U.C Dhyani, J. (Oral)
1. Accused-appellants were convicted by the trial court for the offence under Section 223 IPC, vide judgment and order dated 24.12.2014 They were directed to undergo three months simple imprisonment and a fine of Rs. 500/- each. Aggrieved against the same, present criminal appeal has been preferred by them.
2. An FIR was lodged by the appellant no. 1-Head Constable 41 A.P Puran Singh himself on 12.08.2005 enumerating the facts contained therein that when the police constables were escorting the accused Gulzar Khan, they fell asleep on way from Haldwani to Dehradun in the train. When the police personnel escorting the accused Gulzar Khan woke up, they found that the said accused had escaped alongwith handcuffs. A search was made in the railway compartment, but in vain. Accused was not traceable. He had escaped from custody of police personnel, i.e, present appellants. Five prosecution witnesses, namely PW1 Dr. K.K Tamta, PW2 Constable Manish Panthri, PW3 Head Constable Jaipal Singh, PW4 SI N.B Bhatt and PW5 SI Rajendra Singh were examined on behalf of the prosecution. The details of their evidence have been given by learned trial court in the judgment under challenge. This Court need not repeat those facts for the sake of brevity. There is no infirmity in the impugned judgment so far as the conviction of the appellants for the offence punishable under Section 223 IPC is concerned. The conviction of the appellants under Section 223 IPC is, therefore, affirmed. The evidence tendered by the prosecution has been appropriately dealt with by the trial court. There is nothing on record to upset the said finding of the trial court.
3. Learned counsel for the appellants confined her prayer only to the extent that since the appellants are not previous convicts, therefore, they should be granted benefit of Section 4 of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act). It is the sole contention of learned counsel for the appellants that the nature of offence proved against the appellants is not such as to warrant sentence of imprisonment and fine against them. It was not a deliberate act on the part of the appellants although it is true that the accused Gulzar Khan escaped from their custody when the police personnel fell asleep in the railway compartment. It has also been informed by learned senior counsel for the appellants that the said accused Gulzar Khan has already been killed in police encounter subsequent thereto. Considering the facts of the case, as also the quantum of sentence awarded by the trial court, the letter and spirit of the Act, coupled with the attenuating circumstances, this Court is of the opinion that the accused-appellants should be granted benefit of Section 4 of the Act in the interest of justice.
4. Thus, instead of sentencing the appellants at once and sending them to prison, it is directed that they shall be released on probation on their entering into bonds with two sureties in the like amount to the satisfaction of 1st Additional Sessions Judge, Haridwar, to appear and receive sentences when called upon during the period of one year and, in the meantime, to keep peace and be of good behaviour. The offenders (appellants herein) shall remain under the Supervision of District Probation Officer, Haridwar during such period, i.e one year. If the offenders are found to be violating any of the conditions made in the supervision order, they shall undergo sentence and pay fine, which was awarded by the trial court. Accused-appellants are directed to appear before the 1 Additional Sessions Judge, Haridwar on or before 23.01.2014 The amount of fine, which has been deposited by the appellants, shall be refunded to them as per law.
5. With the directions as above, criminal appeal is finally disposed of. The present criminal appeal has been heard and decided solely on the basis of the arguments advanced by learned senior counsel for the appellants and learned AGA, without calling upon the lower court record, on the former's request.
6. It will also be worthwhile to reproduce Section 12 of the Act Act hereinbelow:
“12. Removal of disqualification attaching to conviction. - Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.”
7. It is accordingly provided that the conviction of the appellants under Section 223 IPC, who have now been granted benefit of Section 4 of the Act by this Court, shall not suffer disqualification attaching to their conviction.