Delhi District Court
State vs . Subhash Chand & Ors. on 31 January, 2019
IN THE COURT OF SH. ANUJ KUMAR SINGH
M.M.03 (SOUTH DISTRICT), SAKET NEW DELHI.
STATE Vs. SUBHASH CHAND & ORS.
FIR No : 220/2011
P.S. : Hauz Khas
U.S. : U/s. 223/224/34 IPC
JUDGMENT
a. Sl. No. of the case and : 02406R0191622012 on 27.07.2012. date of its institution b. Name of the complainant : Inspector Parveen Parkash Karanwal, Reserve Inspector, Police Line Distt.
Ghaziabad, UP.
c. Date of commission of
offence : 19.06.2011
d. Name of the accused : 1. Ashok Yadav @ Pahalwan
S/o Sh. Jai Prakash,
R/o Kh. No. 77, Kavi Nagar, Mansoori,
Ghaziabad, UP.
(Already pleaded guilty vide order dt.
24.02.2018 & convicted u/s. 224 IPC)
2. Manoj Kumar S/o Sh. Harinath Yadav,
R/o Village & PO : Sherpur Dhotari,
PS : Baresar, Distt. Ghazipur, UP.
(Acquitted u/s. 223/34 IPC)
3. Vijay Kumar S/o Sh. Mahipal Singh,
R/o H.No. 255, Pratap Nagar,Harsau,
Ghaziabad, UP.
(Acquitted u/s. 223/34 IPC)
4. Subhash Chand S/o Sh. Tika Ram,
R/o Village & PO : Jasoi,
Distt. Muzafar Nagar, UP.
(Acquitted u/s. 223/34 IPC)
5. Inder Bhan S/o Sh. Shri Ram,
R/o : Qtr no. 67, Police Line,
Ghaziabad, UP.
(Acquitted u/s. 223/34 IPC)
e. Offence complained of : U/s 223/224/34 IPC.
f. Plea of accused : Pleaded not guilty
g. Final arguments heard on : 05.01.2019
h. Final order : Accused no. 2 to 5 are
acquitted u/s. 223/34 IPC
i Date of such order : 31.01.2019
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. In brief the story of prosecution is that on 19.06.2011 at about 12.30PM at 1 st, A Ward, AIIMS Hospital, New Delhi, within the jurisdiction of PS Hauz Khas, accused no. 2 to 5 being public servant and were legally bound to keep in confinement to accused no. 1 who was charged with the offence u/s. 364/302/201 IPC vide FIR no. 178/1993 lodged in Ghaziabad, UP, negligently suffered the accused no. 1 Ashok Yadav to escape from confinement and thus accused no. 2 to 5 committed the offence punishable u/s 223/34 IPC and within my cognizance.
2. After completion of the investigation, the charge sheet was filed in the Court.Copies were supplied to accused. Thereafter a notice for offence u/s. 223/34 IPC was framed against the accused persons to which accused pleaded not guilty and claimed trial.
3. Record transpires that on 24.02.2018 accused Ashok Yadav pleaded guilty u/s 224 IPC and consequently he was convicted u/s 224 IPC.
4. In support of its case, prosecution examined four witnesses.
5. PW1 is Praveen Parkash Karanwal, Asstt. Commandant, 47 Battalion, PAC, Ghaziabad, UP., who deposed that "On 18.06.2011, one accused Ashok in ST No. 178/1993 which was pending in Ghaziabad Court, was brought in compliance of order dt. 17.6.2011 of Central Jail Superintendent, Ghaziabad to AIIMS Hospital for eye check up in the custody of HC Subhash, Ct. Inder Bhan, Ct. Vijay Singh and Ct. Manoj in a Govt vehicle Make TATA 407 along with Driver / Ct. Harbans Singh. On the same day, he was admitted in hospital and on the next date at about 1PM, I came to know that accused Ashok had absconded from the hospital. Thereafter, I made inquiries from the police officials from whose custody the accused Ashok had fled away. They said that accused had gone on pretext of going to bathroom and from there, accused Ashok fled away from the staircases adjacent to bathroom. Accused had fled due to the negligence of HC Subhash, Ct. Inder Bhan, Ct. Vijay Singh and Ct. Manoj. So, I made a complaint Ex PW1/A regarding the negligence of all the above mentioned police personnel in Hauz Khas Police Station. Investigation officer of the Hauz Khas Police Station seized two rifles along with 60 cartridges, two bandolian and one handcuff with key which was handed over to me vide memo Ex PW1/B bears my signature at point A and Ex PW1/C bearing my signature at point A respectively. Witness correctly identified the accused persons."
6. PW2 is HC Kamlesh who deposed that "On 19.06.2011, I was on emergency duty from 8.00 am to 8.00 pm alongiwth SI Nihal Singh. On receipt of DD no.11 A SI Nihal Singh, we reached at AIIMS Hospital, Eyes Department. At AIIMS Hospital we found four police personnels from UP police whose name were later revealed as Subhas, Vijay, Inder and one name I do not remember. Those persons are present in the court today (Correctly identified). On inquiry, it was revealed that one accused of another case has escaped from custody of the accused persons in the present case. Thereafter, SI Nihal Chand prepared a Tehrir and handed it over to me for registration of FIR. Thereafter, I came to the AIIMS Hospital after getting the FIR register alongwith original tehrir and copy of FIR."
7. PW3 is IO / Retd. SI Nihal Chand who deposed that "On 19.06.2011, I was posted at PS Hauz Khas as SI. On that day, I received DD no.11 and thereafter, I alongwith Ct. Kamlesh reached AIIMS Hospital, Eye Department and there we met the accused persons Subhash, Inderbhan, Manoj, Vijay Kumar. Thereafter, the SI Praveen Prakash Karanwal gave me a complaint. The same is already Ex. PW1/A. Thereafter, I prepared the rukka the same is Ex.PW3/A bearing my signature at point A and thereafter, I handed over the rukka to Ct. Kamlesh for registration of FIR. Thereafter, Ct. Kamlesh went to the PS and thereafter got the FIR registered and came back to the spot and handed over to me the copy of FIR and original rukka. Thereafter I prepared the site plan at the instance of the complainant same is Ex.PW3/B bearing my signature at point A. Thereafter, we took the accused persons to the PS and thereafter, the accused persons were interrogated and thereafter I arrested the accused persons. The arrest memo of accused Vijay Kumar is Ex.PW3/C bearing my signature at point A. The arrest memo of accused Subhash Chand is Ex.PW3/D bearing my signature at point A. The arrest memo of accused Manoj Kumar is Ex.PW3/E bearing my signature at point A. The arrest memo of accused Inderbhan is Ex.PW3/F bearing my signature at point A. I also conducted the personal search of the accused persons vide Ex.PW3/G to EX.PW3/J respectively all bearing my signature at point A. Thereafter, I released the accused persons on bail bond. Thereafter I recorded the statement of the witnesses. Thereafter, we search for the other accused Ashok Pehalwan however, he could not be traced. Thereafter, I prepared the charge sheet against the above four accused persons before the Hon'ble Court. I can not identify the accused persons present in the court today by name due to lapse of time however, I identify the accused persons by their face".
8. PW4 SI Vijender Singh Parihar who deposed that "In the year 2012, I was posted as SI at PS Kavi Nagar, Ghaziabad, UP. As per the orders of Court of Hon'ble ADJ7, Ghaziabad, UP. I had forfeited the property of accused Ashok Yadav @ Pehalwan. The list of property forfeited was obtained by IO of the present case from PS Masoori."
9. Record reveals that vide separate statement of accused recorded u/s. 294 CrPC, accused persons admitted the FIR(without contents) Ex A1, DD No. 69A(without contents) Ex A2 & DD No. 11A(without contents) Ex A3. Therefore the above mentioned documents were directed to be read in evidence without their formal proof u/s. 294 CrPC.
10. PE was ordered to be closed by the order of this court on 25.07.2018 and statement of accused persons were recorded u/s. 313 CrPC. Accused denied all the incriminating evidence put to them and they chose not to lead the defence evidence.
11. I have heard the Ld. APP for the State and ld defence counsel and also gone through the record carefully. While taking the case of accused Ashok Yadav, it is matter of record that accused Ashok Yadav already pleaded guilt on 24.02.2018.
12. While taking the case of other accused persons namely Subhash Chand, Manoj Kumar, Inder Bhan Singh and Vijay Kumar , they have been charged with offence u/s. 223 IPC.
13. Section 223 IPC runs as under :
Escape from confinement or custody negligently suffered by public servant. Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence 6[ 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.
14. In order to establish the charge u/s. 223 IPC, the following facts have to be established.
(1) Accused are public servant ;
(2) As such public servant, they were bound to keep in confinement any person ; (3) Such person was charged with or convicted of an offence or lawfully committed to the custody.
(4) The accused persons suffer such person to escape and (5) Escape was due to the negligence of the public servant.
15. In case of Banshidar Vs. 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) 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 as 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".
16. Being guided by aforesaid legal proposition , prosecution not only required to establish that the accused were Government servant , responsible for keeping , watch and vigil on the custody of the accused, but it is also required to be proved that because of their negligence that accused was able to escape from lawful detention. In the present case the fact that accused Ashok Yadav escaped from the negligence of the accused persons Subhash Chand, Manoj Kumar, Inder Bhan and Vijay Kumar has not been established. Accused Ashok Yadav escaped while he pretended to attend the washroom and from there he fled away from the staircase adjacent to washroom. I found logic in the contenton of the ld defence counsel that proper care and caution was applied by accused persons namely Subhash Chand, Manoj Kumar, Inder Bhan and Vijay Kumar and they were not supposed to go in the washroom with the accused Ashok Yadav. Further, prosecution has also failed to establish exact responsibility of the accused who was supposed to guard the accused Ashok Yadav in washroom.
17. In view of the above said discussions, accused Subhash Chand, Manoj Kumar, Inder Bhan and Vijay Kumar are acquitted u/s. 223 IPC.
18. File be consigned to record room after due compliance.
Digitally signed by ANUJ ANUJ KUMAR
KUMAR SINGH
Date: 2019.01.31
SINGH 20:43:42 +0530
Announced and dictated in (ANUJ KUMAR SINGH)
the open Court on 31.01.2019 MM(03)/South District
Saket / New Delhi