Dr. Ramavtar Goyal vs State of Madhya Pradesh and another

Being aggrieved by the judgment dated 02.02.2001 passed by 7th Additional Sessions Judge Jabalpur, in Criminal Appeal No.115/2000, whereby the judgment dated 03.08.2000 passed by the C.J.M. Jabalpur, in Criminal Case No.3631/1999 has been confirmed the conviction and sentence, this revision has been filed by the accused/applicant under Sections 397/401 of the Cr.P.C.

The applicant has been convicted for the offence under Section 222 of the IPC and sentenced to two years R.I. with fine of Rs.500/- by the trial Court. Appeal filed by the accused/applicant against the said judgment has been dismissed by 7th Additional Sessions Judge, Jabalpur holding that, at the time of incident, prisoner/co-accused Jamuna Prasad was in custody of the applicant and due to his negligence, Jamuna Prasad fled away by opening the handcuffs.

Learned Courts below found that the applicant was well known about the character of the prisoner. On earlier occasion also, co-accused/ (prisoner) Jamuna Prasad tried to abscond from the jail authority. The applicant was working as jail warden and he failed to explain satisfactorily that how the prisoner fled away. On the above grounds, learned Additional Sessions Judge has confirmed the conviction of the applicant and also maintained the sentence awarded by learned trial Court.

The applicant has filed the present revision challenging the judgment impugned on the grounds that he has not given any liberty to prisoner Jamuna Prasad to escape from his custody. Because of the darkness, Jamuna Prasad fled away. The applicant has never received any training for detention of the prisoner during treatment in the hospital. It is claimed by the applicant that it was necessary to depute the police personnel with the applicant as attendant according to jail manual particularly Rules 178 and 236 of Jail Manual. The applicant has also submitted that escape of prisoner Jamuna Prasad was not any violation of the legal obligation of the applicant from the statutory routine within the purview of Section 222 of the IPC. There is no procedure for allotment of such type of duties to the jail warden. Learned trial Court did not consider the evidence properly and came to the conclusion on the basis of conjecture and surmises, which was wholly illegal. Learned ADJ has also not considered the above facts. Hence, the applicant has prayed to set aside the impugned judgments passed by the Courts below and acquitted the applicant.

Heard learned counsel for the parties and perused the record.

Learned Panel Lawyer has contended that the judgments passed by the Courts below are proper and both the Courts below did not commit any error in convicting and sentencing the applicant.

It is not disputed that at the time of incident in the midnight of 2nd and 3rd September, 1999 the applicant was on duty as jail warden to look after the activities of Jamuna Prasad, who was in his custody during the treatment at Victoria Hospital, Jabalpur. Learned counsel for the applicant merely contended that the factors of offence punishable under Section 222 of the IPC have not been established by the evidence of prosecution witnesses. Even then, case may be considered under Section 223 of the IPC.

S.I. Ram Ratan Tiwari (PW-1) has stated that Jamuna Prasad is a convicted prisoner, suffering life imprisonment. During his treatment at Victoria Hospital, Jabalpur two other wardens were also deputed along with the applicant. In his cross-examination he has admitted that jail wardens are duty bound to bring the prisoner for treatment to the hospital. Thereafter, the police is responsible for the custody of aforesaid prisoner. Ram Ratan Tiwari (PW-1) deposed that Jamuna Prasad was admitted in Victoria Hospital on 20th August, 1999. Thereafter, regularly the jail authorities requested the R.I. Jabalpur for deputing the police guards. They wrote letters Exs.D/1 & D/2 but failed to avail any assistance from the Police Department. Then, jail wardens were deputed for the custody of prisoner at Victoria Hospital.

Learned counsel for the applicant has argued at length with regard to Rules, which were not followed by the jail authorities for custody of the prisoner at hospital. It may be fault caused with regard to non-fulfillment of such Rules, but such excuse cannot be acceptable. At the time of incident, another jail warden Ram Prasad was also deputed along with him.

As per prosecution version and testimony of Shripal (PW-5), there were four persons, admitted in the hospital and five persons were deputed for their custody in which three were police personnel. Shripal (PW-5) has clearly stated in his examination-in-chief that Jamuna Prasad wanted to go for answering the call of nature. Therefore, he opened handcuffs of the prisoner and took him to the washroom. As per the applicant, Jamuna Prasad wanted to drink water and when he turned to take water, co-accused Jamuna Prasad fled away from the washroom. Shripal (PW- 5) in para 4 of his cross-examination has admitted that prisoner Jamuna Prasad was not in condition to open his handcuffs himself. The applicant was bound for doing his job with care. When the applicant knew that on earlier occasion also, such type of occurrence has been committed by the prisoner Jamuna Prasad therefore, it is expected from the applicant to take more care. It shows that due to his negligence, prisoner Jamuna Prasad fled away from his custody.

Rajkumar Singh (PW-3) was also deputed at Victoria Hospital Jabalpur along with the applicant and he was deputed from 2:00 a.m. to 6:00 a.m. Whereas the applicant was deputed from 10:00 p.m to 2:00 a.m. when he reached to the Victoria hospital on his duty, then the applicant has informed about the incident to Raj Kumar Singh. He has stated that he did not find handcuffs in the hospital. The handcuffs and chain along with key were seized by the police thereafter. Suggestion was given by learned counsel for the applicant that washroom of the Victoria Hospital was very dirty. Therefore, after reaching the prisoners in the washroom, usually jail warden opened their handcuffs and waiting for them outside from some distance. It seems that in similar circumstance, Jamuna Prasad fled away from the washroom. This suggestion was admitted by the witness Rajkumar (PW-3) but this excuse cannot be acceptable. In every place the person who is in duty bound to observe the custody of prisoner and he should have been vigilant strictly.

Vijay Kumar Saretha (PW-4) found that the applicant was responsible for the incident. He seized the key of handcuff no.59 from the applicant by seizure memo Ex.P/11 and one chain was seized from the hospital. In para 2 of his cross-examination, he denied that aforesaid chain was affixed with the door of washroom. He has further admitted that handcuff was open from one side and close from another side, which shows that with the negligence of applicant, co-accused Jamuna Prasad fled away from the custody of jail warden.

The applicant was convicted for the offence under Section 222 of the IPC. An offence under Section 222 has following essential ingredients: (i) That the accused was a public servant, at the time of the commission of offence;

(ii) That the accused was legally bound to apprehend (or to keep in confinement) any person;

(iii) That such person must have been committed to lawful custody or under sentence awarded by a Court of Justice;

(iv) That the accused omitted to apprehend such person (or intentionally suffers such person to escape or intentionally aids such person in escaping to escape from such confinement:

(v) That the accused did so intentionally.

In accused statement under Section 313 of the Cr.P.C. in question no.4, the applicant has admitted that Jamuna Prasad fled away after redeeming the handcuff from the hands during his duty. But in his accused statement, the applicant has never taken any defence with regard to failure on part of his duty.

It is important that before a man can be convicted under the section for having negligently allowed a prisoner to escape, it must be shown not only that he was guilty of negligence, but that the escape was at least the natural probable consequence of his negligence. It must be shown that the escape was directly due to the negligence. The negligence can be proved by conduct, absence of due care and caution expected from a public servant in discharge of his duties, is sufficient to prove negligence. An offence under Section 223 of the IPC has three essential ingredients:- (i) The offender must be a public

(ii) He must be legally bound to keep in confinement a person charged with or convicted of an offence or lawfully committed to custody;

(iii) He must negligently suffer such person to escape.

The arguments of the counsel for the applicant that learned Courts below on the basis of conjectures and surmises held that the applicant guilty for escape of the co-accused Jamuna Prasad. As a statutory duty of the jail warden, the applicant was legally bound to keep the accused Jamuna Prasad in his custody in Victoria Hospital, which was violated negligently by the applicant.

In the present case, it is not proved that the applicant did so intentionally. In-fact the applicant being a public servant was legally bound to keep the co-accused in confinement, who was serving sentence imposed by the Court, for the offence under Sections 302 and 294 of the IPC. Because of the negligent of applicant suffers such person to escape from confinement. In such case, the offence comes within the purview of Section 223 of the IPC, not for offence under Section 222 of the IPC. The ingredients of Section 223 of the IPC, make it plain that an offence under section 223 is committed while acting or purporting to act in discharge of official duty negligently.

In the present case, the prosecution has properly proved the above ingredients. Looking to the facts and circumstances of the case particularly the fact that the applicant has faced the trial, appeal and this revision since last 16 years. Hence, this revision is partly allowed. The offence punishable under Section 223 of the IPC is minor offence than offence punishable under Section 222 of the IPC. Therefore, under the authority u/s 222(2) of the Cr.P.C., the applicant is convicted under Section 223 of the IPC, although he is not charged with it.

The conviction under Section 222 of the IPC is hereby set aside. The applicant is convicted for offence under Section 223 of the IPC. He was the govt. employee, facing trial since year 1999. Except this fault/mishap nothing is against him. Hence, it is not proper to send him jail now, the applicant is sentenced only for fine upto Rs.6,000/-. In lieu of fine, additional sentence of six month R.I. be imposed. If the applicant had already deposited the fine amount, the same shall be adjusted.

Copy of this order be sent to both the Courts below for information and compliance alongwith its record.