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Allahabad High Court · body

2014 DIGILAW 1802 (ALL)

Raj Kumar v. State of U. P.

2014-05-30

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Hon'ble Arvind Kumar Tripathi (II), J. Heard Shri Amrendra Pratap Singh, learned counsel for the revisionist and learned A.G.A for the State. 2. These two criminal revisions have been arisen out of the same judgment. Hence, they are being taken together. 3. As per factual matrix of the case, a first information report was lodged by constable 5580 Raj Kumar Police Station-G.R.P., Charbagh, in Police Station-G.R.P, Lucknow alleging that on 6.8.2013 he along with Janardan Singh Yadav escorted Ram Sajivan, son of Ram Sevak Lodh who was in jail in Case Crime No.823 of 2003, under Section18/20 N.D.P.S. Act, Crime No. Nil of 2003, under Section 41 /102 Cr.P.C and Crime No.809 of 2003, under Section 379 /411 I.P.C., Police Station-G.R.P., Lucknow to the Court of ACJM, NER. At that time due to non-availability of the Magistrate, he reached there in the Court of ACJM, NER. There too Magistrate was not available because of lunch hour. Both the constables sat in front of gate of the Court and were waiting for arrival of the Magistrate. After some time, court moharir demanded papers related to accused, then he went to the Court room with the papers and constable Janardan Singh Yadav was asked to look after the accused. There was heavy crowd in front of the gate of the Court of ACJM, NER. At about 3.00pm Ram Sajivan managed to escape. Constable Janardan Singh Yadav chased him and raised alarm. He too came out of the Court and also chased him but they could not apprehend him. On this a case under Section 224 I.P.C was registered against Ram Sajivan. After investigation, charge-sheet against constable 5580 Raj Kumar and constable 3702 Janardan Singh Yadav under Section 223 I.P.C. and under Section 224 I.P.C against Ram Sajivan Lodh was submitted. The Court took cognizance. Ram Sajivan Lodh confessed his crime in the Court. So, he was convicted under Section 224 I.P.C. and his case was decided on 26.9.2005 and his case was separated. Charge under Section 223 I.P.C was framed against both the constables who pleaded not guilty and claimed to be tried. 4. Prosecution examined P.W.-1 constable Raj Kumar (one of the accused), P.W.-2 Constable Harihar Singh G.R.P., Charbagh, P.W.-3 constable Ram Naresh Singh, P.W.-4 Head Constable 801 Babu Ram out-post GRP, Rauja, Police Station-Shahjanpur. P.W.-5 constable 3944 Ramesh Chandra and P.W.-6 Sub-Inspector Ashok Kumar. 5. 4. Prosecution examined P.W.-1 constable Raj Kumar (one of the accused), P.W.-2 Constable Harihar Singh G.R.P., Charbagh, P.W.-3 constable Ram Naresh Singh, P.W.-4 Head Constable 801 Babu Ram out-post GRP, Rauja, Police Station-Shahjanpur. P.W.-5 constable 3944 Ramesh Chandra and P.W.-6 Sub-Inspector Ashok Kumar. 5. Statement of the accused persons was recorded under Section 313 Cr.P.C. Both the accused persons have stated that there was no fault on their part. Accused was handed over to them without handcuff and despite all their care and attention Ram Sajivan managed to escape. Learned Magistrate after going through the evidence on record convicted both the accused under Section 223 Cr.P.C and directed them to undergo two years rigorous imprisonment and to pay fine of Rs.2,000/-. In default of fine, they were directed to undergo three months imprisonment. Feeling aggrieved, a criminal appeal was filed which too was rejected. Hence, both criminal revisions. 6. It was submitted by learned counsel for the revisionists that to prove the evidence under Section 223 I.P.C., prosecution will have to prove that the revisionists were negligent and due to their negligence accused Ram Sajivan managed to escape. 7. Learned A.G.A argued in support of the judgment. 8. Section 223 I.P.C is reproduced below for proper appreciation of evidence and arguments of learned counsel for the revisionists: - “223. Escape from confinement or custody negligently suffered by public servant.- Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence 58[or lawfully committed to custody], negligently suffers such person to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” 9. A perusal of above section reveals that to punish the revisionists in that offence, prosecution will have to prove that Ram Sajivan managed to escape due to their negligence. 10. To prove the negligence, prosecution has examined P.W.-1 Head Constable, Police Station-GRP, Lalganj, Police Station-Rae Bareli and Harihar Singh, constable GRP, Charbagh. P.W.-1 is accused himself. He has lodged the first information report and in his examination-in-chief has supported prosecution version of the FIR. He has been cross-examined and he has stated that he cannot tell under what circumstances Ram Sajivan escaped from their custody. P.W.-1 is accused himself. He has lodged the first information report and in his examination-in-chief has supported prosecution version of the FIR. He has been cross-examined and he has stated that he cannot tell under what circumstances Ram Sajivan escaped from their custody. This witness further stated in his cross-examination on demand of constable court Moharir, Harihar Singh went inside the court room to provide papers and the accused remained in the custody of constable Janardan Singh Yadav. 11. A perusal of the statement of P.W.-1 and P.W.-2 reveals that it has not been established by the prosecution that there was any negligence on the part of the accused persons. No independent person has been examined either by the Investigating Officer or by the prosecution. P.W.-6 Ashok Kumar, Sub-Inspector, who has investigated the case. He has stated in his cross-examination that the case was registered on a written report of constable Raj Kumar who was later on implicated as an accused. He has stated in his cross-examination that Ram Sajivan was sent without handcuff. He has further stated as per the directives of Hon'ble Apex Court unless and until the accused is involved in a serious offence or has a tendency to escape, handcuff are not applied. He has further stated that he has not investigated regarding the tendency of escape of Ram Sajivan. He has further stated that from the statement of witnesses, it has come into light that there was no evidence of negligence on the part of these two constables, but as Ram Sajivan managed to escape from their custody, then certainly, it might have been their negligence. He has admitted that several cases were pending against accused Ram Sajivan. 12. A perusal of the judgment of both the courts below reveal that they assumed that there was negligence on the part of the revisionists. Section 114 of the Indian Evidence Act deals with the power of court to presume existence of facts, illustrations (e) and (f) are as follows: - (e) that judicial and official acts have been regularly performed; (f) that the common course of business has been followed in particular cases. So, if any, presumption has to be drawn by the Court, then it will be presumed that revisionists have acted in a manner, they should have acted, unless there is evidence to the contrary. 13. So, if any, presumption has to be drawn by the Court, then it will be presumed that revisionists have acted in a manner, they should have acted, unless there is evidence to the contrary. 13. Prosecution has not examined any witness to show the negligence. There can be no presumption of negligence against the police constable in each case where the prisoner manages to escape. Prosecution has to prove the negligence beyond reasonable doubt. 14. From the perusal of the statement of witnesses P.W.-1 and P.W.-2, this fact is established that prosecution has failed to prove the negligence on the part of the revisionists. 15. Criminal Revision No. No. 461 of 2013 (Raj Kumar versus State of U.P.) and Criminal Revision No.462 of 2013 (Janardan Singh Yadav versus State of U.P.) are liable to be allowed and is hereby allowed. Judgment of the appellate court as well as judgment of the trial court is liable to be quashed and is hereby quashed. Revisionists Raj Kumar and Janardan Singh Yadav are acquitted of the charge under Section 223 I.P.C framed against them. They are on bail. They need not surrender. Their sureties are discharged.