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2012 DIGILAW 289 (CHH)

State of Madhya Pradesh v. Suresh Singh

2012-10-31

PRITINKER DIWAKER

body2012
JUDGMENT This appeal has been preferred against the judgment and order dated 30-3-1999 passed by Judicial Magistrate First Class, Durg in Criminal Case No. 288/1998 acquitting accused/respondent No. 1 of the charge under Section 224 and accused/respondent No.2 of the charge under Section 223, IPC. 2. Facts of the case in brief are that on 20-7-1991 respondent No.1 Suresh Singh was an under-trial prisoner for the offences under Sections 302, 364, 201, 397 and 398, IPC and as many as 27 cases were pending against him under various sections. On 20-7-1991 respondent No. 1 escaped from the District Jail Durg, a written report Ex. P-2 was prepared by Jail Superintendent and handed over to Police Station, Durg by Jail Guard namely Bhagwan Singh (PW-2) on that day itself and on 21-7-1991 F.I.R. Ex. P-1 was registered against him under Section 224, IPC. After investigation, charge- sheet was filed against respondent No. 1 Suresh Singh, respondent No.2 Puranlal and Jailor T. B. Singh showing Puranlal and T. B. Singh as absconders. From the record, it appears that on subsequent dates Puranlal and T. B. Singh surrendered before the Court and on 23-7-1992, T. B. Singh was discharged by the Trial Court. However, the Trial Court framed charge against respondent No.1 Suresh Singh under Section 224 and against jail guard Puranlal under Section 223, IPC. 3. In support of its case, prosecution has examined 07 witnesses. Statements of the respondents/accused were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 4. After hearing the parties, the Court below has acquitted the respondents/accused of the charges levelled against them. Hence, this appeal against acquittal. 5. Counsel for the appellant/State submits that the Court below has erred in law in acquitting the respondent/accused. He submits that the witnesses have categorically stated that on 20-7-1991 when in the evening roll call was made, respondent No.1 was found missing and the matter was immediately reported to the higher authorities. He submits that the fact of missing of respondent No.1 is clear from article B1 and C1 which are the relevant pages of lock-up register dated 20-7-1991 and the register of under trial prisoner Suresh Singh. He submits that the fact of missing of respondent No.1 is clear from article B1 and C1 which are the relevant pages of lock-up register dated 20-7-1991 and the register of under trial prisoner Suresh Singh. State counsel further submits that though no document has been filed by the prosecution regarding re-arrest of respondent No.1, from articles B1 and C1, it is clear that respondent No.1 escaped from the jail and thus he is liable to be convicted under Section 224, IPC. He submits that at the relevant time respondent No. 2 Puranlal was a jail guard and assigned the duty of guarding the cell where respondent No.1 Suresh Singh was kept and thus he is equally responsible for facilitating the escape of respondent No.1 and that being so he too is liable to be convicted under Section 223, IPC. He submits that the record in his possession as well as the jail record including the register of under trial prisoners dated 11-10-1991 shows the re-arrest of respondent No.1 and his lodgment in jail on that day but unfortunately this document has not been filed and proved by the prosecution for the reasons best known to the authorities. He however admits that even in the absence of document of re-arest of respondent No.1, it is apparent from articles B1 and C1 that on 20-7-1991, respondent No.1 escaped from jail. 6. On the other hand, counsel for the respondent No.1/accused submits that the prosecution has failed to prove that on 20-7-1991 respondent No.1 escaped from jail custody. He submits that unless a document is filed and proved showing re-arrest and re-admission of respondent No.1, it cannot be presumed that he escaped from jail on that day. In respect of respondent No.2 Puranlal it is submitted by Shri Somkant Verma counsel appearing for him that there is no evidence available on record that respondent No.2 facilitated the escape of respondent No.1, in any manner whatsoever from the jail custody. He submits that respondent No.2 was the in-charge of two sections of barracks and that it was practically impossible for him to guard each and every prisoner. He submits that as there was paucity of guards, respondent No.1 cannot be blamed. He submits that once on the same set of documents filed by the prosecution, jailor namely T. B. Singh has been discharged, respondent No.2 cannot be convicted under Section 223, IPC. 7. He submits that as there was paucity of guards, respondent No.1 cannot be blamed. He submits that once on the same set of documents filed by the prosecution, jailor namely T. B. Singh has been discharged, respondent No.2 cannot be convicted under Section 223, IPC. 7. Heard counsel for the parties and perused the material available on record. 8. Shyam Krishna Tiwari (PW-1) - head constable of District Jail Durg has not stated anything specific. Bhagwan Singh (PW-2) - chief guard has stated that he knew respondents/accused and on the date of incident respondent No.1 escaped from jail and information of the same was given to the higher authorities. He has stated that at the relevant time, respondent No. 2 was deputed by him in ward Nos. 1 and 2 on the instructions of jail superintendent. After obtaining written report Ex. P-2 from the jail superintendent, he handed over the same to the police and based on that, FIR Ex. P-1 was registered. He has further described as to how the duties were assigned in the jail. Ram Bharosh Sahu (PW-3) - jail guard has not stated anything against the respondents/accused. S. P. Singh (PW-4) - Assistant Jailor has stated that he knew the respondents/accused and that respondent No.1 was kept in Section - 1 of barrack No. 4, District Jail, Durg as prisoner and at about 9 p.m. respondent No.2 Puranlal whose duty was in the section of respondent No.1 came to him and enquired as to whether he (respondent No.1) came there on which he informed that he was not there. Thereafter, respondent No.1 was searched in all the barracks and when he could not be found, matter was reported to jailor and then he came to know that he (respondent No.1) escaped from jail. Respondent No.1 was in custody in connection with a case under Section 302, IPC and other cases were also pending against him. This witness has further stated that in his presence seizure of clothes of respondent No.1 was made vide Ex. P-4 from barrack No. 4. He is also the witness to seizure of warrant against respondent No.1 in some other case made under Ex. P-3 by the police. According to him, in his presence, register of admitted under trial prisoners Ex. P-5 was also seized. P-4 from barrack No. 4. He is also the witness to seizure of warrant against respondent No.1 in some other case made under Ex. P-3 by the police. According to him, in his presence, register of admitted under trial prisoners Ex. P-5 was also seized. He has stated that respondent No.1 escaped on account of negligence of respondent No.2 and had the barrack of respondent No.1 been locked by respondent No. 2, respondent No.1 could not have escaped. In cross-examination, this witness has admitted that without seeing the register, he could not tell whether respondent No. 2 was on duty in section Nos. 19 and 20. He has stated that respondent No. 2 was a contingent employee. He has admitted that without entry in the register, nobody can enter or exit from the jail premises. Santosh Singh (PW-5) - the constable of erstwhile District Jail, Durg is the witness to seizure of register made under Ex. P-5. According to this witness, on the date of incident he was on duty and had heard that respondent No. 1 escaped from the jail. R. R. Sawai (PW-6) is the witness who has proved the appointment order of respondent No.2 and stated that duty register was seized by him vide Ex. P-6. He has also proved the article - C - the register of under trial prisoners admitted in District Jail, Durg in which respondent No.1 Suresh Singh is shown at Sr. No. 5194 and date of entry is 16-2-1990. This witness has also proved article B1 - lockup note book dated 20-7-1991 showing one person having escaped from prison. From this document, it is clear as to what was the position of prisoners on 20-7-1991 in District Jail, Durg. Ghanshyam Prasad Sahu (PW-7) - jail guard, has stated that jail record was seized in his presence vide Ex. P-6. According to him, he was not aware as to who was deputed where on the date of escape of respondent No.1. He has further stated that admission register of prisoners, lock up register and duty register were seized. According to him, respondent No.2 was on temporary duty for a period of 89 days. 9. P-6. According to him, he was not aware as to who was deputed where on the date of escape of respondent No.1. He has further stated that admission register of prisoners, lock up register and duty register were seized. According to him, respondent No.2 was on temporary duty for a period of 89 days. 9. Minute examination of the evidence on record makes it clear that on 20-7-1991 respondent No.1 escaped from erstwhile District jail, Durg which has been proved by oral evidence as also on the basis of articles B1 and part of C1. Though the prosecution has not filed any document relating to re-arrest and re-admission of the respondent No.1, the same is in possession of Superintendent, Central Jail, Durg who is present before this Court. However, even non-filing of the said document by the prosecution is of no help to the respondent No.1 because from the documents available on record, it is clear that he (respondent No.1) escaped from the erstwhile District Jail, Durg. Column No. 15 of Article C-1 also confirms this fact. Record shows that in the statement of P. D. Verma, the then Jail Superintendent, recorded under Section 161 of the Code of Criminal Procedure, he has categorically stated that T. B. Singh (discharged accused) was working as jailor in erstwhile District Jail, Durg since 7-7-1990 and during his tenure, innumerable irregularities were reported such as he used to treat respondent No.1 as his brother and had no control over him. He (T. B. Singh) is also reported to have let respondent No.1 free to move around in jail premises and enjoy immunity, but for the reasons best known to the prosecution, this witness was not examined before the Court. During argument, jail Superintendent, present in the Court, has shown some documents of re-arrest and re-admission of respondent No.1 in jail but since the same has not been filed, this Court cannot take cognizance thereof. However, from the record and evidence adduced by the prosecution, it is apparent that on 20-7-1991 respondent No.1 escaped from Central Jail, Durg. 10. So far as role of respondent No.2 in facilitating respondent No. 1 from jail is concerned, evidence in this respect is not clinching and thus he is entitled for benefit of doubt. 11. However, from the record and evidence adduced by the prosecution, it is apparent that on 20-7-1991 respondent No.1 escaped from Central Jail, Durg. 10. So far as role of respondent No.2 in facilitating respondent No. 1 from jail is concerned, evidence in this respect is not clinching and thus he is entitled for benefit of doubt. 11. It is a settled legal position that in an appeal against acquittal if two views are possible, the Court should take into consideration the view favouring the accused but at the same time, it is also one of the basic legal requirements that if a perverse view has been taken by the Court below acquitting the accused, the higher Courts can interfere with the same. Court below, in the present case, has acquitted the respondent No.1 mainly on the ground that prosecution has failed to prove that on the date of incident respondent No.1 escaped from the jail custody. Unfortunately, this is not the correct position and there is sufficient evidence to show that on 20-7-1991 respondent No. 1 escaped from the erstwhile District Jail, Durg. Court below has erred in law in holding that only one gate was there in the jail premises allowing the entry and exit thereto and that the entries were to be made in the jail register at the time of entry and exit of the prisoners but in the case in hand, no document is there on record that any entry was made by the jail authorities to this effect. This finding appears to be preverse because present is a case where with the help of jail authorities respondent No.1 managed to escape from the prison but the jail authorities have chosen not to file any such document. Further, the jail authorities have not examined important witnesses including the then jail superintendent in support of their plea. Most importantly, from articles B-1 and C-1, it is proved that while counting the prisoners on the relevant date, respondent No.1 was found missing and this fact was only mentioned in the roll call. Prosecution has thus proved the escape of respondent No.1 from prison. Moreover, it is reported that respondent No.1 is facing trial in 22 cases of serious nature but still he managed to escape from jail custody. Prosecution has thus proved the escape of respondent No.1 from prison. Moreover, it is reported that respondent No.1 is facing trial in 22 cases of serious nature but still he managed to escape from jail custody. Thus acquittal of respondent No. 1 of the charge u/S. 224, IPC is bad and not in accordance with law and liable to be set aside. Order accordingly. 12. Now counsel for respondent No. 1 is heard on the question of sentence. 13. Having been held guilty u/S. 224, IPC respondent No.1 is sentenced to undergo rigorous imprisonment for one year. Let he be arrested immediately and sent to jail to serve out the sentence. 14. Acquittal of respondent No.2 however appears to be justified and accordingly, it is left undisturbed. Order accordingly.