IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09-07-2008 THE HON’BLE MR.JUSTICE K. MOHAN RAM CRL.O.P. No.16344 of 2008 and CRL.APPEAL NO.504 OF 2008 State rep by Inspector of Police Villupuram Railway Police Station Villupuram District (cr.No.210/04) … Petitioner/appellant in Crl.op.16344/08/C.A.504/08/ Complainant vs Tmt.Mary Pappa Jebamani … Respondent/respondent/Accused in both Crl.O.P.N.16344 of 2008 :Petition filed under Sec.378(3) Cr.P.C praying this Court to grant leave to appeal against the judgment in S.C.No.121 of 2005 dated 5.7.2006 passed by the learned Second Additional Assistant Sessions Judge, Villupuram. Crl.Appeal No.504 of 2008: Appeal filed under Sec.378 Cr.P.C praying this Court to allow the appeal and set aside the judgment of acquittal passed by the learned Second Additional Assistant Sessions Judge, Villupuram in S.C.No.121 of 2005 dated 5.7.2006. For petitioner : Mr.Hasan Mohammed Zinnah Govt.Advocate (Crl.Side) For respondent : Tmt.Mary Pappa Jebamani Party in person ORDER The above petition has been filed seeking leave to appeal against the judgment dated 5.7.2006 passed in S.C.No.121 of 2005 on the file of the learned II Additional Assistant Sessions Judge, Villupuram, acquitting the respondent herein. https://hcservices.ecourts.gov.in/hcservices/ 2. The brief facts that are necessary for the disposal of the above said petition are set out below: 3. According to the prosecution case, on 20.8.2004, while the complainant/P.W.1 was travelling from Chennai to Tuticorin in Pearl City Express, Train in the ladies compartment, she was offered cool drinks, mixed with some sedatives by the accused/respondent herein, who was a co-passenger; after consuming cool drinks, the complainant/P.W.1 became unconscious, at that time, the accused stealthily removed the gold ‘thali’ chain, weighing 7 ½ sovereigns from the neck of the complainant/P.W.1; P.W.1 regained consciousness on the arrival of the train at Madurai and she realized that her ‘thali’ chain was missing. Hence, she preferred a complaint before the Madurai Railaway Police Station and the same was registered in Cr.No.187/2004 for offence punishable under SEcs.328 and 379 IPC. 4. Subsequently, since the occurrence was found to have taken place within the jurisdiction of the Villupuram Railway Station, the case was transferred to the file of Inspector of Police, Railways, Villupuram and it was re-numbered as Cr.No.210/2004. 5. During the course of investigation, the accused was arrested on 4.9.2004 and the stolen property was recovered and on completing the investigation, charge sheet was filed and the case was tried. 6. During the course of trial, the prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.12 and M.Os.1 to 8. On the side of the accused, no oral or documentary evidence was let in. The trial court, on consideration of the evidence on record, acquitted the accused of all the charges and being aggrieved by that, the respondent State has filed the appeal with the above said petition, seeking leave to appeal. 7. Heard the learned Government Advocate (Crl.Side). 8. The learned Government Advocate submitted that the trial court failed to take into account the admissible portion of the confession statement, given by the accused; the recovery of M.O.1 gold chain has been proved through the evidence of P.W.1, and the magazar witnesses, but the trial court failed to appreciate the same; the trial Court erred in disbelieving the evidence of P.W.1, which has been corroborated by the evidence of P.Ws.3 and 4. Though P.W.2 has been treated as hostile, P.W.2 even in the chief examination has stated that the accused was travelling in the train, sitting along with P.W.1 and this aspect has not been considered by the trial court. The reason given by the trial court for not accepting the report of P.W.10, the Judicial Magistrate, who conducted the test identification parade and his evidence that P.W.1 correctly identified the accused thrice during the course of test https://hcservices.ecourts.gov.in/hcservices/ identification parade is erroneous. 9. I have carefully considered the aforesaid submissions made by the learned Government Advocate (Crl.Side) and have perused the judgment of the trial court. I am of the considered view that the trial court has considered elaborately the entire evidence adduced by the prosecution and has recorded acceptable reasons for not believing some of the witnesses and for not believing the arrest and has ultimately came to the conclusion that the charges levelled against the respondent/accused have not been proved beyond doubt. 10. The trial court, on a consideration of the evidence of P.Ws.1 and 11, the Sub Inspector of Police has observed that even the prosecution case regarding recording of the first information report itself is doubtful. The trial court has pointed out that P.W.1/the complainant herself has stated that after getting down from the train at Madurai Railway Station, she informed the Railway Police about the occurrence and since she was feeling giddy and had a sense of vomiting she was sent to Government Hospital, Madurai and admitted there. Whereas P.W.11, Sub Inspector of Police, who is said to have recorded Ex.P.1 even in her chief examination has stated that two passengers viz., Sundari, P.W.2 and one Arumuganayaki appeared in the police Station informed that the lady co-passenger is lying unconscious in the ladies compartment of Pearl City Express, thereupon she was sent to Railway Hospital for first aid and from there, she was sent to Government Hospital, Madurai and at the hospital, after P.W.1/complainant regained consciousness, her statement was recorded. Similarly, P.W.7, the woman constable has also deposed that P.W.1 was admitted in the hospital. Pointing out the above material contradiction, the trial Court has doubted the prosecution case regarding the manner of registration of Ex.P.1 first information report itself. The aforesaid reasoning of the trial court cannot be said to be either erroneous or perverse. 11. The trial court, on a consideration of the deposition of P.W.2, has observed that while P.W.2 in her 161 statement has stated that the accused took the cool drink bottle from her bag and gave the same to P.W.1., before the Court, in her deposition, she had stated that she does not know as to who are all the co-passengers who came in the train and she has also stated that she does not know who drank what and therefore, she has been treated as hostile. 12. Similarly, the trial court, on consideration of evidence of P.W.4 has observed that P.W.4 has not actually seen the accused giving the cool drinks to P.W.1 and P.W.1 drinking the same and therefore, has come to the conclusion that there is no acceptable evidence to corroborate that the accused gave cool drinks mixed with sedatives to P.W.1. https://hcservices.ecourts.gov.in/hcservices/ 13. The trial court has also doubted the arrest of the accused, said to have been made by P.W.12. P.W.6, the woman police constable who was present with P.W.12 at the time of the alleged arrest of the accused, in her evidence stated as follows; “On 3.9.2004 at 21.30 p.m, when the accused in Cr.No.210/2004 was getting down from the ladies compartment of Muthu Nagar Express which came from Chennai to Tuticorin, was arrested by the Inspector and she assisted him. 14. P.W.12, the Inspector of Police, in his evidence has stated as follows: “On the basis of a secret information received on 3.9.2004, he went to Platform No.2 of Villupuram Railway Station at 2130 hrs and at that time, Muthu Nagar Express arrived and from the ladies compartment, the accused alighted and she was arrested and examined” 15. After considering the above, the trial Court has observed that P.W.12 has not stated before the Court about the secret information, said to have been received by him and on the basis of which, the arrest was said to have been made and therefore, has doubted the manner of arrest of the accused. 16. The admissible portion of the confession statement which led to the alleged recovery of M.Os has been marked as Ex.P.2. M.Os.1 to 8 are said to have been recovered under Ex.P.3 mahazar, which has been attested by P.W.6 and one Saravanan. The trial court has observed that while in Ex.P.3 mahazar against item No:8, the name of the tablet is written in English, whereas the same has not been mentioned in Ex.P.2 and in Ex.P.2, blank space has been left without mentioning the name of the tablet. On the basis of the said discrepancy, the trial court has doubted the recovery of M.Os 1 to 8. Admittedly, the mahazar witness P.W.5 and Saravanan (not examined) are working near the police station and P.W.5 has deposed that at the time when the mahazar was prepared, number of persons were present. P.W.12, the Inspector of Police has not stated that since no other person was available, P.W.5 and Saravanan attested the mahazar. Therefore, the recovery of M.Os.1 to 8 cannot be said to be beyond doubt. 17. Having doubted the very arrest of the accused, the trial court has observed that though P.W.10, the Judicial Magistrate, who conducted the test identification parade has deposed that P.W.1 correctly identified the accused thrice, it could not be accepted, since it is possible that even before the test identification parade, the accused could have spoken to P.W.1. https://hcservices.ecourts.gov.in/hcservices/ 18. The trial court has also considered the medical evidence available in this and found out that one Dr.Poulraj was not examined, whereas P.W.9 another Doctor has been examined and through him, Ex.P.6, Accident Register issued by the doctor Poulraj at Madurai Rajaji Hospital has been marked. P.W.9, DR.M. Natarajan, in his evidence has stated that blood test was done for P.W.1., E.C.G was taken, the urine test was done and everything was alright and has further stated in his cross that only on the basis of what the patient said, Ex.P.7, Medical Certificate has been given and he has categorically stated that Ex.P.7 was not issued on the basis of aforesaid test conducted for P.W.1. Therefore, the trial court has observed that P.W.9’s evidence does not further the prosecution case. 19. P.W.12, in chief examination has stated that the accused removed the thali chain from P.W.1's neck and handed over the same to him stating that that is the chain, which was stolen from a woman in Muthu Nagar Express on 20.3.2004. The trial court, after pointing out the said evidence of P.W.12, observed that P.W.12 has not placed any material to show that any occurrence took place on 20.3.2004. Similarly, P.W.12 has not placed any material before the Court regarding the alleged secret information received by P.W.12, based on which, he was said to have made the arrest. Only after recording the aforesaid reasons, the trial Court found the accused not guilty. 20. The aforesaid facts and circumstances of the case clearly shows that the contention of the Government Advocate (Crl.Side) that the trial court has not considered the evidence on record, cannot be countenanced. On an appreciation of the evidence on record, this Court is not able to take a different view than the view taken by the trial court. This court is of the considered view that the evidence on record is not sufficient to prove the guilt of the accused beyond doubt. Only when this Court finds an absolute assurance of the guilt of the accused on the basis of the evidence available on record, this Court can interfere with the acquittal recorded by the Court below, but not otherwise. The aforesaid view of mine is fortified by the following legal principle laid down by the Apex Court in the case of State of Rajasthan vs Sohan Lal reported in (2004) 5 SCC 573, wherein, in paragraph 3, it has been held as follows" "This Court has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the https://hcservices.ecourts.gov.in/hcservices/ High Court could take one more possible or a different view only". 21. For the aforesaid reasons, this Court is of the considered view that the leave sought for by the State for preferring the appeal against the acquittal of the accused in S.C.No.121 of 2005 cannot be granted. Accordingly, the petition seeking the leave to appeal is dismissed. Consequently, the criminal appeal also fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sr To 1.Then II Additional Assistant Sessions Judge, Villupuram. 2.-do-thro' the Principal Sessions Judge, Villupuram. 3.The Judicial Magistrate No-I,Villupuram 4.-do- thro' the Chief Judicial magistrate, Villupuram. 5.The Inspector of Police, Villupuram Railway Police Station, Villupuram District. 6.The Public Prosecutor,Madras High Court, Madras-104. 1 CC To Mr.Tmt.Mary Pappa Jebamani, Advocate, SR NO.35677. CRL.O.P. No.16344 of 2008 and CRL.APPEAL NO.504 OF 2008 msm(co) pmk/6.8.2008. https://hcservices.ecourts.gov.in/hcservices/