Decided on August 04,1952

STATE Appellant
KARNIDAN Respondents


Ranawat, J. - (1.)THIS is a Government appeal against the judgment of the Additional Sessions Judge, Gangapur, dated the 28th November 1949.
(2.)SHANKERDAN and Karnidan were arrested in a dacoity case under sec. 397 I. P. C. and they were prosecuted in the court of the Extra Magistrate, Sawai Madhopur. On the 29th of December 1948 they were taken from the judicial lock-up to the court and after the proceedings of their case had finished they were taken by Kanwarilal, a police constable, along with one Moti to the judicial lock-up. Both SHANKERDAN and Karnidan were jointly handcuffed. They both pretended to make water and the police constable allowed them to attend to the call of nature. After a while SHANKERDAN managed to take his hand out of the handcuff, leaving it on the hand of Karnidan and both of them managed to run away. Kanwarilal at once handed over the custody of Moti to Yasin Kharadi and he pursued the two accused. He also raised a hue and cry and several persons ran after them. After a short distance SHANKERDAN was caught by Bhonrilal and Ramnarain. Ramnarain is a police constable and Bhonrilal is a peon of the Court of the Deputy Commissioner, Sawai Madhopur. The same afternoon Karnidan was also arrested on the top of a nearby hill by Kushalsingh, Chiranji and others. Karnidan, Shanker Dan and Moti were prosecuted for an offence under sec. 224 I. P. C. but Moti was acquitted by the First Magistrate, whereas the other two accused were convicted under sec. 224 I. P. C. and they were sentenced to undergo two years' rigorous imprisonment each. On appeal, the learned Additional Sessions Judge, Gangapur, acquitted both SHANKERDAN and Karnidan on the ground that most of the prosecution witnesses were Government servants and the rest were under the influence of the police and also because of the fact that Kanwarilal, from whose custody the accused had escaped, had not been prosecuted for an offence under sec. 223 I. P. C.
An appeal against the judgment of the Additional Sessions Judge, Gangapur, has been filed on behalf of the Government in this court and it has been urged by the learned Government Advocate that the grounds on which the judgment of the lower appellate court is based do not justify the inference which have been taken into account by the learned lower court.

The prosecution in this case has examined in all 11 witnesses, Kanwarilal is the constable from whose custody both the accused escaped and Shankerdan was apprehended by Bhonrilal. The statement of Kanwarilal is that both the accused escaped from his custody while he was taking them from the court to the Judicial lock-up. He says that they pretended to make water and while sitting Shankerdan managed to take off the handcuff from his hand and both of them ran away. He pursued them both and Shankerdan was arrested in hot pursuit by Bhonrilal and Ramnarain. Bhonrilal and Ramnarain support this version and they say that having heard the cry of Kanwarilal they pursued the accused persons and caught Shankerdan in hot pursuit. Shankerdan also tried to throw stones at these persons but in spite of that they were successful in arresting him, Mt. Panni P. W. 5 lives in the same vicinity and she has stated that she saw both the accused running away and being pursued by Kanwarilal and others. Yasin, P. W. 2, has also fully supported the version given by Kanwarilal. He had come to the court that day in connection with some bail application and while he was standing there Kanwarilal requested him to take hold of Moti while he himself went in pursuit of the two accused. Kushal Singh P. W. 3 and Chiranji P. W. 4 have stated that they went in search of Karnidan the same afternoon and Chiranji saw the accused where he was hiding on the top of a hill. After some resistance Karnidan was apprehended by Chiranjilal and the party led by Kushal Singh. Mt. Panni and Yasin are not Government servants and they do not appear to be under the police influence. It was perhaps by mistake that the learned lower court took these persons to be under police influence. Yasin is a Kharadi and it does not appear how he could have been considered to be a person under the influence of the police. The learned counsel of the accused has urged that Mt. Panni is a Mini by caste and she should be considered to be under the police influence on this account. From the statement of Panni it does not appear that she is a member of a criminal tribe or that she was under police in- fluence. It is said against Chiranji that he is a Kanjar and he acted under the influence of the police in arresting Karnidan and also in giving evidence against the accused. There is nothing in the statement of Chiranji to suggest such an inference against him. Both the accused persons admit that they were in the lawful custody on the 29th of December 1948, when they are said to have escaped from it. Their explanation is that the police wanted to put influence on them to turn approvers in a dacoity case and when they refused to become approvers they were prosecuted for an offence under sec. 224 I. P. C They have not been able to produce any evidence in support of their statements. There is overwhelming evidence against them as has been discussed above which shows that while they were being led from the court to the judicial lockup and while they were in the lawful custody of Kanwarilal they managed to escape from such custody and Shankerdan was apprehended in hot pursuit on the spot, and Karnidan was arrested a little later by the party led by Kushal Singh. The reason given by the learned Additional Sessions Judge in rejecting the prosecution evidence does not appear to be sound. It has also been pointed out above that Panni, Yasin and Bhonri-lal are independent witnesses who could not have acted under the influence of the police. It may also be mentioned here that the testimony of a witness should be judged on its own merits and the court should not draw an adverse inference from the reason of his being a Government servant or in the employment of the police. There is no rule of presumption against a police officer that his testimony is to be regarded of little value. As regards the other ground, it may be noted that perhaps there was no want of negligence on the part of Kanwarilal and the authorities may not have thought it proper to prosecute him. The fact that Kanwarilal was not prosecuted for an offence under sec. 223 I. P. C. should not necessarily lead to an inference against the prosecution case. In our opinion the prosecution has established beyond any doubt that both the accused escaped from lawful custody and the convictions ordered by the trial court were therefore not improper. As regards the point of sentence we think two years' rigorous imprisonment is rather severe, and we would like to reduce it to one year's rigorous imprisonment each.

This appeal is allowed and the order of acquittal passed by the lower court is set aside and the convictions of Shankerdan and Karnidan under sec. 224 I. P. C. are restored. Their sentences of two year's rigorous imprisonment are reduced to one year's rigorous imprisonment each. The accused Karnidan and Shankardan shall be arrested and- sent to Jail to undergo the remaining terms of their sentences. .

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