Delhi District Court
State vs . Ravinder Singh on 18 December, 2007
IN THE COURT OF SH. S. K.GAUTAM :MM :DELHI
State Vs. Ravinder Singh
FIR No. 730/92
PS : NDLS
U/s. 223/224 IPC
JUDGMENT
a) The Sl. No. of the case : 843/03
b) Date of Institution : 27.06.20003
c) Name of the complainant : SI/RPF Riyaz Ahmad
d) The name & add. of accused : 1) Ct. Sajjad Ali,
PP RPF HNDIN, Delhi
(Proceedings against him
dropped vide order dated
30.05.1998 since he expired
11.05.1996)
2) Ct. Ravinder Singh,
PP RPF HNDIN, Delhi
R/o. House No. E122,
Samas Pur Road,
Pandav Nagar, Delhi - 110 092
e) Date of commission of
offence : 17.11.1992
f) Offence complained of : U/s. 223/224 IPC
g) Plea of accused : Pleaded not guilty
h) Date on which judgment
reserved : 18.12.2007
i) Final Order : Convicted
j) Date of Judgment : 18.12.2007
BRIEF STATEMENT OF REASONS FOR DECISION :
1. Briefly stated the facts as to dispose of the case in hand are that on 17.11.1992 in the area of PS NDLS accused Ravinder Singh and coaccused Ct. Sahzad Ali (who died during the course of Page No. 1 trial) of RPF were public servant and legally bound as such public servant to keep in confinement one accused Om Prakash, S/o. Nathu Ram who was charged with some offence and both accused suffered the escape of the said accused person, who escape from confinement and thus accused Ravinder Singh committed an offence punishable U/s. 223 IPC.
2. After completion of investigation the challan was put to the court of trial. The copy of challan and other documents were supplied to accused and a prima facie case was made out against accused. Accordingly on 26.07.1999 charge for offence punishable U/s. 223 IPC was framed out against accused to which accused pleaded not guilty and claimed trial.
3. Prosecution in all to prove its case cited as many as 6 witnesses in the list of witnesses and examined 4 witnesses. Before proceeding to any conclusion let we first analyse the testimony of prosecution witnesses.
4. PW1 Insp. R.D. Yadav testified that on 16.11.1992 he was posted as Insp. at Police Post RPF Nizamuddin Railway Station. On that day accused Om Prakash was arrested in Case Crime No. 10/92 U/s. 3 RP (UP) Act. And accused was kept in the duty room of that police post of RPF by hand cuffing under the custody of Ct. Sajjad Ali and supervision of Ct. Ravinder reporting and duty were the Page No. 2 same room. Beside this Ct. Sajjad Ali was also functioning as para santary and Ct. Ravinder as DD/Rojnamcha Writer. And the accused Om Prakash was under the supervision of both the constables. Both the constables were asleep on duty and at about 5.30 AM and the accused Om Prakash taking the benefit of the sleep of constables ran away from the reporting room and accused could not be apprehended and accused ran away from the reporting room RPF due to the negligence of the above said constables. He identify to the accused Ravinder present in the court.
In his cross examination by learned Defence Counsel PW 1 stated that the complaint for the registration of the case against the accused Ravinder and Sajjad Ali was sent by SI R.A. Siddiqui, RPF. He admitted that the disciplinary action was taken against both he constables/accused persons and were punished for their above said negligence as at the relevant time i.e. on 16.11.1992 RPF Police Post at Nizamuddin had no lockup Room hence the accused Om Prakash was kept in reporting room under supervision and. The accused Om Prakash was hand cuffed when custody of the Om Prakash was given to the accused persons. He had not seen accused Om Prakash hand cuffed and keeping him in reporting room at the time of arrest. He was not present at the RPF Police Post Nizamuddin
5. PW2 SI (Retd.) Shiv Raj Singh testified that on Page No. 3 17.11.1992 the complaint of SI/RPF R.A. Siddiqui was assigned to him, which is Ex. PW2/A, by the Insp. Jagmal Singh onw ihch he sent Rukka Ex. PW2/B for the registration of the case through Ct. Hem Raj which bear his signature at point A. During the course of investigation he prepared site plan Ex. PW2/C which bear his signature at point A and thereafter investigation was carried by SI Jile Singh.
6. PW3 HC Chander Dutt testified that on 16.11.1992 he was posted as HC at RPF Police Post Hazrat Nizamuddin and on that day he was on patrolling duty with SI RA Siddiqui. At the time of patrolling duty one person was coming from PWI office Hazrat Nizamuddin Railway Station whose name was revealed as Om Prakash and 10 pendrul clips were recovered from the possession of the accused Om Prakash and he was arrested under Crime Case No. 10/92 U/s. 3 RP (UP) Act. The disclosure of accused was recorded by IO in his presence and accused was kept in custody vide DD No. 28 dated 16.11.1992 and this DD entry was made in the rojnamcha of RPF. The custody of accused was given to Ct. Ravinder and Ct. Sajjad Ali and DD entry to this effect was made in the Rojnamcha vide No. 34 dated 16.11.1992 at RPF PP HNDIN. Accused Om Prakash ran away from the custody of Ct. Sajjad Ali and Ct. Ravinder. Due to their negligence accused Om Prakash kept in the reporting room at Page No. 4 PP RPF and he was hand cuffed and was in the custody of both the constables mentioned above. He identified the accused Ravinder in the court.
In his cross examination PW3 stated that accused Om Prakash was arrested in afternoon. He voluntarily stated that he could not tell exact time without seeing the record. He had not put the accused Om Prakash handcuffed. IO might have ordered his subordinate officer to keep the accused hand cuffed. There were doors in reporting room where the accused Om Prakash was kept under custody. Accused was kept under hand cuffed which was tied with a bench lying in the reporting room. Accused Ravinder was given custody of Om Parkash in addition to work Rojnamcha. He could not say whether any other police official was also present beside Ct. Ravinder and Ct. Sajjad Ali. Case property recovered from the Om Prakash was kept in the Malkhana.
7. PW4 Insp. R.A. Sidiqui testified that on 16.11.1992 accused Om Parkash was arrested by them u/s 3 RP(UP) vide case No. 10/92 and he was in handcuff with the bench. Ct. Sajad Ali and Ct. Ravinder Singh were deputed as Thana Santri and also to secure the accused. On 17.11.1992 at 5.30 to 5.45 am the aforesaid accused escaped from the custody. He sent the information to SHO GRP Nizammuddin. His written complaint is Ex. PW2/A bearing his Page No. 5 signatures at point X. In his cross examination by learned Defence Counsel PW 4 admitted that at the time of incident there was no lock up at RPF post. When they brought the accused Om Parkash at RPF post four / five police personnel were present there. He did not put handcuff to the accused Om Parkash. He did not remember the exact time at which they brought the accused at RPF post. He denied the suggestion that in normal condition the hands can come out of the handcuff. He did not remember the name of that police personnel who were present at RPF post on that day. He admitted that at the place where police post situated there were two exit gates. He further admitted that on 17.11.1992 in morning time he came to know the fact that Ct. Sajjad and Ct. Ravinder Singh were on duty on that day from official record. He did not remember the exact time when they handedover the absconding accused Om Parkash to the IO.
8. Thereafter no other PW came forward to depose against accused as such PE was closed. On 11.07.2007 statement of accused U/s. 313 Cr. P.C. was recorded in which accused denied each and every incriminating evidence led by the prosecution and stated himself to be innocent.
9. I have heard the submissions of the learned APP for State Page No. 6 and the Counsel for the accused and carefully gone through the material on record.
Learned APP for State has submitted that prosecution has proved its case against the accused beyond a shadow of doubt. Prosecution has cited 5 witnesses in the list of witnesses and out of them 4 witnesses are examined. The testimony of all 4 witnesses is believable, corroborative and trustworthy. The PW who has left to be examined is Duty Officer who is a formal witness as the Investigating Officer Insp. R.A. Siddiqui who is examined as PW4 has proved the complaint Ex. PW2/A on the basis of which present FIR was registered against accused as such the FIR is also assumed to be a proved document. The Counsel for the accused has not produced any iota of evidence to disbelieve the prosecution story and rather mislead the by pointing out minor contradictions here and there, therefore, accused is liable to be convicted and punished in accordance with law.
On the other hand learned Defence Counsel has submitted that a departmental enquiry was conducted against the accused wherein it has been observed that there is no lockup at Nizamuddin RPF Post. The culprit Om Prakash was kept in the reporting room in handcuff condition and custody of Om Prakash was given to accused Ct. Ravinder Singh in addition to the work of Page No. 7 Rojnamcha. The case properties were also lying in the Malkhana. Ct. Sajjad Ali was also there to keep watch on the culprit Om Prakash who was tied with the bench lying in the reporting room. In the police station there was two exit gates. Apart from the accused Ct. Ravinder Singh another accused Ct. Sajjad Ali was also on duty. It is further submitted that the accused in his deposition under Section 313 Cr. P.C. has denied all evidence of the prosecution as false and incorrect and further stated that he is innocent and falsely implicated in this case, therefore, under the facts and circumstances of the case accused Ct. Ravinder Singh is liable to be acquitted.
10. In view of the submissions made and the facts and circumstances of the case I am of the view that the accused Ct. Sajjad Ali (since deceased) and Ct. Ravidner Singh of RPF have been booked for the offence punishable U/s. 223 IPC which states as under: "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."
Page No. 8
11. "Where constables escorting a prisoner from one place to another negligently allowed the prisoner to escape en route it was held that the prisoner was in confinement at the time of escape and that the constable were guilty under this section." 1891 Pun Re (Cr.) No. 2, p. 3 (4, 8) (FB).
12. As per Judicial warrant the accused Dharamvir was in the lawful custody of the accused Goverdhan. "A prisoner cannot be said to have escaped from confinement until he has regained liberty. The escape from lawful custody contemplated by this section is an escape from lawful custody. Where custody is not a lawful one, a public servant who suffers the prisoner to escape from such unlawful custody does not commit any offence under this Section. (1907) 5 Cri LJ 277 (278) (SB) (All)
13. "Before a man can be convicted under this section it must be shown,l not only that he was guilty of negligence but that the escape was, at least, the natural and probable consequence of his negligence. It must be shown that the escape was directly due to the negligence. IF the escape was only remotely connected with the negligence, there can be no conviction under this section". AIR 1918 All 282 (283) : 19 Cri LJ 78 (SB).
14. "Before the Court can decide the question of negligence, it must find out what the duties of the accused were and unless they are Page No. 9 known exactly, it is not possible to find whether the accused was negligent in the performance of his duties and whether the escape of the prisoners was due to the negligence." "Where the prisoners escape during the watch of the accused, it is, prima facie, evidence of his negligence and he must satisfactorily establish that he took all reasonable care in performing duty. AIR 1951 Kutch 89 (90) : 1952 Cri LJ 22 (SB).
15. "Where a person delegates to another a duty which involves exercise of special skill and care and which is founded on personal confidence, he takes upon himself the responsibility for the consequences if the deputy does not properly perform the duty, he held guilty." (1911) 16 Mys CCR No. 207, p. 1234 (1238) (DB).
16. In the facts and circumstances of the present case as well as the material on record and the spirit of the provisions of Section 223 IPC which states that ".......negligently suffers such person to escape from confinement......" here in this case two constables were deputed to escort culprit Om Prakash in Police Post who was admittedly in a handcuff condition and tied with the bench lying at Police Post. In my opinion despite taking so much safety measures the culprit has been escaped which is certainly tantamount to dereliction from duty and gross negligent act on the part of the police officials who were on duty and whose specific duty was to escort the Page No. 10 culprit Om Prakash in custody till he was produced before the court concerned. PW1 Insp. R.D. Yadav has specifically stated in his examination in chief that "..... on 16.11.1992 I was posted as Insp. at Police Post RPF Nizamuddin Railway Station. On that day accused Om Prakash was arrested in Case Crime No. 10/92 U/s. 3 RP (UP) Act. And accused was kept in the duty room of that police post of RPF by hand cuffing under the custody of Ct. Sajjad Ali and supervision of Ct. Ravinder reporting and duty were the same room. Beside this Ct. Sajjad Ali was also functioning as para santary and Ct. Ravinder as DD/Rojnamcha Writer. And the accused Om Prakash was under the supervision of both the constables. Both the constables were asleep on duty and at about 5.30 AM and the accused Om Prakash taking the benefit of the sleeping of accused person ran away from the reporting room and accused Om Prakash could not be apprehended and accused ran away from the reporting room of RPF due to the negligence of the above said constables". He also identified the accused person in the court. With this respect PW 1 was cross examined but the learned Defence Counsel has not suggested anything with respect to the story as made by PW1 alleging therein that the accused persons were sleeping while on duty resulting that the culprit has ran away. Had the accused persons been more vigilant and not sleeping on duty, the culprit Om Prakash Page No. 11 would not have escaped from their custody. Since the accused persons had been given additional charge of escorting the culprit Om Prakash which was their fundamental duty and they were legally bound to act accordingly. It is really strange that custody of culprit i.e. Om Prakash was given to two police officials i.e. present accused persons and the said culprit was also put in handcuff condition and tied with the bench lying in the reporting room as such all these safety measures were taken, despite that accused was succeeded in escaping from the custody of accused persons and that has happened only because accused persons were sleeping on duty, which is certainly tantamount to negligence and dereliction from their lawful duty.
It is further that the testimony of PW1 has also been corroborated by PW3 HC Chander Dutt who has also stated in his examinationinchief that "......Accused Om Prakash ran away from the custody of Ct. Sajjad Ali and Ct. Ravinder. Due to their negligence accused Om Prakash kept in the reporting room at PP RPF and he was hand cuffed and was in the custody of both the constables mentioned above....". PW3 also identified the accused Ravinder Singh in the court.
One of the contentions raised by the learned Defence Counsel that there were two exit gates in the reporting room, in that Page No. 12 event accused persons ought to have more vigilant and sincere to ensure the safe custody of culprit Om Prakash. PW4 Insp. R.A. Siddiqui also corroborated the testimony of PW1 and 3 while stating that accused Om Prakash was in the custody of Ct. Sajjad Ali and Ct. Ravinder Singh and in the cross examination of PW4 nothing material has came out which can give benefit to the accused. Accused during his statement recorded U/s. 313 Cr. P.C. has simply denied the prosecution evidence and contended that he is innocent and falsely implicated in this case. It has not been digested to my mind why the prosecution witnesses have falsely deposed against accused and why accused has been falsely implicated in this case. Accused has failed to bring on record or prove any motive of his falsely implication or any enmity against the prosecution witnesses or to dispute the testimony of prosecution witnesses. Since the accused has made suggestions in the depositions of the witnesses as well as in his statement recorded U/s. 313 Cr. P.C. that he is innocent and falsely implicated in this case, accused ought to have proved his contention either by oral or documentary proof. To this effect I reply upon Section 103 of Indian Evidence Act which reads as under : " 103 Burden of proof as to particular fact:-
The burden of prof as to any particular fact lies on the person who wishes the Court to believe in its existence, unless it is Page No. 13 provided by any law that the prof of that fact shall lie on any particular person.
Illustration
(a) A prosecutes B for theft, and wishes the Court to believe that B admitted the theft to C. A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it."
Further I also rely upon Section 106 of Indian Evidence Act which provides as under : " 106. Burden of proving fact especially within knowledge :- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
I also rely upon the observations held in case titled as " Banshidhar Swain Vs. State of Orissa" 1987 Crl. L. J. 1819 :
(1987) 63 Cut LT 99 where it was observed that : " Absence of due care and caution expected of a public servants in discharge of his duties is sufficient to prove negligence."Page No. 14
11. In view of the aforesaid discussion and facts & circumstances of the case as well as citations mentioned above I come to the conclusion that prosecution successfully proved its case against the accused beyond reasonable doubt and accused Ct. Ravinder Singh is guilty for charge leveled against him in this case. Accordingly accused Ct. Ravinder Singh is hereby convicted for offence punishable U/s. 223 IPC.
ANNOUNCED IN THE OPEN S.K.GAUTAM COURT ON 18.12.2007. MM:DELHI. Page No. 15 FIR No. 730/92 PS : NDLS U/s. 223/224 IPC 18.12.2007 Present: APP for the State. Accused on bail. Arguments heard.
Vide separate judgment of today the accused Ct. Ravinder Singh, S/o. Manvir Singh is convicted the offence punishable U/s. 223 IPC.
Now put up for order on sentence on 19.12.2007.
(S.K. Gautam) MM/Delhi 18.12.2007 Page No. 16