State rep by Inspector of Police Villupuram Railway Police Station Villupuram District v. Tmt. Mary Pappa Jebamani

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 09-07-2008THE HON’BLE MR.JUSTICE K. MOHAN RAMCRL.O.P. No.16344 of 2008andCRL.APPEAL NO.504 OF 2008State rep byInspector of PoliceVillupuram Railway Police StationVillupuram District (cr.No.210/04) … Petitioner/appellant in Crl.op.16344/08/C.A.504/08/ComplainantvsTmt.Mary Pappa Jebamani … Respondent/respondent/Accused inbothCrl.O.P.N.16344 of 2008 :Petition filed under Sec.378(3) Cr.P.Cpraying this Court to grant leave to appeal against the judgment inS.C.No.121 of 2005 dated 5.7.2006 passed by the learned SecondAdditional Assistant Sessions Judge, Villupuram.Crl.Appeal No.504 of 2008: Appeal filed under Sec.378 Cr.P.C prayingthis Court to allow the appeal and set aside the judgment ofacquittal passed by the learned Second Additional Assistant SessionsJudge, 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 personORDERThe above petition has been filed seeking leave toappeal against the judgment dated 5.7.2006 passed in S.C.No.121 of2005 on the file of the learned II Additional Assistant SessionsJudge, Villupuram, acquitting the respondent herein. https://hcservices.ecourts.gov.in/hcservices/

2. The brief facts that are necessary for the disposal of theabove said petition are set out below:3. According to the prosecution case, on 20.8.2004, while thecomplainant/P.W.1 was travelling from Chennai to Tuticorin in PearlCity Express, Train in the ladies compartment, she was offered cooldrinks, mixed with some sedatives by the accused/respondentherein, who was a co-passenger; after consuming cool drinks, thecomplainant/P.W.1 became unconscious, at that time, the accusedstealthily removed the gold ‘thali’ chain, weighing 7 ½ sovereignsfrom the neck of the complainant/P.W.1; P.W.1 regained consciousnesson the arrival of the train at Madurai and she realized that her‘thali’ chain was missing. Hence, she preferred a complaint beforethe Madurai Railaway Police Station and the same was registered inCr.No.187/2004 for offence punishable under SEcs.328 and 379 IPC. 4. Subsequently, since the occurrence was found to have takenplace within the jurisdiction of the Villupuram Railway Station, thecase 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 arrestedon 4.9.2004 and the stolen property was recovered and on completingthe investigation, charge sheet was filed and the case was tried.6. During the course of trial, the prosecution examined P.Ws.1 to12 and marked Exs.P.1 to P.12 and M.Os.1 to 8. On the side of theaccused, no oral or documentary evidence was let in. The trialcourt, on consideration of the evidence on record, acquitted theaccused of all the charges and being aggrieved by that, therespondent 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 courtfailed to take into account the admissible portion of the confessionstatement, given by the accused; the recovery of M.O.1 gold chain hasbeen proved through the evidence of P.W.1, and the magazar witnesses,but the trial court failed to appreciate the same; the trial Courterred in disbelieving the evidence of P.W.1, which has beencorroborated by the evidence of P.Ws.3 and 4. Though P.W.2 has beentreated as hostile, P.W.2 even in the chief examination has statedthat the accused was travelling in the train, sitting along withP.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 ofP.W.10, the Judicial Magistrate, who conducted the testidentification parade and his evidence that P.W.1 correctlyidentified 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 bythe learned Government Advocate (Crl.Side) and have perused thejudgment of the trial court. I am of the considered view that thetrial court has considered elaborately the entire evidence adduced bythe prosecution and has recorded acceptable reasons for not believingsome of the witnesses and for not believing the arrest and hasultimately came to the conclusion that the charges levelled againstthe respondent/accused have not been proved beyond doubt.10. The trial court, on a consideration of the evidence of P.Ws.1and 11, the Sub Inspector of Police has observed that even theprosecution case regarding recording of the first information reportitself is doubtful. The trial court has pointed out that P.W.1/thecomplainant herself has stated that after getting down from thetrain at Madurai Railway Station, she informed the Railway Policeabout the occurrence and since she was feeling giddy and had a senseof vomiting she was sent to Government Hospital, Madurai and admittedthere. Whereas P.W.11, Sub Inspector of Police, who is said to haverecorded Ex.P.1 even in her chief examination has stated that twopassengers viz., Sundari, P.W.2 and one Arumuganayaki appeared in thepolice Station informed that the lady co-passenger is lyingunconscious in the ladies compartment of Pearl City Express,thereupon she was sent to Railway Hospital for first aid and fromthere, she was sent to Government Hospital, Madurai and at thehospital, after P.W.1/complainant regained consciousness, herstatement was recorded. Similarly, P.W.7, the woman constable hasalso deposed that P.W.1 was admitted in the hospital. Pointing outthe above material contradiction, the trial Court has doubted theprosecution case regarding the manner of registration of Ex.P.1 firstinformation report itself. The aforesaid reasoning of the trialcourt cannot be said to be either erroneous or perverse.11. The trial court, on a consideration of the deposition ofP.W.2, has observed that while P.W.2 in her 161 statement has statedthat the accused took the cool drink bottle from her bag and gave thesame to P.W.1., before the Court, in her deposition, she had statedthat she does not know as to who are all the co-passengers who camein the train and she has also stated that she does not know who drankwhat and therefore, she has been treated as hostile.12. Similarly, the trial court, on consideration of evidence ofP.W.4 has observed that P.W.4 has not actually seen the accusedgiving the cool drinks to P.W.1 and P.W.1 drinking the same andtherefore, has come to the conclusion that there is no acceptableevidence to corroborate that the accused gave cool drinks mixed withsedatives 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 constablewho was present with P.W.12 at the time of the alleged arrest of theaccused, in her evidence stated as follows;“On 3.9.2004 at 21.30 p.m, when the accusedin Cr.No.210/2004 was getting down from theladies compartment of Muthu Nagar Express whichcame from Chennai to Tuticorin, was arrested bythe Inspector and she assisted him. 14. P.W.12, the Inspector of Police, in his evidence hasstated as follows:“On the basis of a secret informationreceived on 3.9.2004, he went to Platform No.2 ofVillupuram Railway Station at 2130 hrs and atthat time, Muthu Nagar Express arrived and fromthe ladies compartment, the accused alighted andshe was arrested and examined”15. After considering the above, the trial Court has observedthat P.W.12 has not stated before the Court about the secretinformation, said to have been received by him and on the basis ofwhich, the arrest was said to have been made and therefore, hasdoubted the manner of arrest of the accused.16. The admissible portion of the confession statement which ledto the alleged recovery of M.Os has been marked as Ex.P.2. M.Os.1 to8 are said to have been recovered under Ex.P.3 mahazar, which hasbeen attested by P.W.6 and one Saravanan. The trial court hasobserved that while in Ex.P.3 mahazar against item No:8, the name ofthe tablet is written in English, whereas the same has not beenmentioned in Ex.P.2 and in Ex.P.2, blank space has been left withoutmentioning the name of the tablet. On the basis of the saiddiscrepancy, 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 thetime when the mahazar was prepared, number of persons were present.P.W.12, the Inspector of Police has not stated that since no otherperson was available, P.W.5 and Saravanan attested the mahazar.Therefore, the recovery of M.Os.1 to 8 cannot be said to be beyonddoubt.17. Having doubted the very arrest of the accused, the trialcourt has observed that though P.W.10, the Judicial Magistrate, whoconducted the test identification parade has deposed that P.W.1correctly 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 evidenceavailable 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 MaduraiRajaji Hospital has been marked. P.W.9, DR.M. Natarajan, in hisevidence has stated that blood test was done for P.W.1., E.C.G wastaken, the urine test was done and everything was alright and hasfurther stated in his cross that only on the basis of what thepatient said, Ex.P.7, Medical Certificate has been given and he hascategorically stated that Ex.P.7 was not issued on the basis ofaforesaid test conducted for P.W.1. Therefore, the trial court hasobserved that P.W.9’s evidence does not further the prosecution case. 19. P.W.12, in chief examination has stated that the accusedremoved the thali chain from P.W.1's neck and handed over the sameto him stating that that is the chain, which was stolen from a womanin Muthu Nagar Express on 20.3.2004. The trial court, after pointingout the said evidence of P.W.12, observed that P.W.12 has not placedany material to show that any occurrence took place on 20.3.2004.Similarly, P.W.12 has not placed any material before the Courtregarding the alleged secret information received by P.W.12, based onwhich, he was said to have made the arrest. Only after recordingthe aforesaid reasons, the trial Court found the accused not guilty.20. The aforesaid facts and circumstances of the case clearlyshows that the contention of the Government Advocate (Crl.Side) thatthe trial court has not considered the evidence on record, cannot becountenanced. On an appreciation of the evidence on record, thisCourt is not able to take a different view than the view taken by thetrial court. This court is of the considered view that the evidenceon record is not sufficient to prove the guilt of the accused beyonddoubt. Only when this Court finds an absolute assurance of the guiltof the accused on the basis of the evidence available on record, thisCourt can interfere with the acquittal recorded by the Court below,but not otherwise. The aforesaid view of mine is fortified by thefollowing legal principle laid down by the Apex Court in the case ofState 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 asthe first appellate court the High Court, even whiledealing with an appeal against acquittal, was alsoentitled, and obliged as well, to scan through andif need be reappreciate the entire evidence, thoughwhile choosing to interfere only the court shouldfind an absolute assurance of the guilt on the basisof the evidence on record and not merely because the https://hcservices.ecourts.gov.in/hcservices/ High Court could take one more possible or adifferent view only".21. For the aforesaid reasons, this Court is of the consideredview that the leave sought for by the State for preferring the appealagainst the acquittal of the accused in S.C.No.121 of 2005 cannot begranted. Accordingly, the petition seeking the leave to appeal isdismissed. Consequently, the criminal appeal also fails and the sameis dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsrTo1.Then II Additional Assistant Sessions Judge, Villupuram.2.-do-thro' the Principal Sessions Judge, Villupuram.3.The Judicial Magistrate No-I,Villupuram4.-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 2008andCRL.APPEAL NO.504 OF 2008msm(co)pmk/6.8.2008.