CR.A/12619/1996 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 126 of 1996 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUAJRAT - Appellant(s) Versus KALYABHAI PUNJABHAI PARMAR & 2 - Opponent(s) ========================================================= Appearance : MR IM PANDYA ASST. PUBLIC PROSECUTOR for Appellant(s) : 1, MR BP DALAL for Opponent(s) : 1-2, MR AY KOGJE for Opponent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 10/09/2008 ORAL JUDGMENT 1.0 By way of this appeal, the appellant- State has challenged the judgment and order of acquittal passed by the learned 2nd J.M.F.C., Anand in Criminal Case No. 477 of 1993 dated 27.09.1995. CR.A/12619/1996 2/22 JUDGMENT 2.0 The opponent Nos. 1 to 3, herein, are the original accused Nos.2 to 4 who were charged with the offences punishable under Section 224, 225(A), 465, 468, 471 and 114 of the I.P.C.. It was alleged that on 14.03.1992 while opponent Nos. 1 and 2 were on duty, original accused No.1- Ramesh @ Totadio ran away from the jail under the pretext of answering the natures call. But, opponent Nos.1 to 3 did not report the same to the higher authority and instead, with the help of each other, tried to hide the offence by ing with the jail Register of the prisoners and thereby they committed the offences as alleged above. When the fact of the running away of original accused No.1 came to light, a complaint was lodged and the investigation was carried out by the I.O.. After the investigation was over, the case was committed before the trial Court. Original accused No.1 pleaded guilty, and hence, he was punished accordingly whereas opponent Nos.1 to 3 did not plead guilty and claimed to be tried. Hence, the trial Court, after hearing all CR.A/12619/1996 3/22 JUDGMENT the parties, acquitted opponent Nos.1 to 3 from all the charges alleged against them. Hence, the present appeal. 3.0 The prosecution, in support of its case, has examined thirteen witnesses i.e.(1) Shantilal Govindbhai Patel-P.W.-1, (2) Vaghjibhai Shanabhai-P.W.-2, (3) Balaji Nathji-P.W.-3, (4) Parsottambhai Devabhai-P.W.-4, (5) Hashmukhbhai Maganbhai-P.W.-5, (6) Kalabhai Somabhai-P.W.-6, (7) Bhursinh Kalusinh-P.W.-7, (8) Juvansingh Rumalji-P.W.-8, (9)Sunilbhai Chotabhai Khristi- P.W.-9, (10)Premjibhai Chaganbhai-P.W.-10, (11) Dhirubhai Somabhai Thakor-P.W.-11, (12) Dineshchandra Nanakchandra Mishra-P.W.-12 and (13) Fulsinh Amarsinh Gohil-P.W.-13. 3.1 The prosecution has also placed reliance on certain documentary evidences i.e. Charge- sheet(Exhibit-1), deposition of Ramesh @ Totadiyo-original accused No.1(Exhibit-6), Police Report (Exhibit-17)etc. 4.0 Shantilal Govindbhai Patel-P.W.-1 was CR.A/12619/1996 4/22 JUDGMENT examined at Exhibit-16. He deposed that, at the relevant point of time, he was working as Mamlatdar, Anand city. He further deposed that on 01.04.1992, one guard namely Balaji informed him that one prisoner namely Shanbhai @ Totadio has runaway and on the basis of the said information he had sent a report in writing to the District Magistrate, Kheda about the same. He had also sent the copies of the said report to the D.S.P., Anand, Deputy Collector, Anand, Civil Court, Anand and Office of P.I, Anand Police Station. He deposed that, at the that point of time, Mr. Shaikh(i.e. original accused No.3)was working in his office as Junior Clerk and apart from that he(Mr. Shaikh)had to also look after the work pertaining to the jail i.e. maintenance of jail register, keep account of food supplied for the prisoners as well as work pertaining to the presence of prisoners. He deposed that the prisoners sent by the Court at Anand were first produced before the jailer i.e. Mr. Shaikh and Mr. Shaikh had to make note as to whether a prisoner is a convict or an under trial prisoner CR.A/12619/1996 5/22 JUDGMENT and then he used to instruct the jail guard to send the prisoner in jail and keep watch on them. He further deposed that the jailer had to check the numbers of prisoners, everyday in the morning and at evening, for providing them food. 4.1 P.W.-1 in his cross-examination stated that on 01.04.1992 one Balaji gave him a report. He further stated that it is not true that in the said report a complaint was made to him about running away of one Shanabhai @ Totadio from jail and that any cognizable offence had taken place. He stated that before his further statement was recorded by police, he never felt that one prisoner Shanabhai @ Totadio had runaway from Anand jail. He further stated that he does not remember as to whether, in his statement before police, he had mentioned that accused Ramesh @ Totadio Shankarbhai Vasava, Resi. Mangalpura convicted by the Court had runaway from jail on 01.04.1992. He stated that if any prisoner is released on bail, then, the Jailer will make entry in the register to that effect. He stated CR.A/12619/1996 6/22 JUDGMENT that it is true that from verifying the entries made in the register, it can be known as to how many prisoners are present in the jail in the evening and he further added that everyday he had to sign the said register after verifying the numbers of prisoners in the jail. He stated that from the report of Balaji he found that the prisoner is not in the jail from 01.04.1992. He further stated that he had mentioned in the report sent by him to the collector that there is no need to carry out Departmental Inquiry against Shaikh since he was not responsible for the said offence. 5.0 Vaghjibhai Shanabhai-P.W.-2 was examined at Exhibit-18. He deposed that he knows Ramesh @ Totadio by face. He reported for duty on 02.04.1992 and while talking to other persons he came to know that Ramesh @ Totadio had runaway from the jail. He deposed that after a guard reports for duty, the duty is to be assigned. He deposed that he is not aware as to who was in- charge of jail and as to how many prisoners were CR.A/12619/1996 7/22 JUDGMENT there in the jail on 24.03.1992. 5.1 P.W.-2, in his cross-examination, stated that it is true that the duty is to be changed at the interval of two hours. The time to close the jail is 6:00 clock. He has further stated that at the time of incident in question, the gate of the jail used to be kept open on account of movement of labourers of building contractor. 6.0 Balaji Nathaji-P.W.3 was examined at Exhibit-20. He deposed that on 01.04.1992, he reported for duty along with one Mohansing Vajesing, Rameshbhai Mangalbhai and Ramanbhai Punabhai and took charge from one Hasmukhbhai Maganbhai and at that time 77 prisoners were there in the jail including two lady prisoners. On the very same day at about 9:30 a.m., he received one 'Yadi' to transfer 17 prisoners to Central Jail, Vadodara and when the prisoners were checked as per the said 'Yadi', one prisoner was found to be missing. He, therefore, informed police personnels and the Jailer that one CR.A/12619/1996 8/22 JUDGMENT prisoner was missing. Hence, the Jailer came to the jail and checked the inward and outward register and it was found that date of 14.03.1992 was struck off and besides that it was written as 50 prisoners in place of 51 prisoners. 6.1 P.W.-3, in his cross-examination, stated that it is not true that while taking charge they count only heads of the prisoners, but, after calling the names of the prisoners they used to take charge. This witness specifically stated that on 01.04.1992 he had taken the charge after counting 77 prisoners by name. He stated that on finding Ramesh @ Totadio missing, he made a written report to the Jailer immediately. He clearly stated that he had not made the report of missing of prisoner to police station. He further stated that he had not mentioned in the aforesaid report as to on which date Ramesh @ Totadio had run away. He further stated that it is true that the Jailer has a separate Register of prisoners in his office and the said Register was checked by Mr. Patel, Mamlatdar everyday. CR.A/12619/1996 9/22 JUDGMENT 7.0 Parsottambhai Devabhai-P.W.-4 was examined at Exhibit-23. He deposed that he was on duty as jail guard on 13.03.1992 as well as on 14.03.1992. On that day one Kalyansinh Punjabhai was in charge and there were about 51 male and 1 female prisoners in the jail. The duty of two hours was fixed for each guard. At about 4:30 p.m., Kalyansinh took out the prisoners from their cells to answer the natures call and then again send them back in their respective cells. P.W.4 further deposed that at about 8:00 p.m. he reported for duty and counted the prisoners to take the charge and at that time he found that one prisoner was missing, hence, he informed Kalynsinh about the same. But, Kalyansinh scolded him(P.W.-4) telling that he does not know how to count and he (Kalyansinh) along with another constable counted the prisoners and then handed over the charge to him. 7.1 P.W.-4, in his cross-examination, has stated that when he reported for duty on CR.A/12619/1996 10/22 JUDGMENT 31.03.1992, all the prisoners as mentioned in jail Register were present. He further stated that on 01.04.1992, it came to his knowledge that Ramesh @ Totadio had escaped. He specifically admitted that as per the register, all the prisoners were present till 31.03.1992. He stated that it is true that at the time of taking charge, the prisoners are required to be counted and if they are found present as per the register, only then the charge is to be taken. He further stated that he had not informed anybody about the incident of 14.03.1992, except, the Jamadar. He stated that he had not seen anybody making alterations in the jail Register. He stated that food Register of the prisoners is kept in the office of the jail Superintendent. This witness stated that the government has given contract of supplying food for prisoners and the contractor used to supply food everyday in the morning as well as in the evening. 8.0 Hasmukhbhai Maganbhai-P.W.-5 was examined at Exhibit-28. He deposed that on 13.03.1992, he CR.A/12619/1996 11/22 JUDGMENT reported for duty and took the charge from Vaghjibhai. He further deposed that he was on duty from 31.03.1992 to 01.04.1992 and next day he handed over the charge to Balaji. He deposed that on completion of his duty, he had to take the prisoners to Central Jail, Vadodara. In the afternoon, while they were counting the prisoners for taking them to Central Jail, Vadodara it was found that one prisoner was less. 8.1 P.W.-5, in his cross-examination, stated that he had taken charge on 31.03.1992 and handed it back on 01.04.1992 and during that time all the prisoners were present and none of them was missing. 9.0 Kalabhai Somabhai-P.W.-6 was examined at Exhibit-31. He deposed that he knows Ramesh @ Totadia by face since he had seen him(Ramesh @ Totadio) in the jail while he was on duty. This witness specifically stated that he does not know as to from whose charge, Ramesh @ Totadio had run away. CR.A/12619/1996 12/22 JUDGMENT 10.0 Bhursinh Kalusinh-P.W.-7 was examined at Exhibit-32. He deposed that he was on double duty from 29.03.1992 to 01.04.1992 and while handing over the charge to Balaji it was found that Ramesh @ Totadio was missing. He deposed that as mentioned in the Register, all the prisoners were present on 31.03.1992. 10.1 In his cross-examination he stated that it is not true that the Jamadar on duty used to give food to the prisoners. 11.0 Juvansing Rumalji-P.W.-8 was examined at Exhibit-33. He deposed that on 15.03.1992, he was on duty as jail guard and he had taken the charge from Kalyanbhai after making necessary verification and apart from that he does not know anything. 12.0 Sunilbhai Chhotabhai Khristi-P.W.9 was examined at Exhibit-34. He deposed that Ramesh @ Totadiyo was kept in the cell next to that of him. He further deposed that on 13.03.1992, CR.A/12619/1996 13/22 JUDGMENT Ramesh @ Totadiyo was taken somewhere, but, he (Ramesh) did not tell him(P.W.-9)anything on 14.03.1992. Hence, this witness was declared hostile by the prosecution. 12.1 P.W.-9, in his cross-examination, denied that it is not true that on 13.03.1992 Ramesh @ Totadiyo was kept with him in the same cell and that he(Ramesh @ Totadiyo) had told him that he would runaway on 14.03.1992. He further stated that he does not know as to whether while Ramesh @ Totadiyo was taken out of cell to answer natures call along with other prisoners, he hid himself in latrine and then ran away from the jail. He denied that it is not true that, though, he knew the real facts, he was deposing wrongly with a view to save the accused persons. 13.0 Premjibhai Chhaganbhai-P.W.-10 was examined at Exhibit-35. He deposed that on 14.03.1992 when he reported for duty Kalyanji(opponent No.1) was in charge as Jamadar. He has further deposed that he does not know as CR.A/12619/1996 14/22 JUDGMENT to whether, at that time, Ramesh @ Totadiyo was present in the jail or not since prisoners were to be counted by one Hasmukhbhai Maganbhai who was Jamadar. This witness specifically stated that through other persons he came to know that Ramesh @ Totadiyo had run away from the jail, but, he is not aware as to from whose custody Ramesh @ Totadiyo had runaway. 14.0 So far as the evidence of other witnesses are concerned they are not of much relevance and hence, it is not necessary to take note of the same. 15.0 In the light of the above evidence, now, it has to be examined as to whether the trial Court has committed an error in acquitting the opponents, herein, or not. 15.1 In the case on hand, it is not in dispute that the original accused No.1-Ramesh @ Totadio had run away from jail at any time during the period from 14.03.1992 to 01.04.1992, but, it is CR.A/12619/1996 15/22 JUDGMENT not coming on record as to when and from whose custody Ramesh @ Totadio had run away. 15.2 From the evidence of P.W.-1 it transpires that everyday, in the evening, he had to sign the Register pertaining to the presence of prisoners after verifying the numbers of prisoners. He had to also sanction the food bills of the prisoners. P.W.-1 has stated that, in the evening, by verifying the Jail Register it can be known as to how many prisoners are there in the jail. However, in his cross-examination, he stated that he did not realize that one prisoner namely Ramesh @ Totadiyo had run away from the jail until before his statement was recorded by the police. Hence, the evidence of this witness does not throw any light on the aspect as to when and from whose custody Ramesh @ Totadio had run away. 15.3 P.W.-2 deposed that he knew Ramesh @ Totadio by face. On 02.04.1992, he reported for duty and on that day while talking with other persons, he(P.W.-2)came to know that Ramesh @ CR.A/12619/1996 16/22 JUDGMENT Totadio had run away from jail. Hence, it becomes clear that this witness has no personal knowledge of the alleged offence. 15.4 P.W.-3 in his cross-examination has stated that it is not true that at the time of change of duty he used to take charge by counting heads of the prisoners, but, he has specifically stated that only after calling the names of the prisoners he used to count the prisoners and to take charge. He has further stated that on the date of alleged offence while he was counting the prisoners by name who were to be transferred to Vadodara Central Jail, he found that Ramesh @ Totadio was missing and hence he submitted a report to P.W.-1. If the say of this witness is to be believed that he always used to take charge after counting the prisoners by calling their names and that only on 01.04.1992, he(P.W.- 3)found out that Ramesh @ Totadio was missing from the jail, then, it creates doubt about the story put forward by the prosecution that Ramesh @ Totadio had run away from the jail on CR.A/12619/1996 17/22 JUDGMENT 14.03.1992. 15.5 P.W.-4 deposed that on 14.03.1992 he reported for duty at about 8:00 p.m. and while taking charge from opponent No.1, he found that one prisoner was missing and when he drew attention of opponent No.1 towards the same, opponent No.1 scolded him (P.W.-4) and told that he(P.W.-4)does not know how to count. Then opponent No.1-himself along with other constable counted the prisoners and told P.W.-4 that all the prisoners were present. P.W.-4 further deposed that some alterations were also made in the jail Register and the numbers of the prisoners were shown as 53 – 2 = 50 in place of 51. However, in his cross-examination, P.W.-4 has fairly admitted that when he reported for duty on 31.03.1992 all the prisoners were present as mentioned in the jail Register and only on 01.04.1992, he through Balaji came to know that one prisoner namely Ramesh @ Totadiyo had run away from the jail. Apart from that he also stated that he had not seen anybody making CR.A/12619/1996 18/22 JUDGMENT alterations in the jail register. Hence, the evidence of this witness also suggest that Ramesh @ Totadiyo was in the jail till 31.03.1992. 15.6 From the evidence of P.W.-5 it transpires that he had taken charge on 31.03.1992 and he handed over the charge to P.W.-3(Balaji) on 01.04.1992 at about 8:00 a.m.. P.W.-5 in his cross-examination clearly stated that during the aforesaid period all the prisoners were present and on receipt of the 'Yadi' of the prisoners to be transferred to the Central Jail, Vadodara in the afternoon of 01.04.1992, he came to know that Ramesh @ Totadiyo had run away. Hence, evidence of this witness suggest that Ramesh @ Totadiyo was present in the jail on 31.03.1992. 15.7 P.W.-6 deposed that he had seen Ramesh @ Totadio in the jail while he was on duty, but, he had not seen him(Ramesh @ Totadiyo) thereafter. He further deposed that he does not know as to when and from whose custody Ramesh @ Totadiyo had run away. Hence, evidence of this witness also CR.A/12619/1996 19/22 JUDGMENT does not help the case of the prosecution in any way. 15.8 P.W.-7 deposed that he was on double duty from 30.03.1992 till the morning of 01.04.1992. He, in his cross-examination, clearly stated that on 31.03.1992 all the prisoners were present as per the Register. Evidence of this witness also suggests that Ramesh @ Totadiyo was in the jail till 31.03.1992. 15.9 P.W.-8 had taken the charge from accused No.1 on 15.03.1992 and at that time all the prisoners were present. Hence, if the say of this witness is to be believed that when he took charge from accused No.1 on 15.03.1992, all the prisoners were present, then, the case put forward by the prosecution that Ramesh @ Totadiyo had runaway from jail on 14.03.1992 cannot be accepted. 15.10 P.W.-9-co-prisoner of Ramesh @ Totadiyo specifically denied to have known that while Ramesh @ Totadiyo was taken out of cell along CR.A/12619/1996 20/22 JUDGMENT with the other prisoners on 14.03.1992 to answer naturaes call, he hid himself in the latrine and then ran away from the jail. Evidence of this witness also does not help the case of the prosecution in any way. 15.11 P.W.-10 deposed that he is not aware as to whether on 14.03.1992 when he reported for duty Ramesh @ Totadiyo was present in the jail or not. This witness further deposed that through others he came to know that Ramesh @ Totadiyo had runaway. Hence, from the evidence of this witness also nothing is coming on record which would show that as to when and from whose custody Ramesh @ Totadiyo had runaway. 15.12 So far as the evidence of the investigating officers are concerned they also do not throw any light on the aspect as to when and from whose custody Ramesh @ Totadiyo had runaway. Apart from the above said oral evidence, documentary evidence also suggest that during the period from 14.03.1992 to 01.04.1992, many different persons were in charge as Jamadar and CR.A/12619/1996 21/22 JUDGMENT many other persons discharged their duty as jail guard. From the record it clearly transpires that the in charge had to take charge from his predecessor after counting the prisoners and that the duties of the guards were also changed after each two hours, but, during the aforesaid entire period neither any in charge-Jamadar nor any jail guard complained that Ramesh @ Totadiyo had runaway. I have therefore no hesitation in holding that the prosecution has failed to show as to when and from whose custody Ramesh @ Totadiyo had runaway. Hence, when the prosecution has failed to prove its case that the Ramesh @ Totadiyo had runaway from the jail while opponent Nos.1 and 2 were on duty, the opponent Nos.1 to 3 cannot be held guilty for committing offence of tampering with the jail register. I am, therefore, of the opinion that the trial Court has rightly acquitted the opponents from the alleged offences. 16.0 In the result, the appeal stands dismissed. The judgment and order of acquittal CR.A/12619/1996 22/22 JUDGMENT passed by the learned 2nd J.M.F.C., Anand in Criminal Case No. 477 of 1993 dated 27.09.1995 stands confirmed. Direct service is permitted. (M.D. Shah,J.) Umesh/