Alam son of Harun vs State of Haryana

In terms of judgment dated 1.10.2011 and order of

sentence dated 5.10.2011 passed by the Judicial Magistrate Ist

Class, Faridabad, petitioner stands convicted for commission of

offence punishable under Section 223 of the Indian Penal Code

and has been sentenced to undergo simple imprisonment for a

period of two years.

Appeal having been preferred, the judgment of

conviction as also order of sentence passed by the trial Court has

been affirmed by the learned Additional Sessions Judge,

Faridabad vide decision dated 6.4.2012.

The instant revision petition, as such, is directed

against the concurrent conviction of the petitioner under Section

223 of the Indian Penal Code.

Briefly noticed, that the process of law was set in

motion on the statement of complainant Narain Singh, SI on the

allegations that on 16.11.2002, he along with Constable Krishan

Kumar, Constable Ashok Kumar, Constable Mohd. Alam (present

petitioner), Murli Krishan, Zonal Manager of XPS Company,

Mahilpur, Delhi and Partap Chand Jha, Area Manager as also

accused Tahir, who was in police custody in case FIR No.427

dated 28.10.2002, under Sections 395, 397, 364, 342, 506 and

412 of the Indian Penal Code as also Section 25 of the Arms Act,

were going to Delhi for search of co-accused Jamil. When they

reached Badarpur Border, accused Tahir desired to attend the call

of nature. Accordingly, vehicle was stopped and accused Tahir

was permitted to attend the call of nature in the custody of

present petitioner, but he succeeded in escaping from police

custody due to negligence of the petitioner. On the basis of such

complaint, FIR was registered. After completion of investigation,

challan was presented. Accused/petitioner was charge sheeted

under Section 223 of the Indian Penal Code, to which he pleaded

not guilty and claimed trial.

Prosecution, to prove its case, examined five witnesses

i.e. PW1 ACP Naveen Kumar, Investigating Officer, PW2 Narain

Singh (retired SI), PW3 Raghubir Singh, Inspector, PW4 Ashok

Kumar, EHC and PW5 Inspector Rishi Pal. Entire evidence

produced by the prosecution was put to the accused at the stage

of recording his statement under Section 313 of the Code of

Criminal Procedure. Accused/petitioner pleaded innocence. He,

however, did not lead any evidence in his defence. Trial has

culminated in the conviction of the petitioner and order of

sentence as noticed hereinabove.

Learned counsel appearing for the petitioner would

argue that the prosecution has failed to prove the genesis of the

allegations as regards an undertrial, namely, Tahir having

escaped from police custody on account of negligence of the

petitioner who was a serving Constable. Further argued that no

evidence had been led even as regards negligence on the part of

the petitioner so as to constitute an offence under Section 223 of

the Indian Penal Code. Further argued that the Courts below have

erred in convicting the petitioner only on the basis of suspicion

and by putting the entire burden on the accused/petitioner for

proving his innocence. It is contended that it was not open for the

Courts to have merely placed reliance upon one part of the

statement of the accused/petitioner recorded under Section 313

of the Code of Criminal Procedure. Argued that onus of proof in

criminal law is entirely on the prosecution and it was obligatory

for cogent and conclusive evidence to be led so as to prove and

substantiate the allegations against the accused persons. In the

present case, the trial Court has shifted the burden of proof upon

the accused/ petitioner for proving the fact that he was not

accompanying the complainant-SI Narain Singh on the alleged

day of occurrence and that Tahir had not escaped from his lawful

custody. Such course of action is contended to be unsustainable

in the eyes of law.

Per contra, learned State counsel would submit that

the judgment of conviction recorded by the trial Court and

affirmed by the Appellate Court is based on cogent and valid

reasons and would not call for any interference in the exercise of

the revisional jurisdiction by this Court.

Records of the case, that were duly requisitioned, have been perused.

Having heard learned counsel for the parties at length

and having perused the records, this Court is of the considered

view that the present revision petition merits acceptance.

Section 223 of the Indian Penal Code reads as under:

"223 223. Escape from confinement or custody 223 negligently suffered by public servant - Whoever,

being a public servant legally bound as such public

servant to keep in confinement any person charged

with or convicted of any offence (or lawfully committed

to custody), negligently suffers such person to escape

from confinement, shall be punished with simple

imprisonment for a term which may extend to two

years, or with fine, or with both."

A bare reading of the provision would make it clear

that for an accused to be held guilty for an offence punishable

under Section 223 of the Indian Penal Code, two ingredients

would have to be established and proved i.e. i) that the accused

in the capacity of a public servant was legally bound to keep in

confinement any person charged with or convicted of any offence,

ii) such accused has negligently suffered such person to escape

from confinement.

The entire case of the prosecution is that an accused in

FIR No.427 of 2002, namely, Tahir has escaped from police

custody and on account of the negligence of the present

petitioner.

Records of the case would reveal that no evidence has

been led regarding registration of FIR No.427 of 2002. Arrest of

Tahir in FIR No.427 dated 28.10.2002 has also not been proved

on record. As per prosecution version, Tahir had escaped from

police custody while being taken to Delhi to search for co-accused

Jamil. However, the disclosure statement of Tahir in which the

name of Jamir has cropped up, is also not on Court file.

The deposition of complainant Narain Singh, PW2

creates a serious dent in the prosecution version. PW2 has stated

that although Tahir was arrested on 16.11.2002, but he was not

produced before the Court. PW2 has also stated that he had not

recorded in the Rapat Roznamcha that he was taking accused

Tahir to Delhi.

This Court would be constrained to observe that the

prosecution has failed to adduce any credible and conclusive

evidence to prove beyond any shadow of doubt that Tahir had

been kept in confinement in the capacity of an accused and

consequentially, the present petitioner was under a legally

bounden duty to keep him secure in confinement. The essential

ingredient for commission of offence under Section 223 of the

Indian Penal Code, as such, has not been established.

Furthermore, trial Court has also committed a patent

illegality and infirmity in recording that the accused had not led

any evidence in defence to show that he was not present along

with complainant SI Narain Singh when Tahir had escaped. It was

for the prosecution to have brought home the guilt of the

accused. The onus could not have been shifted upon the

petitioner. Conviction of the petitioner has been recorded by

merely taking note of one part of the statement recorded of the

accused under Section 313 of the Code of Criminal Procedure

wherein he had stated that Tahir had not run away on account of

his negligence but had escaped from the custody of complainant

SI Narain Singh. Such part of the statement recorded under

Section 313 of the Code of Criminal Procedure, in itself, would not

be sufficient to establish and prove the ingredients for

commission of offence under Section 223 of the Indian Penal

Code. Even if the statement of the accused/petitioner under

Section 313 of the Code of Criminal Procedure was to be taken as

conclusive towards confinement of Tahir as an accused in FIR

No.427 dated 28.10.2002, still no evidence whatsoever has been

adduced towards proving the negligence of the present petitioner

as regards escape of Tahir.

For the reasons recorded above, conviction of the

petitioner under Section 223 of the Indian Penal Code cannot

sustain.

Accordingly, the instant revision petition is allowed.

Conviction of the petitioner for offence punishable under Section

223 of the Indian Penal Code as also order of sentence is set

aside.

This Court had extended in favour of the petitioner the

concession of suspension of sentence during pendency of the

revision petition vide order dated 20.7.2012. The conviction of

the petitioner itself having been set aside, the petitioner shall

stand discharged from the liability of the bail bonds that he had

furnished.

Revision petition allowed.