Criminal Revision No.630 of 2003 [1 ]
IN THE HIGH COURT FOR THE STATES OF PUNJAB &
HARYANA AT CHANDIGARH
...
Criminal Revision No.630 of 2003
Decided on : March 24, 2009
PHG Naresh Kumar
… Petitioner
VERSUS
The State of Punjab
… Respondent
CORAM :
HON’BLE MR.JUSTICE A.N.JINDAL
Present: Mr.H.S.Riar, Senior Advocate assisted by
Mr.GBS Dhillon,
Advocate for the petitioner.
Mr.O.P.Dabla, Assistant Advocate General
Punjab.
A.N.JINDAL, J.-
Naresh Kumar – petitioner (herein referred as `petitioner’)
was convicted and sentenced to undergo rigorous imprisonment for two
years, for the offences under Sections 223 of the Indian Penal Code by
the Court of Judicial Magistrate Ist Class, Ludhiana on 29.9.1999, and
his appeal was also dismissed on 7.3.2003 by Additional Sessions Judge,
Ludhiana with modification in the sentence from two years to six
months.
There were three accused, namely PHG Swaran Singh,
PHG Naresh Kumar (petitioner) and Kaka Ram. However, during the
pendency of the trial PHG Swaran Singh had died.
Criminal Revision No.630 of 2003 [2 ]
In nutshell, the facts as culled out from the statement of HC
Ramesh Chander are that he was posted at Police Lines, Ludhiana on
General Duty and was entrusted the duty to produce the under-trials in
the Courts. Along with him, Constable Satnam Singh No.133, PHG
Naresh Kumar (petitioner) and PHG Swaran Sigh (since deceased) and
four other home guards were on duty. They were also provided with
official vehicle from the police lines. He further disclosed that on
17.8.1995 they had brought 64 under-trials from Central Jail, Ludhiana
to Judicial Lock-up in the courts. At about 12.30 p.m, Kaka Ram was to
appear in the court of Shri B.R.Garg, Judicial Magistrate Ist Class,
Ludhiana along with 13 other accused, the custody of which was handed
over to PHG Naresh Kumar and Swaran Singh for producing them in the
Court. The petitioner handcuffed Kaka Ram and other under-trials and
put one side of the chain in his belt. PHG Swaran Singh also
accompanied him. After about 15-20 minutes, the petitioner and Swaran
Singh told HC Ramesh Chander (i.e. the complainant) that accused
Kaka Ram had managed to escape. As such, on the statement of the
latter, a case was registered against them under Sections 223/224 of the
Indian Penal Code. The case was investigated, which was followed by a
report under Section 173 of the Code of Criminal Procedure.
Charge for the aforesaid offences was framed against the
petitioner, Kaka Ram and Swaran Singh (since deceased), to which they
pleaded as incorrect and opted to contest.
The prosecution in order to substantiate its version,
examined Sub-Inspector Sadhu Singh (PW1), ASI Kuldeep Singh
Criminal Revision No.630 of 2003 [3 ]
(PW2), HC Som Nath (PW3), Naresh Chander Bassi, Assistant
Superintendent, Central Jail, Ludhiana (PW4), HC Ramesh Chander
(PW5) and Constable Satnam Singh (PW6).
In their statements under Section 313 of the Code of
Criminal Procedure, the accused denied the allegations and pleaded their
false implication. Since PHG Swaran Singh died during trial, therefore,
the trial ended in conviction of PHG Naresh Kumar (petitioner) and
Kaka Ram. The appeal preferred by the petitioner also failed.
Arguments heard. Record perused.
There is no denying a fact that Kaka Ram was an accused
for offence under Section 25 of the Arms Act vide FIR No.77 dated
8.7.1995 registered at Police Station Division No.2, Ludhiana and
challan against him was to be presented on 21.7.1997. ASI Kuldeep
Singh (PW2) is a formal witness. HC Som Nath (PW3) disclosed that on
17.8.1995, he was working as MHC at Police Lines, Ludhiana and on
that day, he received a `robkar’ from Central Jail, Ludhiana for
producing 64 under-trials in the courts. HC Ramesh Chander as well
as Constables Satnam Singh, Gurdev Singh and Kashmira Singh, PHG
Naresh Kumar, PHG Swaran Singh and lady PHG Meena Kumari were
sent for Sadar Court Peshi vide DDR No.3 dated 17.8.1995. Naresh
Chander Bassi, Assistant Superintendent, Central Jail (PW4) stated that
accused Kaka Ram was to be produced in the court of Shri H.P.Singh,
Judicial Magistrate Ist Class, Ludhiana in case FIR No.77 dated
8.7.1995. He also disclosed that the accused Kaka Ram along with 49
other accused was sent for appearance (Peshi) in the courts. He proved
Criminal Revision No.630 of 2003 [4 ]
the entry Ex.PW4/B from the register in this regard. He also stated that
as per page No.197 of the register on 17.8.1995 HC Ramesh Chander
No.774 came from the police lines to Central Jail at 9.10 a.m, to collect
under-trials for appearance in the courts. He further disclosed that HC
Ramesh Chander was heading the police party and PHG Naresh Kumar
was also a member. It was further disclosed that out of 50 under-trials
sent in the morning, 46 returned with the police party headed by HC
Gurmeet Singh and accused Kaka Ram had absconded. Entry in this
regard was made in Ex. PW4/B. HC Ramesh Chander (PW5) has stated
that on 17.8.1995, he was posted on General Duty in police lines and on
that day, he as well as Constable Satnam Singh, PHG Naresh Kumar,
PHG Swaran Singh and four other Home Guards were deputed on duty
from police lines to Central Jail, Ludhiana for bringing under-trials for
appearance in the courts. It has also come in evidence that all the under-
trials were brought to `Bakshikhana’, old Courts, Ludhiana and 15 under-
trials were sent to the court of Shri B.R.Garg in the custody of PHG
Naresh Kumar (petitioner) and PHG Swaran Singh. The entries in this
regard have been proved as Ex.PW5/A and PW5/B. It has also been
stated by this witness that all the under-trials were attached with the belt
borne by the petitioner and PHG Swaran Singh. After 15/20 minutes, he
was informed by PHG Swaran Singh and the petitioner that accused
Kaka Ram had slipped away after unlocking the handcuff.
From the very appraisal of the evidence, it transpires that all
the 64 under-trials were brought safe to the `Bakshikhana’ by the seven
police personnel. Thereafter, fourteen under-trials were entrusted to the
Criminal Revision No.630 of 2003 [5 ]
petitioner and PHG Swaran Singh (accused-since expired) for
production before Shri B.R.Garg, Judicial Magistrate Ist Class,
Ludhiana, out of which, one Kaka Ram escaped. The golden thread
running from the provisions of Sections 223/224 IPC is the mens-rea,
which is missing in this case. Had there been any intention to make the
accused Kaka Ram escape, then they would have allowed all the under-
trials to escape. The fault apparently appears to be of the person
entrusting the custody of 14 under-trials as neither any law, nor the
predence provides for entrusting the custody of 14 under-trials to two
home guards personnel. Even otherwise, it is not feasible for the two
home guards personnel to control 14 under-trials. Thus, due to excessive
number of under-trials in the custody of inadequate Home Guard
personnel i.e, two only, Kaka Ram managed his escape..
In order to produce the accused persons in courts in safe
custody, the State should have put adequate force, so that such type of
untoward incidents could be avoided. No negligence could be imputed
to the petitioner for suffering the escape from confinement, because
negligence should further be coupled with intention and willingness, but
the prosecution has failed to lead any such evidence that negligence of
the petitioner was either willful or intentional. The paucity of the staff
and non-fulfillment of the vacancies in the security forces lead to such
untoward incident, which fact needs particular attention of the
Government.
The other argument raised by the counsel for the petitioner
is that the Trial Court has awarded rigorous imprisonment, whereas, the
Criminal Revision No.630 of 2003 [6 ]
offence is punishable with simple imprisonment only. It has also been
brought to my notice that Kaka Ram has already been arrested and is
facing trial. It may further be mentioned that there is no serious charge
on the head of Kaka Ram, but he was an accused for keeping in
possession an actuated knife. This fact contributes to prove that the
negligence, mens rea and motive on the part of the petitioner are
missing. Under these circumstances, the only inevitable conclusion,
which could be drawn is that the prosecution has failed to establish if the
petitioner negligently suffered the escape of Kaka Ram. As such, he
cannot be said to have committed an offence under Section 223 IPC.
In the above set of facts and circumstances, the evidence
appears to have not been appreciated in the correct manner by the Courts
below. Resultantly, the petition is accepted, the impugned judgment is
set aside and the petitioner is acquitted of the charge framed against him.
The fine, if deposited by him, be refunded.
March 24, 2009 ( A.N.JINDAL ) `gian' JUDGE