KALYAN DUTTA SHARMA, C.J. - (1.) S .B. Criminal Revision No. 84 of 1977 filed by Bhopal Singh and Bachhu Khan and S.B. Criminal Revision No. 36 of 1977 filed by Swaroop Singh do arise out of one and the same judgment of the learned Sessions Judge Balotra, dated January 11, 1977, whereby the appeals filed by the aforesaid three petitioners against their convictions and sentences under Section 223, I.P.C. were partly accepted in as much as their convictions were maintained, but they were released on probation of good conduct under Section 4 of the Probation of Offenders Act. As both these revision petitions are directed against one and the same judgment of the Sessions Judge and as common questions of law and facts do arise in both of then, they are disposed of together by a single order of mine.
(2.) THE prosecution case, in brief against the petitioners was that on October 8, 1973, the Idan accused was on undertrial prisoner in sub -Jail Balotra, as he was facing trial under Section 302, I.P.C. on that day Bachhu Khan was deputed to discharge the duties of lathi sentry while Bhopal Singh petitioner was deputed as a rifle sentry at the said sub jail. Swaroop Singh petitioner came to the sub -jail and told Bachhu Khan and Bhopal Singh, Petitioner, that Idan had been called for by the jailor for doing domestic work at this house as usual. Thereupon, Bhopal Singh petitioner opened the main gate of the sub -Jail and allowed Swaroop Singh petitioner to go inside and to open the lock put on the middle gate with the key in his possessions. Swaroop Singh then asked Bachhu Khan to bring Idan accused out of the barrack in which he was kept in confinement. Bachhu Khan opened the gate of the barrack in which Idan was confined and was taken out of it. Swaroop Singh took away Idan with him the Jailor's house where from Idan absconded and could not be arrested till October 15, 1973. On the facts mentioned above, all three petitioners were prosecuted under Section 225 - I.P.C. in the court of the Munsiff cum Judicial Magistrate. First class, Balotra. The learned Judicial Magistrate tried the petitioners for the aforesaid offence but found them guilty of the offence punishable under Section 223, I.P.C. only, he accordingly aqcuitted the petitioners of the charge punisable under Section 225 I.P.C. and convicted them undergo Section 223 I.P.C. and sentenced each of them to undergo simple imprisonment for a term of four weeks and to pay a fine of Rs. 400/ -, and in default of payment of fine to further suffer simple imprisonment for two weeks.
(3.) AGGRIEVED by their conviction and sentences the petitioners preferred appeals in the Court of the Sessions Judge, Balotra, who, while maintaining their conviction under Section 223, I.P.C., released them on probation of good conduct under Section 4 of the Probation of Offenders Act, The petitioners have moved this Court in revision. I have carefully perused the record and heard Mr. S.R. Singhvi and Mr. Calla for the petitioners and Mr. D.S. Shishodia, Public Prosecutor, for the State First I take up for discussion S.B. Criminal Revision No. 84 of 1977 filed by Bhopal Singh and Bachhu Khan. It has been contended on behalf of the petitioners that the prosecution could not prove that they were negligent in the performance of their duties and that the escape of Idan accused was due to their negligence. It was further urged that these two petitioners were labouring under a bonafide impression because the key of the lock of the middle gate was brought by Swaroop Singh from the Jailor's house and with it Swaroop Singh opened the middle gate of the Jail, facilitating thereby the exit of Idan. Mr. D.S. Shishodia, Public Prosecutor, on the other hand, concended that these two petitioners transferred the charge of Idan convict to Swaroop Singh in contravention of the jail rules, which were known to them and so they can safely be held to have suffered Idan to escape.;