Delhi District Court
State vs . : Tinku Rai Etc on 29 January, 2008
1
IN THE COURT OF SH. SHAILENDER MALIK :
METROPOLITAN MEGISTRATE
KARKARDOOM COURTS : DELHI
State Vs. : Tinku Rai Etc
FIR No. : 415/06
U/s : 223/224/34 IPC
PS : Nand Nagri
JUDGEMENT
1 Sl. No. of the case : 202/06
2 Date of commission of offence : 12/05/06 3 Date of institution of the case : 14.07.06 4 Name of the complainant : SI Rajender Singh, DP
5 Name of accused, parentage : 1. Tinku Rai s/o Lakhpat Rai & Address 2. Ram Prakash s/o
3. Ram Narayan s/o 6 Offence complained of or : 223/224/34 IPC proved 7 Plea of the accused : Pleaded not guilty 8 Date of reserve for order : 29.01.08 9 Final order : Accused Tinku Rai Convicted Accused Ram Narayan and Ram Prakash Acquitted 10 Date of Judgement : 29.01.08 BRIEF REASONS FOR THE DECISION OF THE CASE : -
1. Accused Tinku Rai s/o Lakh Pat Rai has been sent up to face trial for offence u/s 224 IPC and accused Ram Narayan and Ram 2 Prakash were have been sent up to face trial for offence u/s 223/34 IPC.
2. Briefly the facts of the case are that on 14.05.06 SI R S of police line Aligarh came to the police station Chandni Chowk and gave the complaint to SHO to the effect that on 12.05.06 accused Ct. Ram Prakash and Ram Narayan had taken the accused Tinku Rai s/o Lakh Pat Rai in custody for producing him in the court of Special Railway Magistrate in connection with case no. 300/03. It is further stated in the complaint that above said police officials were also having one rifle and cartridges and handcuff with one rope. It is stated that on that day at about 4:20 PM Ct. Ram Narayan called on telephone no. 42790068 to R. L. Niranjan informing him that accused Tinku Rai who was in custody has escaped from the custody after cutting the rope thereafter those Ct. namely Ram Prakash and Ram Narayan did not return to police line Aligarh, therefore, as per directions of Mr. Niranjan, SI Rajender Singh came to Delhi and lodged the complaint. On the basis of which case F.I.R No. 186/06 for offence u/s 223/224/34 IPC was registered in police station Chandni Chowk.
3. The police officials of PS Chandni Chowk carried out some 3 investigation in case F.I.R No. 186/06 thereafter it transpired that since occurrence of escaping of accused Tinku Rai has actually taken place within the jurisdiction of PS Nand Nagri, therefore, as per the orders of the SHO further investigation of the matter was transferred to the PS, Nand Nagri and in respect of same incidence the F.I.R No. 415/06 was registered in PS, Nand Nagri regarding which investigation was carried out and upon completion of investigation charge sheet was filed in the court.
4. Accused Tinku Rai was charged vide order dated 04.08.06 for offence u/s 224 IPC whereas accused Ram Narayan and Ram Prakash were charged for offence 223/34 IPC to which all the accused did not plead guilty to the charge and claimed trial.
5. In order to substantiate the charge, prosecution has examined as many as twelve (12) witnesses. PW1 is Laxmi Devi who has testified that accused Tinku Rai has got married with her daughter. PW1 resiled from her statement given before the police and has testified that no such incidence has taken place in her residence.
PW1 was declared hostile and in her cross examination PW1 denied to have given the statement before the police that on 12.05.06 accused Tinku Rai was brought by two police officials to 4 meet his wife Deep Mala where from accused has absconded. Similarly PW2 Smt. Sadhna Verma who is sister of PW1 Laxmi Devi has resiled from her statement given before the police and thus was declared hostile. PW3 is Lakhpat Rai who is father of the accused Tinku Rai. PW3 also been declared hostile as he also resiled from his previous statement given before police. PW3 has testified that 3-4 police constables of PS Chandni Chowk came to his residence to enquire about his son and is in-laws house. PW3 states that he took them to the in laws of the Tinku Rai, accused was not present there.
6. PW4 is Ct. Kamal Singh who has testified that on 01.06.06 when he was posted at PS Nand Nagri he along with SI Har Prasad reached at house no. A-3/113, Nand Nagri where Smt. Laxmi Devi, Sadhna, Deep Mala met them and IO recorded their statement. PW5 is SI Raj Bir Singh who has testified that on 14.05.06 when he was posted at PS Chandni Chowk, SI Rajender Singh of U. P. police line, Aligarh came to the PS and gave the written complaint to SHO upon which SHO directed for registration of F.I.R No. 186/06. Thereafter investigation was handed over to him. PW5 further says that he along with other police officials reached SPM Marg and 5 during investigation he interrogated Shiv Shankar a watch vendor, Ajay Kumar and Dinesh Kumar STD Shop mobile and recorded their statement. PW5 further says that thereafter he enquired about father of the accused Tinku Rai and recorded his statement and Lakh Pat Rai (father of accused Tinku Rai) took the police party to Nand Nagri where PW5 stated to have interrogated Laxmi Devi, Smt. Sadhna etc. PW5 further says that tow pair of white sport shoes along with digital watch was handed over to him by Smt. Laxmi Devi (mother -in-law of accused Tinku Rai) which was stated to be belonging to the accused Tinku Rai who left them at the time of shifting from that place. That watch and sport shoes were identified by the vendor regarding which memo ExPW5/A was prepared. PW5 says that thereafter further investigation was carried out by the Police Station Nand Nagri. PW5 also identified that case property i.e. sport shoes and watch as EXP-1 and P-2.
7. PW6 is SI R. S. Yadav of Aligarh Police Line (U.P.) who has testified that on 12.05.06 when he was posted in police civil lines he handed over the custody of the accused Tinku Rai to accused Ct. Ram Prakash and Ct. Ram Narayan along with one rifle carried 6 on by each with handcuff for taking the accused Tinku Rai to Special Railway Board at Old Delhi Railway Station for hearing of his case. PW6 further says that at about 4:30 PM, Ct. Ram Narayan called RI R. L. Niranjan that accused Tinku Rai has escaped from the custody. Thereafter the PW6 stated to have been directed by RI R. L. Niranjan to go to Delhi and to verify the facts and thereafter on 14.05.06 PW6 reached Delhi and met with SHO of PS Chandni Chowk and upon his complaint ExPW6/A F.I.R was registered there.
8. PW7 is Ct. Bayant Kumar who also testifies on the same lines as PW5 SI Raj Bir Singh. PW8 is Ct. Rakesh Kumar who also deposed on the same line as PW7.
9. PW9 who proved the F.I.R of Police Station Nand Nagri as ExPW9/A and the endorsement as ExPW9/B.
10.PW10 is HC Devender Singh who proved the F.I.R no. 186/06 of PS, Chandni Chowk as ExPW10/A. PW11 is SI Har Prasad who has testified that on 01.06.06 when he was posed at PS Nand Nagri, F.I.R No. 415/06 was registered and he carried out the part of the investigation and recorded the statement u/s 161 Cr. P.C. of Ct. Kamal, Lakh Pat Rai, Laxmi and Sadhana and on 13.06.06 he went 7 to Aligarh where he came to know that accused Tinku Rai is in JC. PW11 further says that he moved the application for production warrant and accused was produced in court of Delhi on 28.06.06 where he was formally arrested and was again sent back to JC. PW11 further says that he also formally arrested the other accused namely Ct. Ram Narayan and Ct. Ram Prakash of UP Police who surrender before Delhi Court on 04.07.06. There arrest memo and personal search memo are ExPW11/B to E. PW11 also says that on 11.07.06 he went to PS, Chandni Chowk and seizure memo of shows and wrist watch were taken into possession vide ExPW11/G.
11.PW12 is HCP Devender Singh who has testified that he was posted as Line Moharar at Police Line District Aligarh and he testified that as per record vide entry no. 8 at serial no. 1 dated 12.05.06 Ct. Ram Narayan and Ct. Ram Prakash (accused) were entrusted with the custody of the accused Tinku Rai for producing him before Special Railway Magistrate. Said entry has been proved to be ExPW12/A.
12.In the course of trial an application on behalf of prosecution u/s 91 and 311 Cr. P.C. was moved for leading additional evidence to prove sanction as well as other necessary documents to show 8 that accused Tinku Rai was in the custody of other accused Ct. Ram Narayan and Ct. Ram Prakash who were to be produced before Delhi Court. Said application was allowed vide order dated 24.09.07 and as per supplementary challan PW12 was examined.
13.Upon completion all the evidence earlier statement of accused was recorded on 17.03.07 in terms of provision u/s 281/313 Cr. P.C. in which accused Ram Prakash and Ram Narayan while denying whole of the evidence has taken the plea that on 12.05.06 at 4:30 Pm when he was along with accused Tinku Rai and were returning from Railway Court and were going on in TSR towards Anand Vihar ISBT suddenly accused Tinku Rai along with handcuff jumped from the TSR near Koria Pul. Accused further states that they chased him but accused succeeded in running away. Accused have taken the plea that they are innocent. Accused Tinku Rai had taken the plea that he has been falsely implicated. In additional statement of accused recorded after recording the evidence of PW12, accused have taken the similar plea.
14.No evidence was led in defence.
15. I have heard the Ld. APP for the State and the counsel for the 9 accused. First of all while taking up the case of accused Tinku Rai. As stated above accused Tinku Rai has been charged for offence u/s 224 IPC. Section 224 IPC provides interalia that any person who escapes or attempt to escape from any custody in which he is lawfully detained for any offence with which he is charged or of which he has been convicted shall be punished. Thus prosecution is required to establish the ingredients of Section 224 IPC. Section 224, IPC has two distinct parts. The first relates to resistance to apprehension and the second part relates to escape from custody. In order to bring home the guilt of the accused under first part, the prosecution is to prove the following ingredients :-
(1) that the accused was charged or convicted; (2) that he offered resistance or obstruction to his apprehension; (3) that such resistance or obstruction was illegal; and (4) that the accused offered such resistance or obstruction illegally.
When the offence charged is that of escape or attempt to escape from custody, the prosecution is to prove the following :
(1) that the accused was taken into custody for commission of an offence;
(2) that such detention in custody was lawful; 10 (3) that the accused escaped from such custody or made an attempt to do so; and (4) that the accused did so intentionally.
So, the essential ingredients for the second part of Sec. 224, IPC are that the accused must have been detained in custody lawfully and that he escaped from such custody intentionally.
16.In the present case admittedly it has been proved from the evidence of PW12 HCP Devender Singh that accused Tinku Rai was in lawful custody and was handed over to Ct. Ram Narayan and Ct. Ram Prakash for taking him to Delhi to produce before Railway Magistrate on 12.05.06. This record has been proved as EXPW12/A. The evidence of the PW12 also got corroboration from the evidence of PW5 SI R. S. Yadav of Police Line Aligarh (U.P.). In this regard if we go through the evidence in totality, it would be evident that in fact there is no explanation as to why the accused Tinku Rai had escaped from the custody rather there is no defence at all taken in this regard or in other words it can safely be stated that accused is virtually admitted of his escaping from the custody, thus after meaningful reading of the evidence of the prosecution coupled with their cross examination, I find that 11 prosecution has been able to establish the ingredients of section 224 IPC as against the accused Tinku Rai.
17.While taking up the case of accused Ram Prakash and Ram Narayan who have been charged for offence u/s 223 IPC. Section 223 IPC says Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence for 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 fine or with both.
In order to establish the charge under S.223, I.P.C. the following facts have to be established : -
(i) The accused was a public servant
(ii) As such public servant he was bound to keep in confinement any person.
(iii) Such person was charged with or convicted of an offence or lawfully committed to custody,
(iv) The accused suffered such person to escape, and
(i) The escape was due to the negligence of the public servant.
In "Banshidhar v. State of Orissa"1987 CRI. L. J. 1819 it was observed as "The following facts should be proved for a charge under S.223 to succeed : (i) the accused was a public servant, (ii) 12 As such public servant he was bound to keep in confinement any person, (iii) such person was charged with or convicted of an offence or lawfully committed to custody, (iv) the accused suffered such person to escape and (v) The escape was due to the negligence of the public servant. Negligence can be proved by conduct. Absence of due care and caution expected of a public servant in discharge of his duties is sufficient to prove negligence. Where the constable escorting an under trial prisoner from court house took him to a market place where they had no business to go and the prisoner had escaped, the constable was held guilty under S.223 and belonging to a disciplined force it was a fit case for awarding substantive sentence of imprisonment.
18.Keeping in view the above legal proposition regarding Section 223 IPC there is no dispute regarding accused Ram Narayan and Ram Prakash being public servants. There is also no dispute that being police officials they were entrusted the custody of accused Tinku Rai for producing him before Railway Magistrate. There is also no dispute that they actually took the accused to the Delhi for producing before Ld Magistrate, the only point left to be considered for the purpose of charge u/s 223 IPC is to see whether 13 the accused Ram Narayan and Ram Prakash were negligent in their duty because of which accused Tinku Rai suffered the escape. If we appreciate the evidence in totality, there is no evidence for establishing the ingredients of the accused in escaping of the accused Tinku Rai. No doubt the custody of the accused was with these accused Ram Narayan and Ram Prakash but that by itself is not sufficient for establishing the charge u/s 223 IPC. Prosecution either by direct or indirect evidence is required to show that there has been intentionally negligence on the part of the public servant in escape of the accused Tinku Rai. Earlier during the investigation by the IO of PS Chandni Chowk, statement of mother-in-law, other relatives and wife of accused Tinku Rai were recorded to show that accused Tinku Rai had gone along with police officials to the house of his wife where he met his wife and from their he escaped. But this version put forth in the statement of PW1, 2 and 3 could not be established as PW1, 2 and 3 have denied any incidence having taken place in the house of Laxmi Devi even in their cross examination PW1, 2 and 3 have denied any incidence and thus nothing nothing could come out on the record showing that accused Ct. Ram Narayan and Ram 14 Prakash were in any way negligent in discharging their duties for escaping of accused Tinku Rai. Thus in totality the charge u/s 223 IPC has not been proved qua them. Hence they are discharge from the charge u/s 223 IPC and thus acquitted. Their B/B stand cancelled and S/B stand discharged.
19.Accused Tinku Rai is convicted for the offence u/s 223 IPC. Let he be heard on the point of sentence after lunch.
Announced in the open court on 29.01.08 (Shailender Malik) Metropolitan Magistrate Karkardooma Courts, Delhi 29.01.08