Delhi District Court
State vs Rajesh Kumar Sharma on 27 June, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Rajesh Kumar etc.
FIR No. 3/2004
U/sec.: 223 IPC
PS: Dilshad Garden
Date of institution of the case: 04.10.2004
Date for final arguments: 11.06.2025
Date on which judgment is delivered: 27.06.2025
CNR No. DLNE-02-000173-2004
JUDGMENT
a) Cr. No. of the case : 463636/2015
b) Date of commission of the offence : 04.01.2004
c) Name of the complainant : Insp. Ram Prakash Yadav
d) Name of the accused and his parentage : 1) Rajesh Kumar Sharma (PO)
S/o Lt. Sh. Om Prakash
2) Ct. Sudarshan Lal
S/o Sh. Panchhi Lal
3) Ct. Pramod Kumar
S/o Sh. Inder Pal
4) Ct. Rajbir (Abated)
e) Offence complained of : Section 223 IPC
f) Offence charged of : Section 223 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 27.06.2025 Digitally
signed by
ISRA ISRADate:
ZAIDI
ZAIDI 2025.06.27
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FIR No.3/2004 1/11 State Vs. Rajesh Kumar etc.
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that on 04.01.2004, the custody of one UTP namely Rajesh was handed over to one Ct. Rajbir Singh for admission to IHBAS. The custody of Rajesh Kumar Sharma remained with Ct. Rajbir (abated), Ct. Sudarshan Lal and Ct. Pramod Kumar (herein after referred to as the accused persons) during his stay in IHBAS hospital. It is further alleged that they both negligently offered the accused Rajesh to escape from confinement. Thereafter, an FIR was registered under section 223/34 IPCagainst accused persons.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 223 IPC was filed before the court against the accused persons. The then Learned Magistrate took cognizance on 09.01.2006 and accused persons were summoned to face the trial. On their appearance in the Court, copies of documents, relied upon by the prosecution were supplied to them as per norms. Thereafter, vide order dated 26.04.2023 charge under sections 223 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 Retd. DSP Ram Prakash Yadav
2. PW2 Insp. Ram Kishore
3. PW3 Dr. Vipul Janardan
4. PW4 Sh. Jai Narayan Singh Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.06.27
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FIR No.3/2004 2/11 State Vs. Rajesh Kumar etc.
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5. PW5 Retd. ASI Prakashveer
6. PW6 Sh. Harvir Singh
Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW4/A Sanction u/s 197 Cr.PC to prosecute
the accused
2. Ex. PW5/A Arrest memo of accused Rajesh
Kumar Sharma
3. Ex. PW5/B Pointing out memo of accused
4. Ex. PW1/C Disclosure statement of accused
Rajesh
5. Mark-A & Mark-B Relevant documents from Surajpur Police Line
6. Ex. PW6/A Order of Police Office Commissionerate regarding destruction of records Statement of the Accused u/s 313 Cr.P.C
4. The accused persons u/s 313 Cr.P.C examined on 08.05.2025. The accused persons stated that they are innocent. They have been falsely implicated in the present case by the IO. The accused Rajesh absconded from the custody of the doctors. He never escaped from their custody. They were on duty on the day of incident. The doctors instructed them to wait outside till the medical assessment of the accused Rajesh. They were told by the clerk who was employed there that accused Rajesh had absconded. They searched for the accused Rajesh in the hospital and the park. They went to the police line and informed orally to the senior police officials. Thereafter, they were suspended and reinstated after ten days by the UP police.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:10:50 +0800 FIR No.3/2004 3/11 State Vs. Rajesh Kumar etc. Evidence of the Defence
5. No defence evidence was led by the accused persons despite granting them an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on 11.06.2025. Ld. Counsel for the accused submitted that the case against the accused is false and frivolous and has prayed that accused be acquitted of the offence charged. He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the accused. This court has heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused persons, the prosecution had to prove the following ingredients of the offence punishable u/s 223 IPC beyond reasonable doubt:
Section 223 IPC:-
"Section 223 IPC provide that "Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or 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 with fine, or with both."
8. The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:10:59 FIR No.3/2004 4/11 State Vs. Rajesh Kumar etc. +0800 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)."
9. The rule that every accused person is presumed innocent until he is proved guilty and that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt is fundamental to the system of justice practiced in this country and in several other countries. Indeed it is entrenched in the Constitution that every person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.
10. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
11. The prosecution is required to prove -
1) Whether accused persons had Rajesh in their lawful custody?
2) Whether Rajesh escaped due to any negligent act of accused persons
being public servant? Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.06.27
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FIR No.3/2004 5/11 State Vs. Rajesh Kumar etc.
3) Whether prosecution has adduced admissible and cogent evidence
beyond reasonable doubt?
12. PW1 deposed in his examination in chief that he was posted as Reserve Inspector in Police Line, Agra. On 27.12.2003, accused Rajesh Kumar Sharma was sent to IHBAS Hospital with three other police officers namely Sudarshan Lal, Ct.
Pramod and Ct. Rajbir by the order of the Court for treatment. On 05.01.2004 he was informed by Ct. Sudarshan Lal that Rajesh had fled from the hospital on 04.01.2004. He further deposed that Ct. Pramod and Ct. Rajbir left the hospital on 03.01.2004 in the evening and had not returned to the hospital since then. He further deposed in his examination in chief that rifle of Ct. Pramod was also with Ct. Sudarshan Lal with ten cartridges as informed to him by Ct. Sudarshan Lal. He could not identify the accused persons due to lapse of time. Even after the attention of the witness was drawn towards the accused, he failed to identify them. He testified in his cross-examination that he did not know when the police officers left with accused Rajesh he had left for Dasna Jail for IHBAS. He did not remember when he received call from Ct. Sudarshan Lal. He admitted in his cross-examination that he had not mentioned about the rifle in his complaint. He also admitted that he did not share the information in writing/any DD entry to any SSP at that time. He also admitted that conduct of Ct. Sudarshan Lal and Ct. Pramod was good prior to this case. He admitted that except FIR, no documents in this case were prepared in his presence. He also admitted that no hospital staff was inquired. He also admitted that he did not mention about his visit to the hospital in his complaint.
13. PW2 deposed in his examination in chief that on 05.01.2004 he was posted as SI in PS Dilshad Garden. He further deposed in his examination in chief that during investigation he tried to find absconded accused Rajesh. He also had given application in IHBAS to provide the details of his mental condition. On 08.01.2004 he received a report from the hospital that Rajesh is finding difficulty in Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 FIR No.3/2004 6/11 State Vs. Rajesh Kumar etc. 16:11:15 +0800 understanding his surrounding. He admitted in his cross-examination that he did not call Ct. Sudarshan Lal and Ct. Pramod to join the investigation. He also admitted that he never met any doctor or staff during his investigation.
14. PW3 deposed in his examination in chief that he came to depose on the direction of OICR, Dr. S.N. Sain Gupta and Dr. Anjay left the services and he was not aware about their whereabouts.
15. PW4 deposed in his examination in chief that as per section 486(4) UP police regulation Act sanction u/s 197 Cr.P.C. Ex. PW4/A to prosecute accused Sudarshan, Rajbeer and Pramod. PW4 testified in his cross examination that he checked the Case Dairy and the documents before giving sanction. PW5 deposed in his examination in chief that on 14.07.2004, he was posted at PS Dilshad Garden. He was assigned case file of the present F.I.R. He received relevant documents from IHBAS Hospital Dist. Line, Ld. ADJ and Dasna Jail. He further deposed that accused Rajesh Kumar was arrested. He further deposed that he had taken accused to IHBAS hospital where he fled away. He received document from Surajpur Police line mark A and Mark B. He testified in his cross examination that he had not attached the DD entry which was marked to him with the file. He admitted that he collected the medical document pertaining to the treatment of accused Rajesh. He did not remember date, months of the same. He also did not collect the admission and discharge card of the hospital of patient accused Rajesh. He remind the other suggestions put to him by the medical council. He admitted that he did not plan the site plan of the hospital. PW6 produced the order by Police Commissionerate, Gautam Budh Nagar regarding the destruction of record Ex. PW6/A.
16. The first requirement has been proved that accused persons were public servants which is proved by the sanction i.e. Ex.PW-4/A u/s 197 Cr.PC and section 486(4) UP Police Regulation Act.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:11:23 FIR No.3/2004 7/11 State Vs. Rajesh Kumar etc. +0800
17. PW1 deposed that on 05.01.2007 accused Sudarshan Lal informed him that accused Rajesh fled from the hospital on 04.01.2004. It is not clear if he orally informed him on by which mode he was informed regarding the same. The timings when the accused Rajesh had gone missing have not been specified. The prosecution examined PW1 as its key witness but no document depicting the official handing over custody to the accused persons was found on record. The prosecution failed to produce the original or secondary documentary proof of accused Rajesh's medical condition. No CCTV footage of IHBAS hospital was placed on record to corroborate the escape of accused Rajesh. PW1 was unable to identify any of the accused persons in present case.
18. The doctors who treated the accused Rajesh could have been material witnesses in the present case. The time of the incident has also not been specified. The fact of custody of accused Rajesh was handed over to the accused persons is itself not established through any official documentation. The prosecution has not brought on record any formal order or entry indicating the custody of Rajesh was handed over to accused persons at the time of his escape. There is a complete absence of supporting evidence such as hospital record, CCTV footage or testimony of hospital staff. IO did not take any crucial step in securing hospital CCTV footage or recording statement of hospital staff or the doctor. IO also failed to collect documentary proof of duty roster.
19. Section 223 IPC punishes a public servant who intentionally or negligently allows a person in custody to escape. In this case there is no evidence that accused persons allowed accused Rajesh to escape intentionally and the circumstances negate criminal negligence.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:11:30 +0800 FIR No.3/2004 8/11 State Vs. Rajesh Kumar etc.
20. The prosecution failed to prove causal connection to prove that accused persons facilitated the escape of Rajesh. It is pertinent to note that no witness saw Rajesh escape due to any act or omission by the accused persons. It cannot also be lost sight of the fact that as per the case of the prosecution Rajesh was undergoing treatment of mental illness making his behavior potentially erratic and unforeseeable. The nature of illness might have led to a sudden, unanticipated act of fleeing without negligence on part of accused persons. Moreover, PW2 testified that report was received from the hospital that Rajesh is finding difficulty to understand his surroundings.
21. There is no site plan or even the basic description of how or where the escape accused. The evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act 1872 but there is no site plan in the present case.
22. PW1 could not identify the accused, his testimony remains uncorroborated. Investigation appears to be gravelly flawed as crucial witnesses were not examined. PW5 deposed that he recorded the disclosure statement of accused Rajesh. Bare disclosure statement without discovery is inadmissible. As per Section 25 & 26 of the Indian Evidence Act, 1872 confessions made to a police officer or while in police custody are inadmissible unless they lead to recovery or discovery. The disclosure statement has no evidentiary value.
23. At this stage it is germane to mention section 27 of the Indian Evidence Act, 1872.
"Section 27 how much of information received from the accused may be proved- provided that, when any fact is deposed to as discovered in Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:11:40 FIR No.3/2004 9/11 State Vs. Rajesh Kumar etc. +0800 consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the facts thereby discovered may be proved.
In the case of Md. Inayatulla Vs. State of Maharashtra AIR 1976 SC483 it was held that for the application of section 27 of the IEA the statement must be split into its components and to separate the admissible portion. Only those components or portion which were the immediate cause of discovery would be relevant and rest must be rejected."
24. Disclosure statement cannot be admissible there is no recovery pursuant to the disclosure statement. Derivative use of custodial statement is not permissible in law. Disclosure statement is admissible only in evidence if something is recovered from the accused which is not within the knowledge of the police before recording the disclosure statement of the accused. Hence, the same becomes inadmissible in law.
25. The incident happened when many other independent were available. Not even one person who witnessed the incident was made a witness. There is no other independent public witness who could have supported the uncorroborated testimony of the complainant. No other public witness/independent witness i.e. hospital staff, workers, guards or the doctors who examined the accused Rajesh were not examined by the prosecution. In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which must go to the accused.
26. For the reasons outlined above, this Court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
27. Consequently, accused Sudarshan Lal and Pramod Kumar are acquitted in the present case for offence u/s 223 IPC.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.06.27 16:11:49 +0800 FIR No.3/2004 10/11 State Vs. Rajesh Kumar etc. File be consigned to record room after due compliance with direction to revive the file as and when accused Rajesh is apprehended or appears before the Court.
Announced in the open Court today.
This judgment contains 11 pages and each page bears my signature.
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.06.27
16:11:56
+0800
(Isra Zaidi)
JMFC-04/NE/KKD/Delhi
27.06.2025
FIR No.3/2004 11/11 State Vs. Rajesh Kumar etc.