam, Kale and Kake - all the three
accused - came to him on 11.6.2007 and
confessed to have committed the offence.
This extra judicial confession was not
supported by any independent testimony,
facts or circumstances of the case therefore,
they same when read in line with the
testimony of P.W. -2 regarding the creation
of last seen theory by adducing testimony
in the shape of Aslam calling the deceased
by using his cell phone, is not believable
unless
corroborated
by
independent
circumstance or testimony as such. Though,
it is not imperative that an extra-judicial
confession, to be admissible must be
supported by independent evidence, fact or
circumstance - but under prevailing facts
and circumstances of a particular case it
should be a truthful version beyond shadow
of suspicion. If the circumstances of a case
are suspicious then it is rule of cautious that
the court should normally look for
corroboration of it from some independent
source.

11. In view of the above, the trial
Court was justified in recording the finding
of acquittal, for the specific reason that it
being a case based on circumstantial
evidence, all the links in the chain of
circumstances
must
be
consistently
intertwined established and must leave
aside every hypothesis of innocence of the
accused and it must indicate invariably that
the accused and accused alone were the
author of the crime and none other.
Therefore, we are not inclined to interfere
with the judgment of acquittal dated
30.1.2016 passed by Additional Sessions
Judge, Court No. - 6, Agra, at this stage.

12. Consequently, the leave to appeal
sans merit and the same is dismissed.

13. Resultantly, this appeal goes and
the same is also dismissed.
----------
(2021)08ILR A905
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Government Appeal No. 158 of 2020

State of U.P. ...Applicant
Versus
Pratibha Dubey ...Respondent

Counsel for the Applicant:
A.G.A.

Counsel for the Respondent:
Sri Saurabh Basu, Sri Premnendra Singh

A. Criminal Law - Acquittal - interference
in an appeal or revision against acquittal -
if
two
views
of
the
evidence
are
reasonably possible, one supporting the
acquittal and other indicating conviction,
the High Court should not, in such a
situation, reverse the order of acquittal
recorded by the trial court (Para 12)
B. Railways Act,1989 - Section 143(2) -
Evidence Act ,1872 - Section 3 - Offence of
carrying
unauthorised
business
of
procuring & supplying of railway tickets -
Suspicion - suspicion, howsoever, strong
cannot
take
place
of
proof
- Held -
Prosecution has to prove by the cogent
evidence that respondent-accused helped
by
illegal
means
in
procurement
of
reservation tickets, by co-accused, only
then the guilt of the respondent-accused
will stand proved - there is no sufficient
evidence on the record to prove the said
facts - no evidence on record to establish
that while issuing the PRS window tickets,
the respondent-accused has committed
any irregularity or violated any rule -
906 INDIAN LAW REPORTS ALLAHABAD SERIES
Prosecution failed to prove its case
against respondent (Para 10, 11)
Dismissed. (E-4)
List of Cases cited:
1. St.of Karn. Vs K. Gopalkrishna reported in
(2005) 9 SCC 291

2. Babu Vs St. of Ker.l (2010) 9 SCC 189

3. Dilawar Singh Vs St. of Har., (2015) 1 SCC
737

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri S.B. Maurya, learned
A.G.A. assisted by Sri Anshuman Singh,
learned A.G.A. for the appellant and Sri
Saurabh Basu, learned counsel for the
respondent.

2. This Government Appeal has been
filed against the part of the judgment and
order dated 17.03.2020 by which the
respondent (accused) has been acquitted for
charges under Section 143 (1) and 143 (2)
of the Railways Act in criminal case No.
7461
of
2019
(State
of
U.P.
vs.
Chandrakant Purohit and another) passed
by Additional Chief Judicial Magistrate,
Jhansi. By the same judgment, the coaccused Chandrakant Purohit has been
convicted for offence under Section 143 (1)
of the Railways Act which is not a matter in
issue in this appeal.

3. The prosecution case is that coaccused
Chandrakant
Purohit
is
an
authorized agent of IRCTC but in greed of
more money, he used to sell e-tickets using
his personal ID and reservation tickets from
PRS window to the needy persons. On the
information received the police party of
Railway Protection Force, lead by S.I- Hari
Ram Yaday accompanying with constable
Vikas Vyas and constable Yogendra Khare
raided the premises of Anjali Travels where
Chandrakant Purohit was found working on
computer and on search of the premises in
presence of public witnesses Dhani Ram
and Channa, 17 e-tickets of future journey
amounting to Rs. 39,411/-, 33 PRS window
tickets of future journey amounting to Rs.
48005/-, six PRS window tickets of past
journey
amounting
to
Rs.3695/-,
19
cancelled PRS window tickets amounting
to Rs. 39,625/- were recovered from the
counter. Laptop, printer, mobile phones
were also recovered. The recovery memo
was prepared by S.I. Hari Ram Yadav.
During further enquiry, it was revealed that
out of 58 PRS window tickets recovered 41
tickets
were
booked
by
respondent
(accused) Pratibha Dubey who is an
employee of the Railway and was deployed
at the booking counter as booking clerk. It
was also revealed that Chandrakant Purohit
has made various phone calls from his
mobile phone (Mob. No.9450067076) to
the accused Pratibha Dubey on her Mob.
Nos. 9450034021 & 7080310910 and both
have talked 18 times including six times on
duty. The Inquiry Officer, S.I. Hari Ram
Yadav recorded the statements of some
PRS window ticket holders of future
journey, the accused persons and other
witnesses and after completion of enquiry,
filed a complaint before the learned
Magistrate.

4. Under 244 Cr.P.C., three witnesses
P.W.1 (Constable Vikas Vyas) P.W.2 (S.I.
Hari Ram Yadav) and P.W.3 (Raj Kumar
Jha) were produced and on this evidence,
charges under Section 143 (1) & 143 (2) of
Railways Act were framed against both the
accused
persons
namely
Chandrakant
Purohit and Pratibha Dubey. The accused
denied the charges and claimed for trial.
8 All. State of U.P. Vs. Pratibha Dubey
907
Under Section 246 Cr.P.C., the three
witnesses examined under Section 244
Cr.P.C. were reproduced for further crossexamination and ten other witnesses were
also examined. The statements of accused
were recorded under Section 313 Cr.P.C. In
her
statement
accused
(respondent)
Pratibha Dubey, denied the complaints
version and further submitted that she has
acted as per rules. She has also stated that
she is a government employee and no
prosecution sanction has been obtained
before filing complaint and that she is
innocent and has not committed any
irregularity. The learned Magistrate after
hearing the arguments of both the parties,
by the impugned judgment has acquitted
the respondent Pratibha Dubey from all the
charges, while recorded the conviction of
co-accused
Chandrakant
Purohit
for
offence under Section 143 (1) of the
Railways Act. Against the order of acquittal
of respondent-accused Pratibha Dubey, the
State has filed this Government Appeal.

5. Learned counsel for the Stateappellant contended that the learned trial
court has not properly appreciated the
prosecution evidence and has decided the
case only on the basis of conjectures and
surmises. There is ample evidence on record
that the PRS window tickets recovered from
the possession of the co-accused Chandrakant
Purohit has been booked by the respondent
(accused) and the trial court has believed this
prosecution story but even then acquitted the
respondent (accused). Learned trial court has
committed gross error in dis-believing the
testimony of the prosecution witnesses and
order of acquittal is wholly illegal, perverse
and against the evidence on record.

6. The learned counsel for the
respondent-accused drawn the attention of
the Court at page no.24 to 27 of the
impugned judgment and submitted that the
learned trial court has rightly recorded the
findings that CDR filed by the prosecution
has not been duly proved and was not
admissible in the evidence. The mere fact
that PRS window tickets have been booked
by the respondent (accused) is not enough
to prove her role in any crime as she is the
railway employee deputed for the purpose
and has performed the act in discharge of
her official duty and particularly when
there was single window operation for
reservation at Railway Station- Lalitpur at
the relevant time. There is no illegality or
perversity in the impugned judgment and
order of acquittal. Prosecution has failed to
prove its case against the respondent
(accused) and the trial court has rightly
acquitted her.

7. The provisions of Section 143 of
the Railways Act is as follows:-

(1) If any person, not being a
railway servant or an agent authorized 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
908 INDIAN LAW REPORTS ALLAHABAD SERIES
than imprisonment for a term of one month
or a fine of five thousand rupees.

(2) Whoever abets any offence
punishable
under
this
section
shall,
whether or not such offence is committed,
be punishable with the same punishment as
is provided for the offence.

8. It is established fact that
respondent-accused is a railway employee,
hence Section 143(1) is not applicable on
her and only Section 143(2) attracts her.
The
prosecution
has
examined
13
witnesses, P.W.-1 Constable Vikas Vyas,
P.W.-2, S.I. Hari Ram Yadav, P.W.-8
Constable
Yogendra
Khare
are
the
members of the police party, who have
conducted the raid and searched the
premises of Anjali Travels and according to
prosecution version, they have recovered
various railway tickets, e-tickets as well as
PRS window tickets from the counter and
other articles i.e., laptop, printer etc. One
public witness of the aforesaid recovery
namely Dhani Ram has also been examined
as P.W.-12 but he has not supported the
prosecution case. From the testimony of the
P.W.-1, Vikas Vyas, P.W.-2, S.I Hari Ram
Yadav and P.W.-8 constable Yogendra
Khare, it is proved that 58 PRS window
tickets and various e-tickets were recovered
from
the
possession
of
co-accused
Chandrakant Purohit. The respondentaccused is concerned only with the PRS
window tickets. Out of 58 window tickets
33 tickets were for future journey while six
PRS window tickets were of past journey
and 19 PRS window tickets were the
cancelled tickets. Prosecution has also
examined
P.W.-3,
Raj
Kumar,
Chief
Reservation Observer who has stated that
on the enquiry made by the complainant
S.I. Hari Ram Yadav information was
provided regarding the recovered PRS
window tickets and according to which 41
PRS window tickets were booked by the
accused
Pratibha
Dubey
during
her
working hours from 7:30 to 15:30 of the
relevant period. He also said that on the
request of complainant, certified photocopy
of the filled reservation forms of PRS
window tickets were also provided to the
complainant. All these documents have
been produced by the prosecution and have
been marked as exhibits. The recovered
PRS window tickets have also been
produced by the prosecution and have been
marked
as
exhibits.
So
from
the
prosecution evidence, it is also proved that
out of 58 PRS window tickets recovered
from the possession of the co-accused
Chandrakant Purohit, 41 PRS window
tickets were booked by respondent-accused
Pratibha Dubey during her duty hours.

9. For holding guilty the respondentaccused, prosecution has to prove that she
has abetted the act of procurement of PRS
window tickets by co-accused Chandrakant
Purohit for sale. In this regard, prosecution
has relied on CDR and the oral testimony
of P.W.-6 to P.W.-13, the PRS window
tickets holders of future tickets. During
enquiry made by the complainant, the Chief
Reservation Observer, Mr. Raj Kumar has
provided the name and other particulars of
staff on duty of the booking counter and in
this information, the mobile number of
respondent-accused Pratibha Dubey was
also
given
to
the
Inquiry
Officer/
complainant S.I. Hari Ram Yadav. The
Inquiry Officer has also recorded the
statement of respondent-accused Pratibha
Dubey in which she has disclosed her two
mobile numbers and one is the same which
has been provided by Mr. Raj Kumar, the
Chief Reservation Observer. The Inquiry
Officer/ complainant has obtained the CDR
of
co-accused
Chandrakant
Purohit's
mobile which shows the conversation of
8 All. State of U.P. Vs. Pratibha Dubey
909
both the accused for 18 times including six
times during duty hours of respondentaccused Pratibha Dubey. While analyzing
this evidence, the learned trial court has
observed that the Inquiry Officer, S.I. Hari
Ram Yadav has not verified the facts from
service provider agency that the mobile
numbers belonged to accused-persons.
These observations of the learned trial
court are not proper because it is not
necessary for prosecution to prove that the
SIM's were owned by the accused-persons.
It is enough that these SIM's were used by
them and from the evidence on record, it is
clearly established that these SIM's were
used by the accused persons, because the
two numbers has been provided by the
respondent-accused herself to the Inquiry
Officer during enquiry.

10.
 The
prosecution
has
also
examined the public witness namely
Upendra Jain P.W.-6, Abhishek Srivastava
P.W.7, Ram Lakhan Singh Gurjar P.W.-9,
Dr. R.R. Srivastava P.W.-10, Jagdish Singh
P.W.-11 and Rajiv Dubey P.W.-13 who are
some of the ticket holders of future journey
of PRS window tickets which have been
recovered. Out of the aforesaid, public
witnesses Abhishek Srivastava P.W.-7 and
Ram Lakhan Singh Gurjar P.W.-9 have
become hostile and have not supported the
prosecution
version.
The
remaining
witnesses namely Upendra Jain P.W.-6, Dr.
R.R. Srivastava P.W.-10, Jagdish Singh
P.W.-11 and Rajiv Dubey P.W.-13, in their
statement, have said that they got the
reservation tickets through Chandrakant
Purohit who is a railway agent and they
have instructed Chandrakant Purohit to get
these reservation tickets on their behalf. So
their oral testimony is only against coaccused Chandra Kant Purohit. There is
nothing in their statement to implicate the
accused-respondent. From oral as well as
documentary evidence, it is proved that out
of 58 PRS window tickets recovered from
the possession of co-accused Chandrakant
Purohit, 41 PRS window tickets were
booked by respondent-accused Pratibha
Dubey. It is an established fact that
respondent no.2 Pratibha Dubey being a
railway
employee
deployed
on
the
reservation counter, it was her part of duty
to issue PRS window tickets, so her
involvement in the offence can only be
established if it is proved that in issuing
PRS window tickets any irregularity has
been committed by her. From the evidence
on record, it stands proved that duly filled
reservation/ cancellation requisition form
required for the reservation booking were
available and prosecution witness Raj
Kumar Jha P.W.-3, CRS Lalitpur in his
statement has admitted that there is no
irregularity in these forms. So merely
because of the fact that the maximum
number of PRS window tickets recovered
from the possession of the co-accused
Chandrakant Purohit have been booked by
respondent-accused Pratibha Dubey and the
fact that as per CDR accused-respondent
has talked 18 times with co-accused
including six times on duty, it cannot be
said that she has abetted or helped by
illegal means in procurement of these
tickets by co-accused. The argument of the
learned counsel for the respondent that the
respondent is an employee deputed for the
purpose at Railway Station- Lalitpur, there
is single window operation for reservation,
there is nothing unusual or abnormal that
the tickets have been booked by the
respondent is very much relevant and
forceful. Learned trial court has further
observed
that
during
arguments
the
prosecution has submitted before the court
that the conversation between the coaccused is from 01.05.2018 to 17.11.2018
and in this period they have talked about 18
910 INDIAN LAW REPORTS ALLAHABAD SERIES
times. The learned trial court has also
observed that conversation of 18 times
during the period of six months cannot be
said to be abnormal thing. The learned trial
court has also observed that it is not
necessary that the ticket holder for
reservation should himself go to the ticket
counter and fill the form and sign it. Even
his representative can get the ticket
reserved from any booking counter. These
observation, of the learned trial court are
just and proper. The facts that out of 58
PRS window tickets, 41 PRS window
tickets have been booked by the co-accused
respondent Pratibha Dubey, and her mobile
conversation with co-accused only creates
suspicion about the role of respondentaccused, but it is a well settled principle of
law that suspicion, howsoever, strong may
be cannot take place of proof. Prosecution
has to prove by the cogent evidence that
respondent-accused has helped by illegal
means in procurement of these reservation
tickets, by co-accused Chandra Kant
Purohit, only then the guilt of the
respondent-accused will stand proved.
From the perusal of the evidence on record,
it is clear that there is no sufficient
evidence on the record to prove the
aforesaid facts. There is no evidence on
record to establish that while issuing the
PRS window tickets, the respondentaccused has committed any irregularity or
violated any rule.

11. From the perusal of the impugned
judgment, it is clear that the learned trial
court has described the entire evidence
produced by the prosecution and has fully
analyzed and has appreciated the oral and
documentary evidence available on record
and has minutely discussed every aspect
and after appreciation of evidence, the
learned trial court has come to the
conclusion that the prosecution has failed
to prove its case against respondent no.2
Pratibha Dubey. There is no illegality or
perversity in the above findings of the
learned trial court.

12. While considering the scope of
interference in an appeal or revision against
acquittal, it has been held by the Supreme
Court that if two views of the evidence are
reasonably possible, one supporting the
acquittal and other indicating conviction,
the High Court shluld not, in such a
situation, reverse the order of acquittal
recorded by the trial court. In the matter of
State of Karnataka vs. K. Gopalkrishna
reported in (2005) 9 SCC 291, the Hon'ble
Supreme Court, while dealing with an
appeal against acquittal, observed as under:

"In such an appeal the Appellate
Court doe not lightly disturb the findings of
fact recorded by the Court below. If on the
basis of the same evidence, two views are
reasonably
possible,
and
the
view
favouring the accused is accepted by the
Court below, that is sufficient for upholding
the order of acquittal. However, if the
Appellate Court comes to the conclusion
that the findings of the court below are
wholly unreasonable or perverse and not
based on the evidence on record, or suffers
from serious illegality including ignorance
or misreading of evidence on record, the
Appellate Court will be justified in setting
aside such an order of acquittal."

13. In the case of Babu vs. State of
Keral (2010) 9 SCC 189, the Hon'ble Apex
Court has held that:

"This Court time and again has
laid down the guidelines for the High Court
to interfere with the judgment and order of
acquittal passed by the trial court. The
appellate court should not ordinarily set
8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
911
aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the more
probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law".

14. In Dilawar Singh v. State of
Haryana, (2015) 1 SCC 737, the Supreme
Court reiterated the same in paragraph no.
36 as under :

"36. The court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach is vitiated by
manifest illegality. In an appeal against
acquittal, this Court will not interfere with
an order of acquittal merely because on the
evaluation of the evidence, a different
plausible view may arise and views taken
by the courts below is not correct. In other
words, this Court must come to the
conclusion that the views taken by the
learned courts below, while acquitting,
cannot be the views of a reasonable person
on the material on record.

15. Considering the above legal
position and factual aspects of the case, this
Court is of the view that findings of
acquittal given by the trial court is justified
and the appeal is liable to be dismissed.

16. Accordingly, this criminal appeal
is hereby dismissed.
----------
(2021)08ILR A911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 18743 of 2020

Smt. Asha Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sheetala Prasad Pandey

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Art. 226 - Writ of
Mandamus - Bigamy - Petitioner guilty of
bigamy cannot be granted protection by
court under Article 226 from interference
by others in their living as husband and
wife - writ of mandamus cannot be issued
contrary to law or to defeat a statutory
provision including penal provision (Para
18)
B. Criminal Law - Indian Penal Code,1860
- Section 494 - Marrying again during
lifetime of husband or wife - Hindu
Marriage
Act,1955
-
Section.
17
-
Punishment of bigamy - Till a decree of
divorce is passed marriage subsist - Any
other marriage during the subsistence of
the first marriage would constitute an
offence under Section 494 I.P.C. read with
Section 17 of the Hindu Marriage Act,
1955 and the person, inspite of his
conversion to some other religion would
be liable to be prosecuted for the offence
of bigamy (Para 21)
C. Marriage - relationship in the nature of
marriage - de facto relationship, marriage-