State of Himachal Pradesh vs Harish Chander Adharmi

Surinder Singh, J.—The challenge in this appeal filed by the State is to the acquittal of the respondent passed by the learned Additional Sessions Judge (FTC), Una in Criminal Appeal No. 4/2004 (RBT No. 31/2004), decided on 17.5.2005 whereby the conviction and sentence passed by the learned trial Court under Sections 223, 224 read with Section 109 of the Indian Penal Code was set-aside. Heard and gone through the record.

The appellant, hereinafter to be referred as the accused faced trial for the offences alongwith other co-accused punishable under Sections 223, 224 read with Section 109 of the Indian Penal Code. The allegations against the accused were that he assisted and abetted the three jail inmates to escape from the Jail.

The prosecution story as emerges from the evidence on record is that the accused was an under-trial prisoner and other jail inmates namely, Balwinder Singh @ Punjabi was an under trial prisoner in FIR No. 35/2002 dated 11.1.2002 in a murder case, whereas Raj Kumar @ Raju was undergoing prosecution in FIR No. 45/02 dated 13.3.2002 for a theft case. Accused Sukhwinder Kumar was the third jail inmate undergoing trial for the offence u/s 380 of the Indian Penal Code in terms of FIR No. 105/2002. All were lodged in the same Jail.

On 9.6.2002, PW3 Kamaljit, Jail Warder of the Sub-Jail, Una informed Assistant Superintendent, Jail about missing of the accused aforesaid except Harish accused. In turn the police was informed and the statement Ext.PW1/A of PW1 Prabhat Chand, Assistant Superintendent, Jail was recorded, which culminated into the present FIR. Later escapees were apprehended. They gave demo to him the manner in which they had escaped by making a human bridge and the accused Harish had assisted them and they were not able to take Harish out.

During investigation, police took into possession Ext.PH, giving details of the incident given by Harish accused. After completing investigation, challan against the accused persons was filed for the offences aforesaid. When the matter was pending before the learned trial Court, Sukhwinder Singh accused had expired and at the end of trial, all the accused persons were held guilty and sentenced to undergo simple imprisonment for a period of two years and to pay a fine of `1,000/- each with default clause.

The accused had faced the trial for abetment. He on his conviction filed an appeal before the learned Additional Sessions Judge. On reappraisal of the evidence, the learned Additional Sessions Judge acquitted him on the ground that the only connecting evidence against him was the document Ext.PH alleged to have been given by him in writing whereby he had admitted abetment of the alleged offence. Further that Ext.PW1/D is neither statement u/s 27 of the Evidence Act nor any incriminating fact is alleged to have been recovered in pursuance thereof.

I have examined the record meticulously. Vide Ext.PH dated 9.6.2001, accused is stated to have given a writing as to how other jail inmates had escaped from the jail and what was his role. If this information was available with either PW3 Kamal Jit Jail Warder or PW1 Prabhat Chand, Assistant Superintendent, Jail, then in that event, its reference should have been made by him in his statement Ext.PW1/A which is the very foundation of FIR Ext.PW11/A. Further the FIR was registered on 20.6.2002, whereas, document aforesaid reflects the year 2001. Not only this, the alleged disclosure statement Ext.PW1/B is purported to be u/s 27 of the Indian Evidence Act, but it is nothing except details of event which allegedly took place, so there is no fact recovered as it was already known to PWs 1 and 3 above and the Police also already knew as to what had happened in the instant case, therefore, this statement recorded on 17.6.2002 is only a cover-up story. Further Ext.PH was not addressed to anyone, therefore, its existence on 9.6.2002 is itself in doubt.

Further, PW3 Kamaljit, Jail Warder only says about escape of other jail inmates having been informed to PW1 Prabhat Chand, Assistant Superintendent, Jail. He did not reveal anything about Ext.PH. The demo with respect to their escape was alleged to have been given by other accused persons after they were apprehended on 13.6.2002, which can not be made basis for holding the respondent/ accused guilty.

PW12 SI Ruldu Ram, Incharge of Police Post, Una stated that during investigation, Ext.PH was taken into possession from the accused vide memo Ext.PW1/D on 13.6.2002 from the possession of PW1 Prabhat Chand, Assistant Superintendent, Jail. If this document was already with Prabhat Chand, it should have been immediately hand over to the police, which is not done. This lapse also goes against its existence on 9.6.2002, thus it appears that the jail officials made the respondent a scapegoat and to use writing aforesaid as a defence against them because in FIR lodged by PW1 the negligence is also attributed to the jail staff on duty. Therefore, it appears to be a procured document.

For the aforesaid reasons, the learned trial Court holding respondent-accused guilty was rightly set-aside by the learned Additional Sessions Judge in appeal aforesaid, thus his acquittal requires no interference. The appeal is devoid of any merits, hence dismissed.

The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. Send down the records.