Orissa High Court
Banshidhar Swain vs State Of Orissa on 28 October, 1986
Equivalent citations: 1987CRILJ1819
ORDER K.P. Mohapatra, J.
1. The revision is against the order passed by the learned Sessions Judge, Sundargarh confirming the order of conviction and sentence of the petitioner under Section 223 of the Penal Code ('I.P.C for short).
2. The prosecution case in a nutshell is that the petitioner while serving as Police Constable No. 462 was entrusted with the duty of escorting accused Kamal Nandi for production in the court of the Judicial Magistrate, Panposh at Uditnagar on 28-1-1980. Accordingly he received the said accused from the court Hazat and was due to return after court-hours At about 5 P.M. it was noticed by the Court Sub-Inspector that although other under-trial prisoners had returned, the petitioner and accused Kamal Naadi had not returned. Therefore, a search was organised and sometime later the petitioner himself returned and made a station diary entry in the Plant-site Police Station, Uditnagar stating that accused Kamal Nandi had escaped from his custody. It is alleged that the petitioner took accused Kamal Nandi to a hotel at a considerable distance from the court premises and both of them entertained themselves with liquor and snacks and taking advantage of the situation accused Kamal Nandi escaped. Accused Kamal Nandi was rearrested on 8-7-1980. After investigation was over, charge-sheet was submitted against the petitioner for offences under Sections 222 and 223, I.P.C. and under Section 224, I.P.C. against accused Kamal Nandi. During trial the petitioner took the defence that although along with other constables he had escorted accused Kamal Nandi for production in the court of the Judicial Magistrate, Panposh at Uditnagar, he did not take him out of the court premises on the plea of taking water. A person assaulted him and forcibly snatched away accused Kamal Nandi from his custody.
3. The learned Assistant Sessions Judge who tried the petitioner and accused Kamal Nandi believed the prosecution case. While acquitting the petitioner of the offence under Section 222, he convicted him under Section 223, I.P.C. and sentenced him to suffer simple imprisonment for two years. He convicted accused Kamal Nandi under Section 224, I.P.C. and sentenced him to undergo an equal term of imprisonment. The petitioner appealed before the learned Sessions Judge, Sundargarh who, on a careful reappraisal of the evidence, facts and circumstances, recorded concurrent findings and upheld the order of conviction and sentence.
4. Mr. P K. Misra, learned Counsel appearing for the petitioner urged that the evidence of P.W, 5 on whose sole testimony the conviction has been based was unworthy of belief If his evidence is discarded as unreliable, the petitioner hi bound to be acquitted of the charge. Mr. D. P. Sahu, learned Standing Counsel, on the other hand, contended that both the courts of fact having found the evidence of P.W. 5 as worthy of credit, there is no justification for the court of revision to disbelieve his testimony. According to him, in exercise of the power of revision, when the findings recorded by the learned courts below are not per verse or otherwise unacceptable this Court should not interfere.
5. The following facts are admitted, proved and not disputed:
(i) the petitioner being constable No. 462 was entrusted with the duty to produce accused Kamal Nandi and other under-trial prisoners in the court of the Judicial Magistrate, Panposh at Uditnagar on 28-1-1980. The petitioner had kept accused Kamal Nandi in the court premises.
(ii) some other constables were also detailed for the said purpose.
(iii) After the Court hours were over the other constables brought back the other under-trial prisoners to the Court Hazat, but till 5 p.m. the petitioner did not bring back accused Kamal Nandi.
(iv) The petitioner made a station diary entry (Ext. 6) at the Plant-site Police Station, Uditnagar on the same date at 6.15 p.m. reporting that accused Kamal Nandi escaped from his custody by assaulting him with fist blows near Sarala market as soon as they got down from a Tempo. As a matter of fact, accused Kamal Nandi had escaped from custody and was rearrested on 8-7-1980.
6. 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
(v) The escape was due to the negligence of the public servant.
7. As already referred to above, the first three ingredients have been proved, admitted and not disputed. It is now to be considered whether the next two ingredients have been satisfied in the present case.
7A. The evidence of P.W. 5 is to the effect that he found both the petitioner and accused Kamal Nandi in a rickshaw on 28-1-1980 at 4 p.m in front of Nataraj Hotel. Accused Kamal Nandi was hand-cuffed and the petitioner was in police uniform and was holding the rope. Accused Kamal Nandi was known to him from before and asked him for a Joan of Rs. 100/-. h£ however gave him only Rs. 20/-. After payment, both of them went away in the rickshaw. The evidence of this witness though uncorroborated by any other evidence was believed by the learned trial Judge who had the advantage of recording his evidence and seeing his demeanour. The learned Sessions Judge, as the Court of fact, also believed his evidence. His evidence was placed during hearing and I had the advantage of considering the same. It is the settled-principle of law that the statement of a solitary witness on a particular fact, if convincing and true and is found to be worthy of credit, can be accepted in support of the prosecution case and against the accused. Only in suitable cases, due caution has to be exercised. It can never be the rule of law that the statement of a solitary witness regardless of his worth should as a matter of course be disbelieved. Having taken into consideration the reasonings which weighed with the learned Courts below and the evidence of P.W. 5, it is not possible to hold that the witness is unworthy of credit. The evidence of P.W. 5 thus shows that at about 4 p.m. on the date of occurrence the petitioner being entrusted with the custody of accused Kamal Nandi, an under-trial prisoner, was moving in, the bazaar instead of bringing him to the Court Hazat after production in Court was over and the accused had been further remanded to custody. This fact substantially finds place in the station diary entry (Ext. 6) made by the petitioner which was proved by P.W. 8. It was reported by the petitioner that accused Kamal Nandi escaped from his custody by assaulting him with fist blows near Sarala market as soon as they got down from a Tempo, As a result of assault he sustained an injury on his forehead. The petitioner being a public servant was not to move about in a market place along with an under-trial prisoner entrusted to his custody. It was his duty to produce the accused before the Court and then bring him back to the Court Hazat. But the petitioner perhaps wanted to make himself merry in the bazaar at the cost of the under-trial prisoner. Otherwise, there was no reason why he should have been moving in the bazaar when he should have been on duty either in the Court or the Court Hazat. In this connection it would not be irrelevant to make a passing reference to the evidence of the medical officer (P.W. 4) who on examination of the petitioner found the smell of liquor coming from his mouth. As he did not examine the blood and urine of the petitioner to find out traces of alcohol much reliance has not been placed on his report. Nevertheless, his report creates grave doubt about the conduct of the petitioner. He further found that there was a minor lacerated injury on the forehead of the petitioner. Although ordinarily a man will not inflict an injury on his own forehead yet, it was not unlikely that the petitioner finding himself in the predicament of an under-trial prisoner having escaped from his custody inflicted upon himself a minor injury to show his bona fides. Therefore, the evidence of the medical officer cannot be fully discarded. In view of the above facts proved, admitted and undisputed, the only reasonable conclusion that could be drawn and was rightly drawn by the learned Court below is that the petitioner on account of his negligence suffered accused Kamal Nandi to escape from his custody. 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. The conduct of the petitioner in this case was nothing short of negligence. Therefore, in my view, the conviction of the petitioner under Section 323, I.P.C. cannot be called in question. The petitioner belonged to a disciplined force. Far from exhibiting sense of duty as expected of him, he showed most careless and indisciplined conduct. Therefore, it is a fit case in which he should be visited with substantive sentence of imprisonment. In the facts and circumstances of the case, sentence of simple imprisonment for one year will serve the ends of justice.
8. In the result, the revision is dismissed subject to modification of sentence which is reduced to simple imprisonment for one year.