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2005 DIGILAW 498 (ORI)

State of Orissa v. Purna Chandra Jena

2005-08-23

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. — Learned Standing Counsel is present. Despite service of notice and intimation given by learned S.D.J.M., Bhubaneswar, the respondent is absent and no one has also appeared on his behalf. 2. Heard learned Standing Counsel. Perused the impugned judgment and the L.C.R. The circumstances giving rise to this appeal are as follows :- Prosecution was launched under Section 224, Indian Penal Code (in short, “IPC”) against the respondent in G.R. Case No.1780 of 1983 of the Court of learned S.D.J.M., Bhubaneswar on the allegation that while under arrest in connection with Balianta P.S. Case No.73 of 1983 for offence under Section 302, IPC, he escaped with the hand-cuff from the office of the C.S.I., Bhuba¬neswar on 27.8.1983. The plea of the respondent against the said charge was that he never escaped from police custody but had gone to answer the call of nature after taking permission from the Constables. According to him, when he returned after answering the call of nature no one was there at the C.S.I. Office and so he had to leave that place. But the police authorities miscon¬ceived the situation and forwarded him for escaping from lawful custody. Prosecution produced oral and documentary evidence to prove the charge, but learned S.D.J.M., Bhubaneswar, after con¬sidering such evidence came to hold that the charge under Section 224, I.P.C. is not established against the respondent. He accord¬ingly recorded an order of acquittal. Aggrieved, the State has filed this appeal to set aside the order of acquittal and to record a conviction against the respondent for offence under Section 224, I.P.C. 3. Mr. Mishra, learned Standing Counsel submits that the oral and documentary evidence establish that the respondent was lawfully arrested and while in such lawful custody, he es¬caped from the office of the C.S.I., Bhubaneswar. According to him, the trial Court went wrong in acquitting the respondent with the observation that his arrest and detention in custody was not lawful. He further submits that acquittal of an accused in a case in which he was arrested cannot ipso facto render the arrest of such accused in the case illegal. 4. Prosecution examined 11 witnesses, out of whom P.Ws. 6 and 7 are the Police Constable and Habildar respectively, who had escorted the respondent to the office of the C.S.I., Bhubaneswar on 27.8.1983. P.W.1 is the C.S.I., Bhubaneswar, who lodged the FIR. P.Ws. 4. Prosecution examined 11 witnesses, out of whom P.Ws. 6 and 7 are the Police Constable and Habildar respectively, who had escorted the respondent to the office of the C.S.I., Bhubaneswar on 27.8.1983. P.W.1 is the C.S.I., Bhubaneswar, who lodged the FIR. P.Ws. 8, 9 and 10 are witnesses, who saw the respondent running away. P.W.5 is a witness, who along with P.W.11, the I.O. chased and caught the respondent on the day following the occur¬rence. P.W.3 is the Doctor, who examined P.W.5 and found injuries on his person. P.Ws. 6 and 7 clearly stated that the respondent was under arrest in Balianta P.S. Case No.73 of 1983 for offence under Section 302, IPC and they produced the said respondent in the office of the C.S.I., Bhubaneswar on 27.8.1983 and that when the C.S.I. asked the respondent to sign on the Register, the respondent suddenly ran away from the office. They also stated that along with other Police personnel, they chased the respond¬ent, but could not catch hold of him. P.Ws. 8, 9 and 10 stated that they were playing cards nearby at the Municipal Office and they saw one person running away being chased by police person¬nel. P.W. 1 is the C.S.I., who stated that P.Ws. 4, 6 & 7 pro¬duced the respondent in his office on 27.8.1983, but the respond¬ent ran away from the office and he accordingly lodged the FIR (Ext.1) before P.W.11. P.W. 11 stated that in the morning of 28.8.1983 while he along with P.Ws. 6 and 7 were searching for the respondent they found him going on a Rickshaw near Pantha Niwas and on seeing them, the respondent jumped from the Rickshaw and started running. He also stated that he raised hullah hearing his hullah P.W.5, who was available nearby caught hold of the re¬spondent after a tussle. P.W. 11 stated that P.W.5 sustained some injuries while capturing the respondent and was examined by the doctor P.W.3. P.W.5 corroborated P.W.11. The doctor-P.W.3 also said that he found some injuries on the person of P.W.5 when he examined that person soon after the incident. The evidence of the above named witnesses and the documents, namely, FIR Ext.1, Injury Report - Ext.2 and the Command Certificate - Ext.4, clear¬ly establish that the respondent ran away from the custody of the police and was apprehended on the day following the occurrence. The evidence of the above named witnesses and the documents, namely, FIR Ext.1, Injury Report - Ext.2 and the Command Certificate - Ext.4, clear¬ly establish that the respondent ran away from the custody of the police and was apprehended on the day following the occurrence. The trial Court also came to the same conclusion,yet it acquitted the respondent basically on the plea that the respondent was acquitted of the charge of murder levelled against him in Balian¬ta P.S. Case No.73 of 1983. According to the trial Court, acquit¬tal in a case in which the respondent had been arrested renders the arrest unlawful and therefore, Section 224, IPC would not be attracted. 5. Section 224, IPC has two distinct parts. The first relates to resistance to apprehension and the second part relates to escape from custody. In order to bring home the guilt of the accused under first part, the prosecution is to prove the follow¬ing ingredients :- (1) that the accused was charged or convicted; (2) that he offered resistance or obstruction to his appre¬hension; (3) that such resistance or obstruction was illegal; and (4) that the accused offered such resistance or obstruction illegally. When the offence charged is that of escape or attempt to escape from custody, the prosecution is to prove the following: (1) that the accused was taken into custody for commission of an offence; (2) that such detention in custody was lawful; (3) that the accused escaped from such custody or made an attempt to do so; and (4) that the accused did so intentionally. So, the essential ingredients for the second part of Sec.224, IPC are that the accused must have been detained in custody lawfully and that he escaped from such custody intention¬ally. Admittedly, in the present case, the respondent was arrest¬ed in Balianta P.S. Case No.73 of 1983 for an offence under Sec.302, IPC and was forwarded in custody to be produced before the learned SDJM, Bhubaneswar on 27.8.1983. The respondent also admitted about his arrest and production in his statement under Sec. 313, Cr. P.C. When there was an allegation under Sec. 302, IPC, against the respondent and a police case had been regis¬tered, the arrest of the respondent in the case was lawful. The evidence of witnesses named above clearly establishes that while in custody of the police authorities, the respondent ran away from the office of the C.S.I., Bhubaneswar. P.C. When there was an allegation under Sec. 302, IPC, against the respondent and a police case had been regis¬tered, the arrest of the respondent in the case was lawful. The evidence of witnesses named above clearly establishes that while in custody of the police authorities, the respondent ran away from the office of the C.S.I., Bhubaneswar. The plea of the respondent was that he never escaped from the custody, but left the place to answer the call of nature and on his return, finding no police personnel present at the CSI office, he left that place. This plea is not only improbable, but is also dispelled by the fact that on the following day seeing the police personnel the respondent tried to escape and was caught hold of by the police and some citizens with much difficulty. The facts and circumstances therefore, clearly establish that the accused escaped from the custody intentionally. 6. Law nowhere provides that acquittal in a case in which an accused is arrested will by itself be sufficient to hold that the arrest was unlawful or to negate a charge under Section 224, IPC. It if is established by the prosecution that the ac¬cused, who had been taken to custody on the allegation of commis¬sion of an offence, escaped from such custody intentionally, he would be guilty of offence under Section 224, IPC despite the fact that he gets an order of acquittal in the case in which he had been arrested. Learned S.D.J.M., Bhubaneswar, therefore, went completely wrong in acquitting the respondent of the charge under Section 224, IPC simply on the ground that the said re¬spondent was found not guilty of the charge of murder in Balianta P.S. Case No.73 of 1983. The facts and circumstances of the case clearly establish that the accused intentionally escaped from lawful custody. So he would be liable for commission of offence under Section 224, I.P.C. 7. In the result, therefore, while setting aside the impugned judgment dated 20th March, 1986 passed by the learned SDJM, Bhubaneswar, I hold the respondent guilty under Section 224, IPC. The respondent is directed to appear before the learned SDJM, Bhubaneswar within a period of four weeks from today for hearing in the matter of sentence and for receiving sentence, if any, as per law. The respondent is directed to appear before the learned SDJM, Bhubaneswar within a period of four weeks from today for hearing in the matter of sentence and for receiving sentence, if any, as per law. On appearance of the respondent, learned SDJM, Bhubaneswar shall hear the respondent in the matter of sentence and pass appropriate orders. If the respondent does not appear within the time stipulated, the learned SDJM, Bhubaneswar shall take coercive measure for his production in the Court. Govt. Appeal is accordingly allowed. Appeal allowed.