Bombay High Court
The State Of Mah.Thr.Pso Nagpur vs Shamsher Shaikh Ramzan Ali And Another on 19 August, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
1/11 202.Apeal.542.05.(Judg)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 542 OF 2005
The State of Maharashtra
through Police Station Officer,
Police Station, Sadar, Nagpur.
Tahsil & District Nagpur. ... APPELLANT
VERSUS
1. Shamsher Shaikh Ramzan Ali
Aged - Major, Occupation - Nil;
Resident at Hasanbag, Nagpur.
2. Bhaurao Bhakruji Lad
Aged - Major
Occupation - ASI
Resident at - Police Lines, Takli, Nagpur. ... RESPONDENTS
Mr. H. R. Dhumale, APP for Appellant - State.
None for the Respondents.
CORAM : MRS. SWAPNA JOSHI, J.
DATE : AUGUST 19, 2019
JUDGMENT
. This Appeal has been preferred by the State against the Judgment and Order dated 23rd June 2005 delivered by the learned ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 2/11 202.Apeal.542.05.(Judg) Judicial Magistrate First Class, Nagpur in Regular Criminal Case No. 133 of 1993, whereby the learned Judicial Magistrate First Class, Nagpur acquitted the Respondent No.1 - Original Accused No.1 Shamsher Ali (hereinafter be referred to as 'Accused No.1 for the sake of convenience) for the offence punishable under Section 224 of Indian Penal Code and Respondent No.2 - Original Accused No.5 ASI Bhaurao Bhakaruji Lad (hereinafter be referred to as 'Accused No.5 for the sake of convenience) was acquitted for the offenc epunishable under Sections 221 and 222(c) of Indian Penal Code.
2. The prosecution case in brief is that, on 23rd July 1990 at about 10.45 to 16.00 hours at Nyay Mandir District and Sessions Court, Nagpur Accused No.1 - Shamsher Ali was facing trial for the offence punishable under Section 302 of Indian Penal Code and he was an under- trial prisoner detained in Central Prison, Nagpur. At the relevant time Accused No.5 - Bhaurao Lad was working as ASI.
3. It is alleged by the prosecution that on the relevant date Accused No.1 - Shamsher Ali, Accused No.4 - Vijay Shriram Dhenje, Accused No.6 - Bandu Shyamrao Ueke and some other accused in concern ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 3/11 202.Apeal.542.05.(Judg) with other cases were brought from the Central Prison, Nagpur by complainant ASI Krishnarao Mahadeorao Wankhede for producing them before their respective courts. Accused No.1 - Shamsher Ali was produced before the Court of 5th Additional Sessions Judge, Nagpur. He was given in the custody of Accused No.2 - Rampal and Accused No.4 - Vijay Shriram Dhenje and Accused No.6 - Bandu Shyamrao Ueke were given in the custody of Accused No.3 - Prakash for production before the court. Accused No.2 - Rampal and Accused No. 3 - Prakash produced the Accused No.1 - Shemsher Ali, Accused No.4 - Vijay Shriram Dhenje and Accused No.6 - Bandu Shyamrao Ueke in their respective courts on 5 th floor of Nyay Mandir, Nagpur.
4. It is the case of the prosecution that Accused Nos. 2 - Rampal and Accused No.3 - Prakash took Accused No.1 - Shamsher Ali, Accused No.4 - Vijay Shriram Dhenje and Accused No.6 - Bandu Shyamrao Ueke behind Nyay Mandir Building and sat under Tamarind (Chinch) tree and Accused No.7 - Vijay Salam brought liquor and gave it to Accused Nos.1 to 6. Accused No.7 - Vijay Salam brought one mug and glasses from tea stall. Accused Nos.1 to 7 then consumed the liquor. Then Accused No.7 - Vijay Salam brought one auto rickshaw and Accused No.1 - Shamsher Ali ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 4/11 202.Apeal.542.05.(Judg) and Accused No.2 - Rampal sat in the said auto rickshaw. Thereafter they went to Continental Bear Bar. At about 4.00 p.m. they reached the house of Accused No.1 - Shamsher Ali at Hasan Bag. Accused No.2 - Rampal removed handcuff chain of Accused No.1 - Shamsher Ali and left him and came back to Nyay Mandir, District and Sessions Court, Nagpur with empty handcuff chain.
5. When Accused No.2 - Rampal reached the Nyay Mandir building, he saw complainant ASI Krishnarao Wankhede is enquiring from Accused No.5 - Bhaurao Lad about Accused No.1 - Shamsher Ali. It is alleged that Accused No.2 - Rampal and Accused No.5 - Bhaurao Lad were under the influence of liquor. Thereafter the complainant - Krishnarao informed to Reserved Police Inspector Dhote who came on the spot and took the accused persons to Sadar Police Station. The complainant then took other accused persons to the Central Prison and then lodged the complaint in the police station.
6. On the basis of the complaint lodged by the complainant - ASI Krishnarao, an offence was registered against Accused No.1 - Shamsher Ali and Accused No.2 - Rampal. During the course of ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 5/11 202.Apeal.542.05.(Judg) investigation, it was transpired that Accused No.7 - Vijay Salam had assisted the Accused No.1 - Shamsher Ali by providing auto rickshaw to escape from the premises of Nyay Mandir building. It was also revealed during the course of investigation that the Accused No.1 - Shamsher Ali was arrested at Allahabad (U.P.) on 2/8/1990.
7. Heard Mr. Dhumal, the learned APP for Appellant - State at length. None appears for the Respondent Nos.1 and 2. With the assistance of the learned APP, I have perused the relevant evidence, particularly the evidence of PW-1 ASI Krishnarao Wankhede and evidence of PW-8 Vinayak Hiwre, the Investigating Officer.
8. Evidence of PW-1 Krishnarao shows that on the date of incident he was working as Incharge of Sessions Court. Along with him one ASI, seven Head Constable, seventeen Sipahi and one Lady Police Constable were working with him. Accused No.5 - Bhaurao Lad was with him as ASI. At about 11.00 a.m. they reached the Sessions Court along with all accused persons. They were sitting along with all accused persons in the police guard room, as the lock of lock-up room was not repaired. He was standing on the main gate of the room. Accused No.5 - Bhaurao Lad ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 6/11 202.Apeal.542.05.(Judg) sent all the accused persons to respective courts along with staff. Only three accused remained to be handed over. Accused No.5 - Bhaurao Lad gave the possession of Accused No.1 - Shamsher Ali to Sipahi Rampal and two other accused were given in possession of Sipahi Prakash. PW-1 Krishnarao was at police guard room.
9. At about 4.00 p.m. Head Constable B. No. 731 informed him that Accused No.1 - Shamsher Ali absconded from the court and the accused in the custody of Sipahi Prakash were under the under the influence of liquor. Then PW-1 Krishnarao brought Sipahi Prakash and two accused in his custody on the ground floor of the court. After five minutes Accused No.5 - ASI Bhaurao Lad also came to ground floor. He was abusing and talking in filthy language. PW-1 Krishnarao found empty handcuffing chain with Sipahi Rampal. On making enquiry with Sipahi Rampal, who was also under the influence of liquor, he gave evasive replies. PW-1 Krishnarao then took all of them to the police station and produced before RPI Dhote. PW-1 Krishnarao then lodged his complaint (Exh.109).
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7/11 202.Apeal.542.05.(Judg)
10. The evidence of PW-1 Krishnarao shows that Sipahi Rampal along with two accused was in intoxicated condition. So also Accused No.5 - Bhaurao was not behaving properly. He also appeared to be under the influence of liquor.
11. As against this, the testimony of PW-8 Vinayak Hiwre, who is the Investigating Officer shows that on 23/7/1990 he recorded oral report of PW-1 Krishnarao. On the basis of it, he registered the offence. Said report was that Accused No.5 - ASI Bhaurao Lad and other two constables allowed Accused No.1 - Shamsher Ali to run away. PW-8 Vinayak Hiwre categorically stated that after the registration of this offence, Accused No.1 - Shamsher Ali, Accused No.4 - Vijay Shriram Dhenje, Accused No.6 - Bandu Shyamrao Ueke, Accused No.2 - Constable Rampal and Constable Prakash were brought by RPI Dhote. RPI Dhote lodged his report with Sadar Police Station. According to PW-8 Vinayak Hiwre, all these accused were in intoxicated condition. They were sent for medical examination. PW-8 Vinayak Hiwre then conducted the further investigation.
12. On careful scrutiny of the testimony of these two witnesses, it is noticed that admittedly Accused No.1 Shamsher Ali was detained in jail ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 8/11 202.Apeal.542.05.(Judg) and facing trial for an offence punishable under Section 302 of Indian Penal Code. He was in legal custody. On 23/7/1990 in between 11.00 a.m. to 4.00 p.m. Accused No.1 - Shamsher Ali escaped from the custody of Nyay Mandir. Testimony of PW-1 Krishnarao shows that Accused No.1
- Shamsher Ali fled away from the custody. He came to know about the said fact from Head constable B. No. 731. In fact, it is the specific case of the prosecution that Accused No.1 - Shamsher Ali was re-arrested on 2/8/1990 from Allahabad (U.P.). However, PW-8 Vinayak Hiwre has categorically stated that on 23/7/1990 at about 20.00 hours Accused No.1
- Shamsher Ali was present before him along with other Accused in the police station. When he registered the offence on 23/7/1990, the Accused
- Shamsher Ali had not escaped from the custody. The said version of PW- 8 Vinayak Hiwre goes to the root of the prosecution case and creates a serious doubt about Accused No.1 - Shamsher Ali fleeing away from the premises of Nyay Mandir, Nagpur. There is glaring discrepancy in the testimony of PW-1 Krishnarao and PW-8 Vinayak in this regard.
13. The prosecution has failed to produce the production warrant of the Accused No.1 - Shamsher Ali dated 23/7/1990, in order to prove that Accused No.1- Shamsher Ali was produced in the court on that day ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 9/11 202.Apeal.542.05.(Judg) and he fled away from the court premises. Although it is the case of the prosecution that on 2/8/1990 Accused No.1 - Shamsher Ali was arrested from Allahabad (U.P.), however, the arrest panchanama is not produced by the prosecution on record. The testimony of PW-8 Vinayak, Investigating Officer shows that on 23/7/1990 Accused No.1 - Shamsher Ali was present before him, when he registered the offence and he did not escape from the custody. From the custody of Accused No.2 - Rampal handcuff chain in respect of Accused No.1 - Shamsher Ali was seized by the Police. However, the testimony of PW-1 Krishnarao shows that the handcuff chain is seized from the possession of PW-1 Krishnarao himself.
14. The seizure panchanama in respect of handcuff chain is not proved by the prosecution. There are two reports on record, one lodged by RPI Dhote (Exh.133) and another lodged by PW-1 Krishnarao (Exh.109). Report lodged by RPI Dhote is not proved by the prosecution by examining him. Testimony of RPI Dhote would have thrown light on the aspect that on 23/7/1990 at about 20.00 hours Accused No.1 - Shamsher Ali was produced at Sadar Police Station and he did not flee away from the custody. Even other concerned witnesses who saw Accused No.1 - Shamsher Ali fleeing away from the premises of Nyay Mandir, Nagpur are ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 10/11 202.Apeal.542.05.(Judg) not examined by the prosecution. In fact Head Constable B. No. 731 was the material witness. He is not examined by the prosecution. Thus, the entire case of the prosecution is under the shadow of doubt.
15. The allegations against Accused No.1 for the offence punishable under Section 224 of Indian Penal Code are not proved by the prosecution. It is not proved by the prosecution that the Accused No.1 - Shamsher Ali was in legal custody and intentionally he escaped from such custody. Even PW-8 Vinayak Hiwre, the Investigating Officer has stated that Accused No.1 - Shamsher Ali did not run away from the custody. Prosecution has not proved its case and has miserably failed to prove any of the allegations against the Accused No.1 - Shamsher Ali and Accused No.5 - Bhaurao Lad. The factum of fleeing away of Accused No.1 Shamsher Ali from the custody is itself an unproven fact. In view thereof, there is no role of Accused No.5 - ASI Bhaurao Lad to play. There is no question of Accused No.5 - Bhaurao Lad to facilitate the question of Accused No.1 - Shamsher Ali.
16. No case is made out by the Appellant - State to interfere with the Judgment and Order passed by the learned Judicial Magistrate First ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 ::: 11/11 202.Apeal.542.05.(Judg) Class, Nagpur. The Criminal Appeal is, therefore, liable to be dismissed and accordingly the same is dismissed.
[MRS. SWAPNA JOSHI, J.] Yadav VG ::: Uploaded on - 27/08/2019 ::: Downloaded on - 17/04/2020 06:56:30 :::