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