IN THE HIGH COURT OF JUDICATURE AT MADRAS D A T ED : 05.08.2009 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR, J CRL.A.No.15 of 2002 State: Sub Inspector Railway Protection Force Police Station, Arakkonam (Crime No.1/89) rep. by Publice Prosecutor, High Court, Madras ... Appellant/ Petitioner Versus Paramasivam ... Respondent/ Accused PRAYER:Criminal Appeal filed under Section 378 Cr.P.C., against the Judgement dated 29.06.2001 in C.A.No.44/2000, on the file of Learned Principal Sessions Judge, Vellore. For Appellant : Mr.R.Muniapparaj Govt. Advocate (Crl.side) For Respondent : Mr.G. Pugazhanthi J U D G M E N T The State has preferred this Appeal against the Judgment of the learned Principal Sessions Judge, Vellore dated 29.06.2001 made in C.A.No.44 of 2000, whereby the conviction recorded and sentence of imprisonment and fine imposed by the learned Judicial Magistrate,, Arakkonam in C.C.No.236 of 1992 were set aside and the respondent herein i.e. the accused in the above said calendar case has been acquitted of the charge for an offence punishable under section 3(a) of the Railway property (Unlawful possession) Act, 1966 (29 of 1966). The appeal has been preferred after getting the leave of this court. 2.The case of the prosecution, in brief, is as follows:- 3. PW1-Gangadharan, the then Sub-Inspector of Police, Railway Protection Force, Arakkonam found one Durai with suspicious movements carrying a gunny bag near Arakonnam A/c shed at about 4.15 a.m. on 04.01.1989. Therefore PW1 intercepted the said Durai https://hcservices.ecourts.gov.in/hcservices/ on suspicion that he might be carrying Railway properties in the gunny bag. . On a search made in the gunny bag, PW1, found stolen properties belonging to the Railways in the said gunny bag carried by the said Durai. Thereafter, the confession statement of the said Durai was recorded in the presence of PW6 - Manoharan and one Rajendran. The properties were also recovered from him under seizure Magazar. As the said Durai, in his confession statement, revealed the fact that he used to steal the railway properties and sell them to waste iron dealers and said that if the police would accompany him he could identify the shop and the shop owner who used to get such stolen railway properties from him. The above said Sub-Inspector of Police, Railway Protection Force, Arakkonam (PW1) searched the premises bearing Door No.95, Gandhi Road, Palani Pettai, Arakkonam which was identified by the above said Durai to be the shop in which he used to sell the stolen railway properties. The said Durai also identified the respondent to be the person to whom he used to sell stolen railway properties. The respondent/ Accused was residing in the house available in the said Door number as a tenant under one Joseph Raj, the father of PW4- Aroghya Das. In the space that was available on the back side of the building, he had put up a thatched shed and was using it as a shop for his business of purchasing and storing waste iron. The said shop was searched in the presence of PW6 - Mahoharan and one Rajendran. In the search thus conducted by PW1, the following railway properties were recovered: 1)2 Nos of CST plates marked as M.O.3 series; 2)8 nos of. AC bearing chairs marked as M.O. 4 series; 3)5 Nos of AC Chairs were marked as M.O.5 series; 4)16 Nos of screws marked as M.O.6 series; 5) 7 Nos of steel case marked as M.O.7 series; 6) One fish plate marked as M.O.8 series; and 7) 6 break boxes marked as M.O.9 series. The above said properties were recovered in the presence of the said witnesses under search list marked as EX.P4. The said goods were identified to be railway properties and the respondent/accused was not able to account for the possession of the same. The respondent/accused also gave a confession statement in the presence of the above said witnesses and the same was recorded by P.W.1 . Ex.P5 is the said confession statement of the respondent recorded by P.W.1. The above said Durai and the respondent(Paramasivam) were arrested and produced before the court and thereupon, they were remanded to judicial custody. PW1 continued his enquiry, examined the witnesses, got the reports of P.W.2- Mr.Shanmugam, the Chief Train Inspector and P.W.3 – Mr.Chandrasekar, the Permanent Railway Inspector to the effect that the articles recovered from Durai and Paramasivam (the respondent herein) were railway properties. P.W.1 also recorded the statements of witnesses and obtained certificates from the Commissioner of Arakkonam Municipality regarding the ownership of the premises at Door No. https://hcservices.ecourts.gov.in/hcservices/ 95, Gandhi Road and to the effect that no license had been granted either to the respondent or to any body else to use the said premises for commercial purpose. P.W.1, after completing the enquiry, was satisfied that the properties recovered from Durai and Paramasivam (respondent herein/accused) were railway properties either stolen or acquired unauthorisedly by the said persons and hence submitted a complaint on the file of the trial court against the above said Durai and Paramasivam(respondent/Accused) alleging commission of an offence punishable under section 3(a) of the Railway Property (Unlawful Possession) Act, 1966. 4. The said complaint was taken on file as C.C.No.52/1989 on the file of the learned Judicial Magistrate, Arakonam. The above said Durai, arrayed as the first accused, and the Respondent herein, arrayed as the second accused, were served with copies of the complaint and the documents relied on by the complainant and they were asked to plead either guilty or not guilty. Durai, who was arrayed as Accused No.1 in the said C.C. pleaded guilty and based on his plea of guilty he was convicted and sentenced to pay a fine of Rs.5,000/-. The respondent herein pleaded not guilty, Therefore, the case as against Paramasivam (the respondent herein) was split up and assigned a new number namely, C.C.No.236 of 1992. P.W.1 to 6 were examined, Ex.P1 to P12 were marked and MO 1 to 9 were produced on the side of the Appellant/Complainant. After the completion of recording of the evidence adduced on the side of the Appellant, the respondent/accused was questioned under Section 313 (1)(b) of Criminal Procedure Code regarding the incriminating materials found in the evidence adduced on the side of the Complainant (prosecution) . He denied them as false and reiterated his stand that he was innocent. No witness was examined, no document was marked and no material object was produced on the side of the respondent/accused. 5. The learned Judicial Magistrate, No.1, Arakkonam heard the arguments advanced on either side, considered the evidence in the light of the arguments advanced on either side, and upon such consideration came to the conclusion that the charge against the accused for an offence punishable under Section 3(a) of the Railway property (Unlawful Possession) Act, 1966 (29 of 1966) had been proved beyond reasonable doubt. In line with the said finding, the learned Judicial Magistrate found him guilty and recorded a conviction. After ascertaining respondent's/accused's views regarding the punishment to be imposed, the learned Judicial Magistrate sentenced him to undergo imprisonment till rising of the court and to pay a fine of Rs.5,000/- by a Judgment dated 22.05.2000. The learned Judicial Magistrate also directed that in case of default of payment of the fine, the respondent/accused should undergo rigorous imprisonment for a period of six months. 6. Aggrieved by and challenging the judgment of conviction, the respondent herein preferred an appeal before the learned Principal Sessions Judge, Vellore in C.A.No.44 /2000. The learned https://hcservices.ecourts.gov.in/hcservices/ principall Sessions Judge, Vellore after hearing both sides, set aside the conviction and sentence passed by the learned Judicial Magistrate, Arakkonam and acquitted the Respondent/Accused by judgment dated 29.06.2001. A further direction was also issued to refund the fine amount collected from the Respondent/accused. Aggrieved by the same, the Appellant/Complainant preferred the present Appeal challenging the correctness and legality of the judgment of the Lower Appellate Court on special leave under Section 378 (4) Criminal Procedure Code. This court granted leave to prefer the Appeal against the judgment of learned Principal Sessions Judge, Vellore dated 29.06.2001 made in C.A.No.44 of 2000 by an order dated 18.01.2002 made in Crl.O.P.No.365 of 2002. Thus, the present Criminal Appeal No.15 of 2002 preferred on various grounds set out in the appeal petition, came to be taken on file. 7. The point that arises for consideration in this case is as follows:- "Whether the Judgment of the Lower Appellate Court, reversing and setting aside the conviction and sentence passed by the learned Judicial Magistrate, Arakonam, is defective and liable to be interfered with by this Court in exercise of its Appellate powers?" 8. The submissions made by Mr.R.Muniapparaj, learned Government Advocate (Crl. side) on behalf of the Appellant and Mr.G.Pugazhanthi, learned counsel appearing on behalf of the Respondent were heard. The materials available on record, including judgments of the courts below and appeal petition, were also perused. 9. Advancing arguments on behalf of the appellant/complainant Mr.R.Muniapparaj, learned Government Advocate (Crl.side) submitted that the Lower Appellate Court committed a grave error in interfering with and reversing the well considered judgment of the trial court; that the Lower Appellate Court failed to properly consider the evidence adduced on the side of the appellant/complainant and that the same led to the erroneous conclusion that Appellant/complainant had failed to prove the charge against the respondent beyond reasonable doubt . The Learned Government Advocate (Crl.side) contended further that the Lower Appellate Court simply pointed out one or two discrepancies found in the evidence adduced on the side of the appellant/complainant which were not at all discrepancies; that the Lower Appellate Court failed to consider the fact that the statements of the witnesses as well as confession statements recorded by the official of the Railway Protection Force were valid and admissible pieces of evidence; that there were more than sufficient evidence to prove the guilt of the respondent/accused, but the Lower Appellate Court had set aside the conviction and sentence for insufficient and insignificant reasons; that the Judgment of the Lower Appellate Court, as a whole, could be construed to be a crippled one as major part of evidence in this https://hcservices.ecourts.gov.in/hcservices/ case had not been taken into consideration and that viewed from any angle, the judgment of the Lower Appellate Court could not be sustained. 10. Per contra Mr. G.Pugazhanthi, learned counsel appearing for the respondent/accused contended that the Lower Appellate Judge, upon reconsideration of evidence came to the correct conclusion that the charge made against the respondent/accused was not proved beyond reasonable doubt; that the prosecution case was mainly based on the confession statement of Durai who was not prosecuted along with respondent/accused; that the reliance made by learned Judicial Magistrate on the confession statement of the said Durai was not proper; that if the evidence adduced on the side of the Appellant/Complainant minus the confession statement of Durai would be taken into consideration, the only possible conclusion was that the charge made against the accused was not proved beyond reasonable doubt; that the Lower Appellate Judge came to the correct conclusion and that there was no defect or infirmity in the judgment of the Lower Appellate Court. 11. This Court gave its anxious considerations to the rival contentions put forward on either side. The entire records were also perused. 12. The Sub Inspector of Police, Railway Protection Force, Arakkonam, who was the complainant before the Judicial Magistrate, No.1, Arakkonam is the appellant herein. He had preferred the complaint against one Durai and the respondent herein stating that both were found to have in their possession railway properties on 04.01.1989, around 4.15 .a.m. and 7.30 a.m respectively which they could not account for and that hence they had committed the offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966 ( Act 29 of 1966). Durai admitted the offence and was convicted on the plea of guilty. Respondent alone pleaded not guilty. After trial he was found guilty and convicted for the said offence by the trial court, with imprisonment till rising of the court and a fine of Rs.5000/- along with a default sentence of six months rigorous imprisonment in case of non payment of fine. On Appeal to the Lower Appellate Court, the conviction and sentence were set aside and the respondent herein was acquitted. The Correctness and legality of the judgment of the Lower Appellate Court is challenged in this appeal. 13. Section 3 of the Railway Property (Unlawful Possession) Act, 1966 reads as follows:- "Whoever is found, or is proved to have been, in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall, unless he proves that the railway property came into his possession lawfully be punishable, https://hcservices.ecourts.gov.in/hcservices/ (a) for the first offence, with imprisonment for a term which may be and adequate reasons to be mentioned in the judgment of the Court, such imprisonment extend to five years, or with fine, or with both and in the absence of special imprisonment shall not be less than one year and such fine shall not be less than one thousand rupees, (b) for the second or a subsequent offence, with imprisonment for a term which may extend to five years or with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court, such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees." From the above said provision of law, it is obvious that whenever any railway property is found or proved to be in possession of any person and such person is suspected of having stolen or having unlawfully obtained possession of the said property, the burden of proving his innocence, in other words the burden of proving that he came to possess the railway properties lawfully shall be on such person. In this case, it is the case of the prosecution that Durai (Original accused No.1) was found carrying a gunny bag on 04.01.1989 around 4.15 a.m. near Arakkonam A/c Shed and on a search made by P.W.1, the Sub Inspector of Police, Railway Protection Force, Arakkonam it was found that the gunny bag marked as M.O. 1 contained two A.C. barring plates marked as M.O.2 series. The said material objects were recovered from him in the presence of PW6 - Manoharan and one Rajendran under Exhibit P1. The said Durai, (original accused No.1) has also given a confession statement which was recorded by P.W.1 in the presence of P.W.6 and Rajendran. The said confession statement has been produced and marked on the side of appellant/complainant as Ex.P2. Recording of Ex.P2 - confession statement was not disputed by the said Durai (original accused No.1) . On the other hand, admitting the complainant's case, he pleaded guilty and based on that plea, he was convicted and punished. Even then, in order to prove the said facts, the appellant/complainant has examined P.W.1 , P.W.5 and P.W.6. P.W.5 and P.W.6 have been projected to be eye witnesses besides P.W.1 who conducted the raid, recovered the articles and recorded the confession statement of Durai. Ofcourse it is true that as per the case of the appellant/complainant, P.W.1, the Sub Inspector of Police, Railway Protection Force spotted Durai (originally arrayed as A1) carrying a gunny bag containing M.O.2 series, near the A/C Shed at about 4.15 a.m. on 04.01.1989 and intercepted him. However, the statement marked as Ex.P2 was recorded and recovery of M.O.2 series was made at about 6.00 a.m on the said date in the presence of P.W.6 and one Rajendran. Ex.P1, Mahazar was allegedly prepared at 4.15 a.m on 04.01.1989 in the presence of PW5 - Subramani and other official witnesses after the M.O.1 and 2 were recovered from Durai. Of course, at the out set there seems to be a slight https://hcservices.ecourts.gov.in/hcservices/ difference between the evidence of P.W.6 and the statement of the above said Rajendran marked as Ex.P6 regarding the time at which Durai's confession statement was recorded. But a close scrutiny will show that there is no such difference. P.W.6, an illiterate Cooli has stated that he was asked by Railway Protection Force people to be a witness for recording the statement of Durai when he went near the A/C Loco Shed in the early morning on 04.01.1989. According to his version, he stared at 4.00 .a.m. from his residence. What was the time taken by him for reaching AC Loco shed was not elicited from him. His statement has been marked as Ex.P7 and the statement of Rajendran has been marked as Ex.P6. In their statements they have stated that about 6.00 a.m., on 04.01.1989 whey witnessed the Railway Protection Force people recording the confession statement of Durai. Though P.W.6 stated that he started from his residence at 4.00 a.m, he has also stated that it was dawn when the confession statement of Durai (Ex.P2) was recorded and attested by him. Therefore, this Court has to accept the submission made by the Learned Government Advocate that in fact there was no discrepancy or contradiction between the evidence of PW6 and the statements of P.W.6 and Rajendran regarding the time at which the confession statement of Durai was recorded. 14. Clear evidence has been adduced though P.W.1, P.W.5 and P.W.6 to the effect that after the confession statement of Durai was recorded, they went along with the Railway Protection Force people to the second place of occurrence at No. 95, Gandhi Road, Palanipettai, Arakkonam, where the above said Durai identified the scrap iron shop run by the respondent herein and the respondent herein to be the owner of the said shop. Clear evidence has also been adduced through them to the effect that the said Durai informed the Railway Protection Force people that he used to sell the railway properties to the respondent herein whereupon a search was made by P.W.1 in the presence of P.W.6 Mahoharan and Rajendran as a result of which, Ex.P4- search list was prepared and M.Os. 3 to 9 were recovered. The evidence of P.Ws. 1 , 5 and 6 are cogent and without any material contradiction. The Respondent (original accused No.2) has also affixed his signature in Ex.P4- search list and admitted that such a search was made and M.Os 3 to 9 were recovered. Clear evidence has also been adduced through P.W.1, 5 and 6 to the effect that, after search and recovery, the respondent was taken to the office of the Railway Protection Force where he volunteered to give a confession statement and that the same was recorded by P.W.1 and attested by P.W.6 and Rajendran. No explanation is forth coming as to how the respondent put his signatures in the search list and the confession statement marked as Ex.P4 and P5 respectively. He has clearly admitted that no article belonging to him was recovered, though the articles M.Os.3 to 9 were recovered from his shop. Clear admission has also been made in the said statement that he used to purchase railway properties unauthorisedly brought to his shop by Durai and sell it to intending purchasers for profit. In this regard, there is a small discrepancy in the evidence adduced on the side of the https://hcservices.ecourts.gov.in/hcservices/ appellant/complainant. P.W.1 stated that before coming to the place of the respondent, he prepared an advance intimation and sent it to the magistrate and he had identified Ex.P3 to be an advance intimation. Pointing out the fact that all the M.O.s. 3 to 9 have been noted in Ex.P3, the learned counsel for the respondent contended that the alleged search and recovery were stage-managed as the said M.Os. had been mentioned in EX.P3 itself. Of course such contention can be accepted provided Ex.P3 happened to be a advance intimation. The mistake seems to have been committed by P.W.1 in identifying the Ex.P3 to be the advance intimation. In fact Ex.P3 is the occurrence report prepared after arresting the accused persons and after making recoveries and recording of the statements of the accused persons. The entire sequence of events starting from 4.15 a.m till the sending of the accused persons for remand after 8.30 a.m. has been narrated in Ex.P3. Therefore it is not correct to state that Ex.P.3 is advance intimation. 15. Apart from the parole evidence of P.Ws.1, 5 and 6 regarding the occurrence, Exs.P1, P3 and P4 are documentary evidence relating to the recovery of the articles marked as M.Os. 1 to 9 (1 and 2 from Durai and 3 to 9 from respondent). The appellant/complainant has also relied on Ex.'s P2 and P5 , the alleged confession statements of Durai and the respondent herein, besides the statements of other witnesses marked as Ex.P6 to Ex.P8 and P12. Of course, Ex.P7 and Ex.P12 are statements of the persons examined in this case as P.W.6 and P.W.4 respectively. Ex's P6 and P8 are the statements of one Rajendran and Babu recorded by P.W.1 . Those two persons were not examined as witnesses on the side of the prosecution. Therefore Ex.P6 and P8, as rightly contended by the counsel for the respondent/accused, have to be excluded from the purview of admissible evidence. They are former statements of the persons given during the course of enquiry conducted by P.W.1, the Sub-Inspector of Police, Railway Protection Force. Such former statements shall be admissible under Section 31 if they amount to admissions or under Section 32 if such a statements had been given by a person who is dead. It is quite obvious that the above said statements do not come either under section 31 or under section 32 of the Evidence Act. Then the other sections which are relevant for consideration regarding the admissibility of former statements of persons are sections 145 and 157 of the Evidence Act. Section 145 deals with the relevancy of former statements reduced to writing for the purpose of cross examination of the person making such former statement. Section 145 reads as follows " A witness may be cross-examined as to previous statements made by him in writing, or reduced to writing and relevant to the matter in question, without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of https://hcservices.ecourts.gov.in/hcservices/ contradicting him." 16. Even as per the section 145 such a former statement in writing does not become a primary or substantive evidence. The other provision of law found in the Evidence Act relating to former statements in writing is Section 157 which reads as follows:- "In order to Corroborate the testimony of a witness in respect of a fact his former statement which was made at or about the time when the fact took place can be given in evidence or the former statement given before any authority legally competent to investigate the fact may also be given and proved" 17. Even as per the Section 157 of the Evidence Act, the former statements of persons examined as a witnesses in the case can be used not as substantiate evidence but as a corroborative piece of evidence.. There is no other provision in the Evidence Act making a former statement of a person who has not been examined as a witness in the concerned case before the Court as a relevant/admissible piece of evidence. Therefore on that score alone Ex.P6 and Ex.P8 viz., (statements of Rajendran and Babu) have got to be eschewed from the purview of consideration to arrive at a conclusion whether the charges framed against the respondent/accused have been proved or not. 18. So far as the confession statement of Durai (A1) marked as Ex.P2 is concerned, apart from the applicability of the said observation made in respect of Exs P6 and P8, there is yet another hurdle for its admissibility as a piece of evidence. If at all the statement has to be construed as the confession of a