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2009 DIGILAW 150 (CHH)

Jhumuk Lal Bhagwan Singh v. State of Chhattisgarh

2009-05-01

D.R.DESHMUKH

body2009
ORDER This order shall govern Criminal Revision No. 58/2006 by Constable Jhumuk Lal Yadav and Criminal Revision No.136/2006 by Constable Bhagwan Singh. 2. With the consent of the parties, both Criminal Revision No. 58/2006 & Criminal Revision No.136/2006 were heard finally at the stage of admission. 3. It is not in dispute that Constable Jhumuk Lal Yadav No. 658 and Constable Bhagwan Singh No. 792 were deputed by Police Station, Mohan Nagar to produce the accused Rajkumar and N. Harish before the Court of 8th Additional Sessions Judge, Jabalpur in custody. As they reached near Railway Station, Durg, accused Rajkumar and N. Harish escaped from their custody by breaking the belt. The matter was reported immediately by Constable Jhumuk Lal and Bhagwan Singh at Government Railway Police Station, Durg. Dehati Nalishi was recorded at G.R.P. Durg and investigation commenced. Both the petitioners were sent for medical examination. Dr. A.S. Gupta, who examined the petitioners, opined that Constable Jhumuk Lal had consumed alcohol but was not intoxicated and Constable Bhagwan Singh had consumed alcohol and was also under intoxication. 4. Prosecution under Section 225A of the I.P.C. was launched against the petitioners along with other co- accused namely Arvind, Asif, Rajkumar and Vinod Bihari. The Additional Chief Judicial Magistrate, Durg vide judgment dated 04.08.2005 in Criminal Case No. 1461/2002 convicted both the petitioners under Section 225A of the I.P.C. and sentenced to rigorous imprisonment for one month and to a fine of Rs.50/- each. 5. Being aggrieved, petitioner Jhumuk Lal Yadav preferred Criminal Appeal No. 305/2005 and the petitioner Bhagwan Singh preferred Criminal Appeal No. 313/2005 before the 4th Additional Sessions Judge, Durg. The learned 4th Additional Sessions Judge, Durg by judgment dated 22.11.2005 affirmed the conviction of the petitioners under Section 225A of the I.P.C. but reduced the substantive sentence to imprisonment till rising of the Court. It is this judgment which is under challenge in this criminal revision. 6. I have heard Shri K.A. Ansari, learned Senior Counsel appearing for Bhagwan Singh and Shri N.S.Dhurandhar, learned counsel appearing for Jhumuk Lal Yadav and also Shri Sushil Dubey, learned Government Advocate. I have also perused the record. 7. It is this judgment which is under challenge in this criminal revision. 6. I have heard Shri K.A. Ansari, learned Senior Counsel appearing for Bhagwan Singh and Shri N.S.Dhurandhar, learned counsel appearing for Jhumuk Lal Yadav and also Shri Sushil Dubey, learned Government Advocate. I have also perused the record. 7. Ordinarily, this Court, while exercising revisional jurisdiction, would not interfere with a concurrent finding of fact reached on appreciation of evidence by the trial Court and affirmed by the lower appellate Court, but this is one of those exceptional cases where I find that several important aspects have been overlooked by the trial Court and the lower appellate Court, which has resulted in miscarriage of justice calling for interference by this Court. 8. Both the Courts below did not consider that the prosecution did not examine any eye witness who saw the escape of the accused Rajkumar and N. Harish from the custody of Constables Jhumuk Lal Yadav and Bhagwan Singh. Both the Courts below have overlooked the material fact that Investigating Officer Ravindra Upadhyay P.W.9 admitted in paragraph 5 that the Dehati Nalishi was recorded at G.R.P. Durg, which had jurisdiction over the place of occurrence, on 09.11.1997 and the same was not produced in Court. This Dehati Nalishi would have contained the report lodged by the petitioners explaining the manner in which the accused Rajkumar and N. Harish succeeded in escaping from their custody. No explanation is forthcoming to show why this report was suppressed which creates a serious dent in the prosecution case and renders it doubtful. Both the petitioners have in their statement under Section 313 Cr.P.C. have stated that despite their being very vigilant both Rajkumar and N. Harish broke the belt and managed to escape. Both Courts also ignored that no explanation was offered for not seizing the broken belt which would have substantiated the explanation offered by the petitioners. No witness who saw the escape of Rajkumar and N. Harish was examined by the prosecution. The testimony of Paramjit Singh Chawla P.W.1, who carried the petitioners with Rajkumar and N. Harish to the Railway Station in his autorikshaw, is completely silent on this point. 9. Section 225A of the I.P.C. is as under:- "225A. No witness who saw the escape of Rajkumar and N. Harish was examined by the prosecution. The testimony of Paramjit Singh Chawla P.W.1, who carried the petitioners with Rajkumar and N. Harish to the Railway Station in his autorikshaw, is completely silent on this point. 9. Section 225A of the I.P.C. is as under:- "225A. Omission to apprehend, or sufferance of escape, on part of public servant, in cases not otherwise, provided for.-Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement, shall be punished- (a) if he does so intentionally, with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and (b) if he does so negligently, with simple imprisonment for a term which may extend to two years, or with fine, or with both. According to P. Ramanatha Aiyar's The Law Lexicon (1997th Edition) (The Encyclopaedic Law Dictionary), the word "suffer" means to allow or to permit or to admit. In the context of the present case, the word "suffer" would therefore mean `to facilitate'. 10. In order to constitute an offence under Section 225A of the I.P.C. the prosecution is required to establish that the public servant being legally bound to keep in confinement any person facilitated the escape of such person from confinement by doing any negligent act. In the present case, the prosecution alleged that the negligent act of the petitioner in facilitating the escape of the accused was that they were heavily drunk. However, the oral evidence adduced by the prosecution runs counter to it and medical evidence was also not adduced to substantiate this fact. Shiv Kumar Sinha P.W.2 has categorically stated in paragraph 2 of his cross-examination that while he was taking Constable Bhagwan Singh for medical examination, he found that Constable Bhagwan Singh was in his senses and was not drunk. Similarly, Head Constable Bhuneshwarnath Pandey P.W.6 has also admitted in cross-examination that Constable Jhumuk Lal and Bhagwan Singh had promptly informed at the Police Station regarding escape of accused Rajkumar and N. Harish by breaking the belt. Similarly, Head Constable Bhuneshwarnath Pandey P.W.6 has also admitted in cross-examination that Constable Jhumuk Lal and Bhagwan Singh had promptly informed at the Police Station regarding escape of accused Rajkumar and N. Harish by breaking the belt. He has specifically stated that Constable Jhumuk Lal had not consumed liquor. Thus, the prosecution led no material to establish that both the petitioners were negligent and had facilitated the escape of the accused persons at the time of occurrence. There is thus no reason to reject the explanation of the petitioners in their examination under Section 313 Cr.P.C. that despite their being vigilant Rajkumar and N. Harish had managed to escape by breaking the belt. 11. In this view of the matter, I am of the considered opinion that both the Courts below have failed to consider that the prosecution had failed to establish the essential ingredients necessary to constitute the offence under Section 225A of the I.P.C. I am therefore of the considered opinion that it is a fit case in which interference is called for in exercise of revisional jurisdiction. 12. In the result, both the criminal revisions are allowed. The impugned judgment dated 22.11.2005 passed by 4th Additional Sessions Judge, Durg and the judgment dated 04.08.2005 passed by the Additional Chief Judicial Magistrate, Durg are set aside. The petitioners - Constable Jhumuk Lal and Bhagwan Singh are acquitted of the charge under Section 225A of the I.P.C. Judge.