( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 721 OF 2008 The State of Maharashtra .. Appellant Versus Nagnath s/o. Bapurao Sontakke .. Respondent Age. 22 years, Occ. Labour, R/o. Khandegaon, Tal. Basmath, Dist. Hingoli Mrs. B.R. Khekale, A.P.P. for appellant/State. Shri S.P. Katneshwarkar, Advocate for the respondent. CORAM : P.R. BORKAR,J. DATED : 22.02.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the State being aggrieved by the order of acquittal passed by the Judicial Magistrate First Class, Basmath, in S.C.C. No. 167 of 2007 decided on 03.12.2007, whereby the accused/respondent was acquitted of offence punishable under section 224 of the Indian Penal Code. 2. Brief facts giving rise to this appeal may be stated as under :- ( 2 ) . Present respondent Nagnath s/o. Bapurao Sontakke was arrested in C.R. No. 217 of 2006 registered for offences punishable under sections 302, 148, 147 of the I.P.C. and under Section 25 of the Arms Act. He was in Magistrate custody on 19.01.2007. On that day he was to be produced before the Court at Basmath and accordingly at about 3 p.m. said Nagnath and other four prisoners and two lady accused persons were produced before the Court and after the Court work was over, they were taken to the police Van and were asked to sit in the police Van. P.W.5-Head Constable – Kamble, P.W.3-police constable Chavan and police constable Jondhale stood near the police Van for guarding the accused. Police constable – Tonde (P.W.1) and police constable Shaikh have taken other two accused to the Court of Judicial Magistrate, First Class, Court No.1 at Basmath. It is case of the prosecution that respondent – Nagnath told police that he was to go for answering nature’s call and therefore police constable Chavan (P.W.3) with permission of police head constable Kamble (P.W.5) had taken out respondent – Nagnath from the police Van and took him at one corner of the Court premises for passing water. At that time respondent Nagnath ( 3 ) escaped from the custody of police constable Chavan (P.W.3) and ran away. Immediately, Basmath police were informed, police went out in search and within an hour accused Nagnath was arrested. Police constable – Tonde (P.W.1) lodged complaint, which was registered for committing offence punishable under section 224 of the I.P.C. Thereafter, on 26.02.2007 the accused was formally arrested in the present crime. Police recorded statements of various witnesses and sent charge-sheet. The prosecution in all examined five witnesses. However, the Magistrate acquitted of the offence punishable under section 224 of the I.P.C. and it is this order of acquittal which is challenged in this appeal. 3. In this case, the prosecution examined P.W.1-Dinkar Tonde, police constable, who had lodged complaint as reproduced above, P.W.2-Shobha Jondhale, another lady police constable who was standing near police Van. She stated that Nagnath wanted to answer nature’s call. Therefore, police constable Chavan had taken away respondent-Nagnath for passing water. He came back saying that respondent – Nagnath had ran away. ( 4 ) 4. P.W.5-Kamble was in-charge of the escort party, who had taken the accused persons to the Court and he has also corroborated the evidence of above witnesses. He stated that he was standing in the police van and with his permission police constable Chavan had taken out police constable Nagnath from the police Van and had escorted him for passing water. Respondent – Nagnath went away with police constable Chavan. Police constable Chavan came back running and informed that respondent Nagnath had ran away. Above said evidence is also corroborated by P.W.4 – police constable Shaikh Yusuf. 5. P.W.3-police constable Chavan has stated that respondent – Nagnath and other accused persons were brought from the Court after producing them before the Court, they were sitting in the police Van. Two other accused persons had been to the Court by police constable Tonde and police constable Shaikh. At that time he along with Head Constable Kamble and police constable Jondhale were standing near the Van. Prisoner Nagnath (respondent) requested for taking him for passing water. Accordingly, with permission of Head Constable Kamble, he had taken the prisoner – Nagnath to ( 5 ) outer wall of the Court premises. However, accused Nagnath escaped from his hands and jumped over the wall and ran away. Police constable Chavan informed to Head Constable Kamble about the same. He then chased respondent Nagnath for about 1 to 2 kms, but could not catch him and after about 1 hour. However, police of Basmath police station arrested the accused from sugarcane crop. 6. Thus, there is consistent evidence. It is not disputed that the accused was an under trial prisoner in a murder case. He, however, denied that he had run away from the hands of police. According to him, false case is filed against him. But, five policemen had no reason to depose against him. In-fact, such incident only show negligence of police constable Chavan and others, which they would not have readily accepted. Policemen examined in this case are all policemen of escort party and are not concerned with the investigation. The reasons given by the Trial Court are not satisfactory. The Trial Court observed that the local police who actually caught the accused are not examined, but that will not take away evidentiary value of five constables examined. It is also observed by the Trial Court that the ( 6 ) owner of sugarcane crop was not examined. It is nobody’s case that said owner was present when the accused was arrested in the sugarcane crop. It is also observed that formal arrest of the accused was made in this crime on 26.02.2007 though the incident had taken place on 19.01.2007. The accused stole his freedom for only one hour. On same day he was sent back to the jail. So, he continued to be in Magistrate custody. So, I am not satisfied with the reasons given for acquitting the accused or not believing the prosecution witnesses. The nature of the offence itself is such that the prosecution witnesses examined are not likely to fabricate such false case and thereby put blemish on their own career. In the circumstances, this appeal deserves to be allowed. 7. Hence, the Criminal Appeal is allowed. The order passed by the Trial Court is set aside. Respondent – Nagnath s/o. Bapurao Sontakke is convicted of offence punishable under section 224 of the Indian Penal Code for escaping from lawful detention and custody of policemen. In the facts of the case, he is sentenced to suffer simple imprisonment for one month. ( 7 ) 8. It is informed that already the respondent is in jail and he is also under trial prisoner in a murder case, which he was facing. It is further informed that in this case action under section 390 of Cr.P.C. is taken and whatever period the accused has been in detention in this crime, so far as that period is concerned, the respondent will be entitled for the set off under section 428 of Cr.P.C. sd/- [P.R. BORKAR,J.] snk/2010/FEB10/crap721.08 “AUTHENTICATED COPY” (S.N. KULKARNI) P.A. TO HON’BLE JUDGE