IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 177 of 2011. Judgement reserved on: 24.10.2011. Date of decision: 9.11.2011. Ramesh Kumar …..….. Petitioner. Vs. State of H.P. ….…. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Amit Sharma, Advocate. For the Respondent : Mr. J.S.Rana, Asstt. Advocate General. Kuldip Singh, Judge. This revision is directed against the judgement dated 10.3.2011 passed by the learned Sessions Judge, Shimla in Criminal Appeal No. 57-S/10 of 2010 affirming judgement dated 29.5.2010/ 8.6.2010 passed by the learned Judicial Magistrate Ist Class, Court No.3, Shimla in case No. 20-2 of 2010. 2. The facts in brief are that HC Gopal Singh alongwith HHC Khem Chand from Police Line, Kaithu were deputed on 11.1.2010 for production of petitioner at Rampur court and bringing him back to Kanda Jail. HC Dev Krishan and HHC Jeet Ram were also returning alongwith another accused Satpal after his production at Rampur. On 13.1.2010 at about 5.30 p.m. when complainant HC Whether the reporters of the local papers may be allowed to see the Judgment? …2… Gopal Singh alongwith HHC Khem Chand reached near Kacha road, the petitioner escaped from their lawful custody and fled away. The complainant alongwith HHC Khem Chand chased the accused and intercepted him again at a distance of half kilometer. 3. The complainant got recorded his statement, under Section 154 Cr.P.C. Ex. PW 2/A, thereupon FIR Ex. PW 9/A was registered. HHC Khem Chand sustained injuries while chasing the petitioner. He was medically examined and his MLC Ex. PW 6/D was obtained. The petitioner was also got medically examined and his MLC Ex. PW 6/B was also obtained. On conclusion of investigation, the challan was presented against the petitioner for offence, punishable under Section 224 IPC. 4. The notice of accusation for offence, punishable under Section 224 IPC was put to the petitioner, he denied the accusation and claimed trial. The prosecution has examined ten witnesses. The statement of the petitioner was recorded under Section 313 Cr.P.C. He denied the prosecution case and pleaded his innocence. According to the petitioner, the police officials were taking liquor, he had gone for answering the call of the nature, he suddenly fell down and sustained injuries. He has been falsely implicated in the case. The petitioner examined DW 1 Satpal in defence. 5. On conclusion of trial, the learned Magistrate convicted the petitioner to undergo simple imprisonment for two years and to pay a fine of Rs.5000/-, under Section 224 IPC and in default of payment of fine, the petitioner shall undergo simple imprisonment for one month. It has been stated that petitioner is in custody since …3… 13.1.2010, therefore, the period of his detention shall be set off in calculating the sentence. The learned Sessions Judge dismissed the appeal of the petitioner on 10.3.2011. The learned Sessions Judge has held that sentence of simple imprisonment of two years passed against the petitioner shall run concurrently with any other sentence passed against him with effect from 8.6.2010, hence the petitioner has filed the revision. 6. I have heard the learned counsel for the petitioner and learned Assistant Advocate General for the State and have also gone through the record. It has been submitted on behalf of the petitioner that two courts below have erred in convicting and sentencing the petitioner, under section 224 IPC. The impugned judgement is based upon surmises and conjectures. The two courts below have ignored material evidence. The conclusion drawn by the two courts below is not warranted in the facts and circumstances of the case. The defence of the petitioner has been discarded wrongly, illegally. There are material contradictions in the statements of PW 2, PW 3, PW 5 and PW 7. The prosecution evidence is unworthy of credence. The sentence imposed is unreasonable. The learned counsel for the petitioner has prayed for acceptance of revision. The learned Assistant Advocate General has supported the impugned judgement. He has submitted that the two courts below have rightly appreciated the material on record in convicting and sentencing the petitioner. In revision re-appreciation of evidence is not permissible. He has prayed for dismissal of the revision. …4… 7. PW 2 HC Gopal Singh has stated that on 13.1.2010, he and HHC Khem Chand were bringing back the petitioner from Rampur to Kanda Jail. HHC Jeet Ram, HC Dev Krishan were also bringing another accused from Rampur to Kanda Jail. At about 5.30 p.m., the petitioner escaped from the custody. He and HHC Khem Chand chased the petitioner for about half kilometer and petitioner fell down and thus they were in a position to overpower the petitioner. He was brought back. HHC Jeet Ram also helped them. 8. PW 2 informed the police post. He made statement Ex.PW 2/A. The petitioner made an attempt to escape from the lawful custody. In cross-examination, he denied that petitioner after getting down from the bus had shown his intention to answer the call of the nature. He denied that petitioner was not permitted to go to answer the call of the nature. It has also been denied that petitioner slipped from loose soil and he asked for help. He denied that petitioner had gone to answer the call of the nature. He has also denied that petitioner had gone with due permission. He has denied that petitioner has been falsely implicated in the case. 9. PW 3 HHC Khem Chand on material particulars corroborated the statement of PW 2. This witness has also been cross-examined and suggestions were given to him on the same lines as were given to PW 2 that petitioner had gone to answer the call of the nature which the witness has denied. PW 1 Nikka Ram has proved the copy of rapat No. 42 dated 11.1.2010 Ex. PW 1/A, abstract of duty register Ex. PW 1/B. …5… 10. PW 5 HC Dev Krishan has stated that he and HHC Jeet Ram had accompanied accused Satpal on 11.1.2010 for producing him in the court of learned Sessions Judge, Rampur. On 13.1.2010 they were returning from Rampur to Kanda Jail. He and HHC Jeet Ram were walking alongwith accused Satpal. HC Gopal and HC Khem Chand were also going with petitioner. The petitioner all of a sudden escaped from the custody of Gopal and HHC Khem Chand, who chased him and with great difficulty overpowered him. HHC Jeet Ram also helped them. In cross-examination, he denied his ignorance that petitioner asked Khem Chand and Gopal to permit him to go for answering the call of the nature. He denied that petitioner slipped from the loose soil. He denied that petitioner while slipping asked for help of police. 11. PW 6 Dr. Peeyush Kumar has examined Ramesh Kumar on 13.1.2010 at about 9.25 p.m. and issued MLC Ex. PW 6/B. He also examined HHC Khem Chand and issued MLC Ex. PW 6/D. PW 7 HHC Jeet Ram (in the statement, name has been written as Deep Ram) has corroborated the statements of PW 2 HC Gopal Singh, PW 3 HHC Khem Chand, PW 5 HC Dev Krishan on material particulars. He denied the suggestion of the defence that petitioner had not escaped from the custody. He has also denied that petitioner wanted to answer the call of the nature. The defence has given suggestion to this witness that there was dark, therefore, petitioner had slipped. PW 9 Om Parkash has proved the copies of jail warrants Ex. PW 9/B-1 to Ex. PW 9/B-4. PW 10 Satya Parkash is the investigating officer. …6… 12. DW 1 Satpal has stated that petitioner had sought the permission of the constables, who were accompanying him to go for answering the call of the nature, but they refused. On this Ramesh of is own proceeded to answer the call of the nature. He was sitting, the soil was wet and he slipped. He sought help and then three policemen went to help him. The policemen also sustained some injuries while saving Ramesh. In cross-examination, he has stated that he and Ramesh are from one village, they are good friends. Both of them were accused in one case under the NDPS Act. In the statement, under section 313 Cr.P.C., the petitioner has stated that police officials were taking liquor, he had gone to toilet and suddenly fell down and police officials also fell upon him and he also sustained injuries. 13. PW 1, PW 2, PW 3, PW 5 and PW 7 have corroborated the statements of each other. They have stated that petitioner tried to escape from the custody of PW 2 Gopal Singh and PW 3 Khem Chand. It is not the case of the defence that petitioner was not in custody on the relevant date. The petitioner has taken contradictory stand in the defence. The petitioner has given suggestion to PW 2 that petitioner wanted to answer the call of the nature, he was stopped, he slipped from the loose soil and he cried for help. The petitioner gave suggestion to PW 3 Khem Chand that he slipped from the loose soil. The policemen became furious, they falsely implicated the petitioner in a case escaping from the custody. The petitioner has given suggestion to PW 5 Dev Krishan that petitioner ran away for toilet and slipped from the loose soil. The petitioner gave …7… suggestion to PW 7 HHC Jeet Ram that it was dark and, therefore, the petitioner slipped. 14. DW 1 Satpal has stated that on that date there was snow fall at Shimla The petitioner sought permission of the policemen accompanying him for going to toilet which was refused. Upon this petitioner of his own went to toilet. The soil was wet and he slipped. In the statement, under section 313 Cr.P.C., the petitioner has stated that police officials were taking liquor. He had gone to toilet and suddenly fell down. In the statement, under section 313 Cr.P.C., the petitioner has nowhere stated that he sought the permission from the policemen accompanying him, which was refused and then he of his own went to answer the call of the nature. The policemen were taking liquor was never the defence of the petitioner and was not at all put to any prosecution witness. 15. There is no consistency in the stand of the petitioner. The petitioner himself has admitted that he fell down and sustained some injuries. There is no reason to disbelieve the prosecution witnesses, who have clearly stated that petitioner escaped from the lawful custody, but he was overpowered. The statement of DW 1 Satpal is not believable. DW 1 and petitioner are from one village, they are good friends. The two courts below have concurrently recorded a finding of fact and returned the finding holding petitioner guilty of offence punishable under Section 224 IPC. It has not been established by the petitioner that the view taken by the two courts below is wrong, illegal or the two courts below while recording the finding of guilt have ignored some material evidence. In revision the …8… re-appreciation of evidence is not permissible. It has not been shown that the impugned judgement is perverse. The conviction of the petitioner for offence, punishable under section 224 IPC cannot be said to be wrong and illegal. However, in my opinion, the sentence imposed by the two courts below is on the higher side. The petitioner has written separate application from jail which is on the part-B of the file and requested that he may be sentenced to imprisonment already undergone by him. It has come on record that petitioner was taken into custody on 13.1.2010 and since then he is in custody. The interest of justice will be met if the petitioner is sentenced to undergo simple imprisonment for the period already undergone by him. 16. In view of above discussion, the revision is partly allowed, conviction of the petitioner for offence punishable under section 224 IPC is upheld, however, sentence of the petitioner is modified. The petitioner is sentenced to undergo simple imprisonment for offence punishable under section 224 IPC for the period he has already undergone. The judgements of the two courts below are accordingly modified. The petitioner be released immediately in case his custody is not required in any other case. All pending applications are also disposed of. November 9, 2011. ( Kuldip Singh ) (Hem) Judge.