M.B. Sharma, J.
1. This Is a State appeal under Section 378 Gr. P.G. against the acquittal of the accused respondent Mangilal, a police constable, of the offence under Section 29, Police Act, 1961 ('the Act' hereafter).
2. Briefly stated the facts in brief are these: The accused respondent Mangilal son of Narain constable No. 507 was posted in police lines Jalore on April 27, 1972, The services of one Sub-Inspector, one head constable and four literate constables were required for coping wish the registration of refugers work at Barmer and the Deputy Inspector General of Police. Jodhpur, sent a message Ex. P3 to depute the said police personnel to Barmer immediately. The accused petitioner along with others was directed to proceed to Barmer by night train on April 27, 1972, but it is alleged that after uaving reached the railway station, the accused-respondent slipped away. One more constable could not proceed because of his illness and Head Constable Ridmalsingh PW 5 along with others proceeded on duty by the night train for Barmer. A reportt Ex. P2A was entered into general diary of police station Jalore on 28 4-74 at 9.30 a.m. that Mangilal accused respondent did net accompany Ridmalsingh and hat absented. After investigation a complaint under Section 29 of the Act was filed against the accused petition and the learned Magistrate, after trial, acquitted him.
3. It is contended by the learned Public Prosecutor that on the material on record, a clear case under Section 29 of tae Act was made out against the accused and the approach of the learned Magistrate was not correct. Section 29 of the Act is as follows,
29. Penalties for neglect of duty, etc-Every police officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by copetent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months or who, being absent on leave, shall fail, without reasonable cause, to report himself for duty on the expiration of such leave...shall be liable, on conviction before a Magistrate, to a penalty not exceeding three month's pay, or to imprisonment, with or without hard labour, for a period not excending three months, or to both
Under Section 29 of the Act extracted above, violation of duty or wilful breach or neglect of any lawful order made by a competent authority or withdrawal from the duties of his office without permission, is made punishable. Therefore, the question is, as to whether the accused petitioner wilfully did not obey the lawful order made by the competent authority to the effect that he should proceed to Barmer with the party he aded by Ridmalsingh PW 5 to cope with the registration of refugees work there.
4. It has been observed by the learned trial court that initially, the accused was ordered to go to Banner in the morning of 28-4-72 and thereafter, the order; were changed and he was asked to proceed on 22-4-72 by night train but the link of change of the order and the commucication thereof to the accused respondent is missing and therefore it cannot be said that the respondent wilfully disobeyed the orders. It is not disputed that the occused respondent was posted in police lines, Jalore on April 27, 1972. It has come in the statement of Bhawanisingh PW 4 who was posted as Havaldar Major on 27-4 72 that on receiving the order of Superintendent of Police party, which included the accused-respondent to go to Banner by night train on 27-4-72. He has further stated that after the receipt of the order Ex. P3 of Superintendent of Police, Jalore, he had called the respondent and had told him that he has to proceed to Banner by the night train along with others. No doubt, he had not obtained the signatures of the constables including the accused-respondent on Ex P 3 but there is t o reason to disbelieve his statement and has not come to a finding that the accused respondent was not deputed to go to Barmer. Ridmalsingh PW 5 is the Head Constable and he also states that he others and Mangilal accused respondents were told to proceed to Barmer and the orders to that effect were read over to them by Bhawanisiogh. He further states that the orders were to proceed to Barmer by night train and *he accused was also present at that time and also at the time of roll call in the police lines. Navlaram PW 6 was the Home Inspector at the relevant time in the office of the Superintendent of Police, Barmer. He stales that on 274-/2 the accused was ordered to proceed along with others to Barmer in connection with the duties relating to registration of refugees Even the accused in his statement under Section 342 Cr. P. C. (1898) has admitted that he was present in the police lines on 27-4-72 but all of a sudden he became ill and had consulted a doctor. He has examined witnesses in defence that to order was read over to him. In view of the evidence which shall be discussed presently, his statement cannot be relied upon. A lock at Ex, P1A, a copy of the entry No. 750 of the general diary dated 27-4-72 shows that when Ridmalsing left the police lines along with accused-respondent for the railway station on his onward journey to Barmer, he made this entry, He has proved it. A look at Ex. P1 A will show that it is mentioned therein that Ridmalsing along with accused respondent and others who had been deputed to go to Barmer, left the Police lines.
5. In can, therefore, be said on the evidence on record that on 27-4-1972, the accused was ordered by the Superintendent of Police, Jalore, who was the competent authority, to proceed to Barmer in connection with the official work.
6. It is not understandable as to how the learned Magistrate has held that initially the accused was ordered to go on 28-4-72 and thereafter the order was changed to 27-4-72 and the same was not communicated to the accused respondent. It is not case of the prosecution not the defence. Therefore, on the material on record, the conclusion of the learned Magistrate that initially the accused respondent was asked to proceed on 28-4-72 and then the order was changed to 27-4-72, is perverse.
7. The plea of the accused is that he was taken ill on 27 4-72 and, therefore, did not proceed en duty. Under Section 29 of the Act, the breach or violation of a lawful order must be wilful. Therefore if the accused was actually ill on 27-4-72 and thus could not proceed to Barmer under Order of the Superintendent of Police, Jilore no off nee under Section 29 of the Act is made out against him. Dr. B.L. Ray PW 7 has clearly stated in his statement that Le did cot examine accused respondent Mangilal on 27-4-72 and advised him rest for three days He admits that in Ex. P10 a certificate with regard to the alleged illness of the accused respondent, it appears that the person who had filled in the various columns of the certificate had written 27-4 72 and the same date was written on Ex. P9. Because there appears to be overwriting, he corrected it to 28. A bare look at Ex. P10, the certificate pf the doctor about the illness of the accused respondent will show that previously, he mentioned 27th but then thereafter, there is overwriting making the date as 28, and there was a plea of the accused that he was ill on 27-4 72, in the facts and circumstances of this case may be correct and while sitting in appeal against acquittal, it will not be proper to hold that the accused wilfully disobeyed the orders of the Superintendent of Police, Jalore to go to Barmer in connection with registration of refugees.
8. The result is that the appeal has no force and it is hereby dismissed