IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.4.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.1233 of 2009 Administrator, Subrmaniya Siva Co-op. Sugar Mills Ltd., Gopalapuram, Alapuram-636 904, Pappireddipatty-Taluk, Dharmapuri District. .. Petitioner/Defacto Complainant Vs. 1. M.Rajenderan 2. State by Sub-Inspector of Police, A.Pallipatti Police Station, Pappireddipatti Taluk, Dharmapuri District. (Crime No.123 of 2008) . Respondents/Accused & Complainant Criminal Revision filed 397 & 401 of Cr.P.C. Case against the order dated 27.6.2008 in C.C.No10 of 2008 on the file of the District Munsif-cum-Judicial Magistrate, Pappireddipati. For petitioner : Mr.G.Thilakavathi For respondents: Mr.C.Prabakaran for R-1 Mr.S.Rajendiran, Govt. Advocate (Crl.Side)for R2 ORDER This Crl.R.C. is preferred against the order of acquittal, dated 27.6.2008 in C.C.No10 of 2008 on the file of the District Munsif-cum- Judicial Magistrate, Pappireddipati, acquitting the first respondent/accused from the offence under Section 381 IPC. 2. The skeleton of the prosecution case is as follows: The first respondent/accused was working in Pappireddipatti Subramaniya Siva Co-operative Sugar Mills Ltd. On the fateful day, i.e. on 23.3.2008 at about 7.30 p.m., the first respondent/accused committed theft and was lifting 9 Kgs. of brass scrap on his head near the Store- yard. At that time, P.W.4 Mustafa, the security personnel heard the whistle blow, and saw the first respondent/accused running with the https://hcservices.ecourts.gov.in/hcservices/ said brass scrap (M.O.1); P.Ws.2 and 3 rushed to the place and they caught the first respondent/accused red-handed and handed over him to P.W.1. Then, they made enquiry and at that time, the first respondent- accused has given a confession and P.W.1 gave complaint Ex.P-1 before P.W.5 Sub-Inspector of Police on the same day and Ex.P-1 complaint was received and case was registered in Cr.No.123 of 2008 for the offence under Section 381 IPC and Ex.P-4 is the FIR. The first respondent/accused was handed over along with the properties and the material objects, i.e. M.O.1 brass scrap had been seized under Form 95 Ex.P-2. P.W.5 investigating officer went to the place of occurrence and prepared observation mahazar Ex.P-5 and he prepared Ex.P-6 rough sketch. The material objects seized were marked as M.O.1. P.W.5 investigating officer examined the witnesses and concluded the investigation and filed the charge sheet against the first respondent/accused under Section 381 IPC. 3. The trial Court, after furnishing the copies of documents, framed charge against the first respondent/accused and when he was questioned about the offence, he pleaded not guilty and hence, the trial Court examined P.Ws.1 to 5 and marked Exs.P-1 to P-6 and M.O.1. Considering the oral and documentary evidence, the trial Court acquitted the first respondent/accused from the offence under Section 381 IPC, stating that P.Ws.1 and 2 are not the eye-witnesses and P.W.4 is alleged to be the eye-witness and attestor to the mahazar and there was previous enmity between the first respondent/accused and P.W.4 Mustafa, and so, a false case has been foisted against the first respondent/accused. The trial Court further observed that for the past 14 years, the first respondent/accused was working the same Mill, but there is no bad antecedent and considering the same, the trial Court acquitted the first respondent/accused, against which, the Administrator of Subramaniya Siva Co-operative Sugar Mills Ltd., has preferred this Crl.R.C. 4. Challenging the impugned order of acquittal, learned counsel appearing for the revision petitioner/Administrator of the Mill submitted that the trial Court has not considered Ex.P-2 Form 95 and Ex.P-5 seizure mahazar and the petitioner was caught red-handed. Hence, he prayed for setting aside the impugned order of acquittal and remit the case back to the trial Court for re-trial. 5. Learned counsel appearing for the first respondent-accused submitted that the trial Court has considered the evidence of P.Ws.1 to 4 and P.Ws.1 and 2 are not the eye-witness and P.W.4 is alleged to be the eye-witness and there was previous enmity between the first respondent/accused and P.W.4 and that factum has been properly considered by the trial Court. Further, the first respondent/accused was employed in the Mill for the past 14 years and there is no previous case against him and that factum has been considered by the trial Court and a false case has been foisted against the first respondent-accused https://hcservices.ecourts.gov.in/hcservices/ by P.W.4. The trial Court considered all the aspects in proper perspective and acquitted the accused and the impugned order of acquittal does not suffer from any illegality or irregularity or perversity and hence, learned counsel for the first respondent-accused prayed for dismissal of the Crl.R.C. 6. Heard the learned Government Advocate (Crl. Side) appearing for the second respondent-Police. 7. Considering the rival submissions made by both sides, it is seen that the charge has been framed against the first respondent/accused for the offence under Section 381 IPC. Even though the case of the prosecution is that the first respondent-accused was caught red-handed, to prove the offence, it is well settled principle of law as per the criminal jurisprudence that the prosecution must prove the guilt of the first respondent/accused beyond reasonable doubt. In this case, P.Ws.1 to 4 were examined. Except P.W.4, the other witnesses P.Ws.1 to 3 stated that they were not personally witnessed the incident. They have fairly conceded that for the past 14 years, no such occurrence has happened and the first respondent/accused did not involve in any case. Admittedly, there was previous enmity between P.W.4 and the first respondent/accused. That factum has been properly considered by the trial Court. Further, while considering the cross- examination of P.Ws.1 to 3, it is seen that there were security personnel in two gates and all must pass through the two gates and in both the gates, there were security personnel and they will make a thorough check and then only the employees were permitted to enter or leave the Mill premises. In such circumstances, the burden is cast upon the prosecution to prove the guilt of the first respondent/accused beyond reasonable doubt. 8. Except P.W.4, the other witnesses P.Ws.1 and 2 are not the eye- witnesses. P.W.1, in his chief examination stated that the first respondent/accused was brought by P.W.3 and P.W.4 and one Mani and they caught the accused red-handed and handed over him to the Chief Engineer. But in his cross-examination, P.W.1 conceded that the accused had been working as Daily Coolie for the past ten years and 148 persons were working as Daily Coolies and 380 persons were employed in the organisation. He further stated that in the Mill, two Security Personnel were only Daily Coolies. He fairly conceded in his cross- examination that there were two gates and all must pass through both the gates after inspection by the Security Personnel. So, the evidence of P.W.1 is not sufficient to fasten the criminal liability on the first respondent/accused. 9. P.W.2 in his evidence in chief examination, stated that he went to the place of occurrence and at that time, the first respondent/accused was surrounded by so many persons and so, he is also not the eye-witness. https://hcservices.ecourts.gov.in/hcservices/ 10. P.W.3 in his evidence stated that he alone has made a whistle blow and at that time, he has seen the first respondent/accused taking the materials M.O.1 on his head. In his cross-examination, he has stated that he has mentioned the names of Palani and Mani, but they were not examined before Court. In his cross-examination, he fairly conceded that all Daily Coolies, only after crossing the second gate, will enter or come out from the main gate. He fairly conceded that there was security check in both the places, i.e. in the second gate as well as in the main gate. 11. Considering the above evidence of the witnesses, it is to be noted that because of the enmity between P.W.4 and the first respondent-accused, a false case has been foisted against the accused and so, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion that the guilt of the accused was not proved by the prosecution beyond reasonable doubt. Furthermore, the Crl.R.C. is filed against the order of acquittal, and so, the burden is heavily upon the prosecution to prove the guilt of the accused and the power of the revisional Court is only limited. If any order suffers from illegality or irregularity or perversity, then only this Court as revisional Court is empowered to re-appreciate the evidence and set aside the order of acquittal and remit the case to the trial Court. In the earlier paragraphs of this order, the evidence of P.Ws.1 to 4 was discussed and so, I do not find any merit in the arguments advanced by learned counsel for the revision petitioner. Therefore, the findings of the trial Court are fair and proper and it does not suffer from any illegality or irregularity or perversity. 12. The Crl.R.C. is devoid of merits and the same is accordingly dismissed, confirming the impugned order of acquittal. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The District Munsif-cum-Judicial Magistrate, Pappireddipatti. 2.-do- Thro' The Chief Judicial Magistrate, Dharmapuri. 3. Sub-Inspector of Police, A.Pallipatti Police Station, Pappireddipatti Taluk, Dharmapuri District. (Crime No.123 of 2008) https://hcservices.ecourts.gov.in/hcservices/ 4. The Public Prosecutor, High Court, Madras. 5. The Record Keeper, Criminal Section, High Court, Madras. +1cc to Mr.C.Prabakaran, Advocate Sr 28136 +1cc to M/s. G.Thilakavathi, Advocate Sr 28260 PKB(CO) km/17.5. Crl.R.C.No.1233 of 2009 https://hcservices.ecourts.gov.in/hcservices/