Punjab-Haryana High Court
Chandigarh vs Harpal Singh on 3 July, 2013
Author: K.C.Puri
Bench: K.C.Puri
Verma Sunil
2013.10.28 14:19
Criminal Appeal No.793 SBA of 2000 1 I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court
Chandigarh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.793 SBA of 2000
Decided on 03.7.2013.
State of Punjab
...... Appellant
versus
Harpal Singh
...... Respondent
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
CORAM : HON'BLE MR.JUSTICE K.C.PURI
Present :- Shri S.S.Chandumajra, Senior DAG, Punjab for the appellant.
Shri A.P.S.Deol, Senior Advocate with
Shri Vishal Rattan Lamba, Advocate, for the respondent.
K.C.PURI, J.
Challenge in this appeal is the judgment dated 6.7.1999 passed by Shri M.M.Aggarwal, the then Additional Sessions Judge, Barnala vide which the accused now respondents have been acquitted for offence under section 223 of the Indian Penal Code ( in short - the IPC).
2. Briefly stated that the present respondents were put to trial in respect of FIR No.121 dated 8.7.1992 under Sections 223 and 224 of the Verma Sunil 2013.10.28 14:19 Criminal Appeal No.793 SBA of 2000 2 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh IPC Police Station Kot Barnala.
3. The case of the prosecution in brief is that on 8.7.1992 SI Ujjagar Singh along with other police official was present in Purana Bazar Barnala where Vinod Kumar, Deputy Superintendent Jail, Barnala gave an application No.303 dated 8.7.2003 addressed to SHO, PS City Barnala intimating the escaping of Lachhman Singh alias Labho son of Gurdial Singh resident of village Dhilwan, accused of FIR No.40 dated 12.5.1992 registered under Section 302 of the IPC and under trial Lila Singh son Teku resident of Maur in FIR No.15 dated 11.2.1992 under Sections 302/34 of the IPC and 25 of the Arms Act on 8.7.1992 at about 2.45p.m., from Sub Jail, Barnala. At that time Warders Sikender Singh, Harish Kumar, Sukhwinder Singh and Harpal Singh were on duty and convict and the under trail had escaped from the jail due to negligence of above said warders. On the basis of said application, FIR No.121 dated 8.7.1992 under Sections 223 and 224 of the IPC was registered. After investigation of the case, challan was presented under Sections 223 and 224 of the IPC against all the accused now respondents.
4. On appearance of the accused, copies of documents were supplied to the accused free of costs. Charge under Section 223 and 224 of the IPC were framed against the accused to which the accused pleaded not guilty and claimed trial.
5. Prosecution in order to prove the guilt of the accused examined PW-1 Ujjagar Singh Inspector, PW-2 Mangat Ram Kakkar, Office Superintendent, District Jail, Sangrur, PW-3 Roor Singh, Assistant Verma Sunil 2013.10.28 14:19 Criminal Appeal No.793 SBA of 2000 3 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh Superintendent District Jail, Sangrur, PW-4 Vinod Kumar Bhati, Deputy superintendent of Jail, PW-5 Pawan Kumar, Clerk Central Jail, Bathinda, PW-6 Ashok Kumar, Senior Clerk, Central Jail, Ferozepur and closed the evidence after tendering into evidence certain documents.
6. After closure of the prosecution evidence all the incriminating evidence were put to the accused, they admitted the factum of their duty but have stated that no accused has escaped during their duty hours. In defence, they have not led any evidence. The learned trial Court after appraisal of the evidence found the accused guilty under Sections 223 IPC and sentenced them to undergo imprisonment for six months and to pay a fine of Rs.200/-each and in default of payment of fine to further undergo imprisonment for fifteen days each.
7. Feeling dissatisfied with the judgment of conviction dated 22.3.1997, accused-respondents preferred the appeal before learned Sessions Judge, Barnala.
8. Learned Additional Sessions Judge, vide judgment dated 6.7.1999 acquitted the accused after giving them benefit of doubt. The said judgment of acquittal dated 6.7.1999 passed by Additional Sessions Judge, Barnala has been challenged in the present appeal.
9. Learned counsel for the appellant has submitted that both the accused Lachman Singh and Lucky were in judicial custody. They escaped on 8.7.1992 at 2.45p.m. during duty hours of the respondents. All the accused have admitted the factum that they were on duty on 8.7.1992 from 12.00noon to 3p.m. From the prosecution evidence, it is proved that Verma Sunil 2013.10.28 14:19 Criminal Appeal No.793 SBA of 2000 4 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh accused Lachman Singh and Lucky escaped from the jail at 2.45p.m. on 8.7.1992. So, the negligence of the respondents writ large, the trial Court after appreciating the evidence has rightly convicted the respondents under Sections 223 of the IPC. The learned Appellate Court has acquitted the accused on flimsy grounds. Mere fact that appellants were exonerated during the departmental inquiry is not a ground for their acquittal. So, prayer has been made for setting aside the judgment/order dated 6.7.1999 passed by learned Additional Sessions Judge, Barnala for acquiting all the accused under Section 223 of the IPC.
10. Counsel for the accused has supported the judgment of the learned Additional Sessions Judge and has submitted that where there are two views, the view in favour of the accused has to be taken into account. The Appellate Court can only interfere if the judgment of the trial Court/Appellate Court is perverse. The prosecution has failed to prove the fact that accused Lachhman Singh and Lucky escaped during the duty hours of respondents.
11. I have considered the submissions made by both the sides and have gone through the records of the case.
12. The learned trial Court convicted the accused/respondents by observing that Lachhman Singh and Lucky were in judicial custody and as such the onus is only upon the accused to disprove the said fact however the trial Court has ignored the basic principles of law that prosecution has to stand on its own legs.
13. No eye witness has stated that the above said accused Verma Sunil 2013.10.28 14:19 Criminal Appeal No.793 SBA of 2000 5 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh Lachhman Singh and Lucky have escaped in their presence. The prosecution is required to prove that the above said accused have escaped from the custody during the duty hours of the respondents. A register regarding counting is maintained and that accounting is done at 12noon and 3p.m. and that register has not been produced by the prosecution. The trial Court has observed that the said register has been withheld by the accused but that finding cannot be accepted. No case against the accused has been registered for misappropriating the said register. The said register is supposed to be in the custody of Jail authorities. Hon'ble Apex Court in authority M.C.Ali and another vs. State of Kerala reported in 2010 (4) SC 573 laid down the general principles regarding power of the appellate Court while dealing with the accused against order of acquittal which are reproduced as under :-
"If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court."
14. So, in the absence of the evidence on the file that Lachhman Singh and Lucky accused escaped during the duty hours of the accused/respondents herein, they cannot be convicted under Section 223 of the IPC. The evidence on the record reveals that Lachhman Singh accused has been transferred to District Jail, Bathinda at 10.15a.m. on 10.7.1992. If Lachhman Singh was transferred to Bathinda Jail, Bathinda as per register produced on the record, the accused/respondents cannot be held guilty for escape of Lachhman Singh.
15. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed.
Verma Sunil 2013.10.28 14:19 Criminal Appeal No.793 SBA of 2000 6 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh
16. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE July 03 , 2013 sv