1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:08.06.2011 CORAM: THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.RC.(MD).No.343 of 2011 AND M.P.(MD).No. 1 of 2011 R.Sundaram :Revision Petitioner / Accused No.1 -Vs- State rep. By The Sub-Inspector of Police, Pudukottai Police Station, Tirunelveli District. Cr.No.355 of 2008. :Respondent / Complainant PRAYER:Petition is filed under Section 397 read with 401 of the Criminal Procedure Code, to expunge the remarks of acquittal benefit of doubt as honorable acquittal passed by the learned Additional Sessions Judge cum Fast Track Court No.I, Thoothukudi in S.C.No. 123 of 2009 dated 01.09.2009 acquitted the revision petitioner. For Petitioner:Mr.K.K.Ramakrishnan For Respondent:Mr.P.Kandasamy,Government Advocate (Crl. Side) ORDER The revision petitioner herein was arrayed as A-1 in S.C.No. 123 of 2009 on the file of the Court of Additional Sessions Judge cum Fast Track Court No.I, Thoothukudi and he along with six other accused faced prosecution for the alleged commission of the offences under Section 399 and 402 of IPC. 2.The case of the prosecution is that PW-5, who was working as a Sub- Inspector of Police in Pudukottai Police Station, was on patrol along with one Head Constable, PW-4, on 19.10.2008 at about 3.30 a.m., PW-1 lodged a complaint under Exhibit P-3 stating that the revision petitioner along with other accused made preparations to commit decoity. On getting information, PW-5 along with other police party went to the spot and effected the arrest of the accused Nos. 1 & 2 and thereafter, they were brought to the police station and a case in Crime No. 355 of 2008 was registered for the commission of the said offences. The printed FIR was marked as Exhibit P-4. 3.PW-6, the Inspector of Police attached to the Pudukottai Police Station took up the case for investigation on 19.10.2008 and after completion of investigation, filed the final report charging all the accused for the commission of the aforesaid offences. 4.The charge sheet was taken cognizance and the case in S.C.No. 123 of 2009 was made over to Fast Track Court No.I, Thoothkudi for trail. The Fast Track Court No.I, Thoothukudi, has framed the charges under Sections 399 and 402 of IPC., against the accused and questioned them and all the accused pleaded not guilty to the charges framed against them. 5.The prosecution in order to sustain their case examined PWs 1 to 6 and marked Exhibits P-1 to P-6. All the accused have been questioned under Section 313 of Cr.P.C., with regard to the incriminating circumstances made out against them and denied it as false. https://hcservices.ecourts.gov.in/hcservices/ 2 6.On behalf of the accused, no witnesses were examined and no documents were marked. 7.The Trial Court on taking into consideration the oral and documentary evidence, found that only eye witness to the alleged occurrence was PW-1 and he deposed that he did not know anything about the said occurrence. It was further found by the Trial Court that no evidence was available on record to establish that the accused assembled in the place of occurrence for the purpose of committing decoity or they made preparation to commit decoity. 8.The Trial Court also taken note of the fact that the learned Additional Public Prosecutor had also fairly conceded that there was no evidence available to bring home the guilt of the accused. 9.The Trial Court by citing the said reason held that the prosecution has miserably failed to establish the guilt of the accused beyond all the reasonable doubt and thereby acquitted all the accused under Sub-Section (1) of Section 235 of Cr.P.C. The said order of acquittal was passed on 01.09.2009. 10.Mr.K.K.Ramakrishnan, learned counsel appearing for the revision petitioner/A-1 would submit that the revision petitioner/A-1 submitted an application in registration No. 2806330 to the Tamil Nadu Uniform Services Recruitment Board, for selection to the post of Police Constable Grade II for the year 2007-2008 and he passed physical test as well as written examination. 11.It is further submitted by the learned counsel appearing for the revision petitioner that from the office of the Director General of Police, Chennai -4, he received a communication, dated 6.11.2009 stating that he faced prosecution in S.C.No. 123 of 2009 before the Fast Track Court No.I, Thoothukudi, and he was acquitted and as per Rule 13(b) of the Tamil Nadu Police Sub-Ordinate Service Rules, the conduct of the concerned candidate, prior to appointment as Grade II Police Constable, should be above board and that he has not involved in any criminal case. It has been further stated in the said communication, since the revision petitioner/A-1 involved in commission of the offences, his conduct was not good and therefore, he has not given appointment as Police Constable Grade II. 12.It is the submission of the learned counsel appearing for the revision petitioner that admittedly the prosecution has miserably failed to prove the guilt on the part of the revision petitioner/A-1 as the sole eye witness turned hostile and in fact, the Additional Public Prosecutor, who appeared before the Trial Court, has also fairly conceded that there was no evidence available to bring home the guilt of the accused. It is also submitted by the learned counsel appearing for the revision petitioner, once the Trial Court found that there was no evidence available to bring home the guilt, it ought to have honourably acquitted of the accused including the revision petitioner/A-1. But it has chosen to award benefit of doubt and acquitted all the accused and the said procedure adopted by the Trial Court is not at all proper and hence, he prays for conversion of the acquittal awarding benefit of doubt to honourable acquittal. https://hcservices.ecourts.gov.in/hcservices/ 3 13.On the said submission, the Court heard the submissions of the learned Government Advocate (Crl. Side) also. 14.A Single Bench of this Court in the order, dated 01.03.2011 made in Crl.R.C.(MD).No. 175 of 2011 has considered the similar issue and also taken into consideration the earlier order, dated 01.04.2008 made in Crl.R.C.No 369 of 2008, wherein it has been held as follows:- "The learned counsel would rely on the Judgment of this Court in Somasundarm Vs. The State through the Inspector of Police, Melur Police Station, Madurai (Crl. R.C.No. 269 of 2008, dated 28.02.2008), wherein in a similar case, the learned Single Judge of this Court, after referring to various Judgments of this Court as well as the Hon'ble Supreme Court has expunged the remarks. Further, the learned counsel for the petitioners brought to the notice of this Court that the petitioners seek public employment and if the said remark in the Judgment of the Lower Court is not expunged, that would carry a stigma and would be disqualification for them to seek employment. The Principles stated in the above said Judgment are squarely applicable to the facts of this case. In view of the above position, in my considered opinion, the observation of the learned III Additional Sessions cum PCR Court, Madurai, that the acquittal is on the basis of benefit of doubt requires to be modified so as to record the acquittal honourable. For all the reasons stated above, this Criminal Revision Petition is allowed and the finding of the Lower Court that the petitioners are acquitted on giving benefit of doubt is modified and the petitioners shall stand acquitted honourably." 15.In the above said decision, the learned Judge also taken in to consideration the decision of the Hon'ble Supreme Court of India reported in AIR 1976 SC 133 (Dhilp Kumar Sharma and other Vs. State of Madhya Pradesh) and the relevant paragraphs of the said Judgment are runs as follows:- 9. ... An order of acquittal in regard to the previous offence wipes out the guilt and turpitude attaching to the previous conviction, for, the true implication of an acquittal is as if the offender did not commit the offence for which he was tried, no matter whether the acquittal is founded on benefit of doubt or rests upon an overall rejection of the prosecution case. The sequiter that the order of acquittal implies the innocence of the accused is not dependent upon the stage of the Court proceeding at which the order was passed but it depends, plainly, upon the fact of acquittal itself... https://hcservices.ecourts.gov.in/hcservices/ 4 31.There is authority for the proposition that an order of acquittal particularly one passed on merits, wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. As kelson puts it, "it is a true annulment, an annulment with retroactive force". So when the conviction of Rohit for Prabhu's murder, was quashed, the High Curt - to borrow the felicitous words of Krishan Iyer J. - "killed the conviction not then, but performed the formal obsequies of the order which had died at birth". In yet another Judgment reported in 2001(7) SCC 231 (B.R.Kapur Vs. State of Tamil Nadu), similar view has been taken. 16.In the considered opinion of the Court, the above said order is squarely applicable to the facts of the present case. Admittedly the sole eye witness turned hostile as he did not support the case of the prosecution at all. The learned Additional Public Prosecutor who appeared before the Trial Court, also fairly conceded that there was absolutely no material to bring home the guilt of the accused with regard to the commission of the offences. Therefore, the Trial Court ought to have acquitted the revision petitioner/A-1 honourably instead of awarding benefit of doubt. 17.In the result, the Revision Petition is allowed and the order, dated 01.09.2009 in S.C.No. 123 of 2009 on the file of the Fast Track Court No.I, Thoothukudi, under which the revision petitioner/A-1 was acquitted awarding benefit of doubt, is modified to one of honourable acquittal and the revision petitioner/A-1 is honourably acquitted. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/- Deputy Registrar / TRUE COPY / Assistant Registrar To: 1. The Additional Sessions Judge cum Fast Track Court No.I, Thoothukudi. 2. The Sub-Inspector of Police, Pudukottai Police Station, Tirunelveli District. 3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4. The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai. (For Records) vsg/RP/15.06.11/4P/5C. CRL.RC.(MD).No.343 of 2011 AND MP(MD).No. 1 of 2011. https://hcservices.ecourts.gov.in/hcservices/