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 co-accused 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 co-accused Chandrakant Purohit is an authorized agent of IRCTC but in greed of more money, he used to sell etickets 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. Under Section 246 Cr.P.C., the three witnesses examined under Section 244 Cr.P.C. were reproduced for further cross-examination 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 State-appellant 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 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 etickets were recovered from the possession of co-accused Chandrakant Purohit. The respondent-accused 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 respondent-accused, 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 respondentaccused 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 both the accused for 18 times including six times during duty hours of respondent-accused 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 co-accused 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 respondentaccused Pratibha Dubey and the fact that as per CDR accusedrespondent 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 co-accused is from 01.05.2018 to 17.11.2018 and in this period they have talked about 18 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 respondent-accused, 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 respondent-accused 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, [LQ/SC/2005/73] 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, [LQ/SC/2010/822] 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 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, [LQ/SC/2014/976] 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.