1. In this case, the petitioner Rur Singh has been convicted under the provisions of Section 223 of the Indian Penal Code and sentenced to two years' simple imprisonment on the charge that he, being a public servant charged with the duty of keeping in confinement certain prisoners who were under trial, negligently suffered these prisoners to escape from confinement.
2. The facts are that on July 31, 1934, at about 2 p. m. seven under-trial prisoners attempted to escape and four of them succeeded by scaling the wall of ward No. 13 in which they were confined along with a number of other prisoners in charge of the accused who was an Additional Head Warder.
3. The defence of the accused is that he Was overpowered by four of the prisoners as soon as he blew his whistle, that he blew his whistle as soon as he saw a prisoner scaling the inner western wall of Ward No. 13 and that his whistle was broken and a button of his waterproof coat was torn off, that he made every attempt to prevent the escape and that he was not negligent in the discharge of his duties.
4. Under the provisions of Section 223 it must be shown that there was negligence on the part of the warder and that the escape was the consequence of this negligence. Before we can decide the question of negligence we must know what the duties of a Warder are, and we have searched the records in vain for any clear indication as to what the duties are. The evidence on this point appears to be the statement of witness No. 9 who was a convict warder and who was also on guard duty in this ward working presumably under the accused. He was on guard duty at the wardgate, outside the ward from which the prisoners escaped. He says incidentally in cross-examination that every sepoy has got to move about when on. duty. There is also a statement of witness No. 2 as Additional Chief Head Warder. He describes the duly of the wall guard sentry as being to see that nobody scales the wall. He also states that patrol duty consists of walking up and down rooms in the cell (he uses 'room' meaning 'cell' and 'cell' meaning 'ward'). This appears to be meaningless as it is not clear how he could spend his time in walking up and down inside the cells. ' This statement also was made in cross-examination. Neither the Chief Head Warder, nor Major Patney nor this witness who is the Additional Chief Head Warder nor any of the other witnesses, including witness No. 4 who is a reserved Chief Head Warder, witness No! 3 who is another Chief Head Warder, witness No. 5 who is also a Chief Head Warder give any information as to the duties which were imposed on Rur Singh and unless we know exactly the duties of the warder it is impossible to find whether he was negligent in the performance of his duties and whether the escape of the prisoners was due to that negligence.
5. Prosecution has tried to prove that at the time of the escape Rur Singh was sitting on a chair in the yard of cell No. 7. This is on the evidence of witness No. 7 Latfar Lama who was a convict on menial duty inside the ward. He says that just before the occurrence it began to rain.
When it began to rain heavily Ear Singh came near Cell No. 7 with a chair and sat there. We then heard a faint sound of whistle. A Babu of Cell No. 7 asked the Subedar Rur Singh to see what was the matter. I and Lal Das came out. Guljari Lal and Rur Singh locked us up in the room (Cell) No. 3.
6. Witness No. 8 Lal Das Malla says, when it began to rain,
A Babu from Cell No. 7 asked us to go there. We went there. This jamadar (identifies Rur Singh) came there with a chair. There was heavy rain. He remained seated on a chair in the verandah. We heard a noise. The Babu of No. 7 asked us to see what that matter was. A whistle was heard and an alarm bell was heard. I and Luftar and another man, who was a convict Methar went inside (Cell) No. 3. Jamadar (Rur Singh) and Guljari locked us up.
7. The prisoners escaped over the wall of Cell No. 15 and it is not clear from the evidence and the plan whether even had the Warder been outside in the ward he could have seen the prisoners scaling the wall and whether in failing to see what happened, he must have been guilty of negligence. Certainly even if he was patrolling the ward and turned towards the north at the lime of this occurrence he could not possibly have seen them scaling the wall at that point.
8. Taking these circumstances into account and in view of unsatisfactory state of the evidence, which is utterly insufficient to enable us to decide whether the warder was in fact negligent in the performance of his duties, we think that this conviction cannot be maintained.
9. For the defence we have the evidence of the Warder of ward No. 14, Munsab Ali Khan who says that he was in the adjoining Ward No. 14 when he heard two whistles from Ward No. 13. Then there was a melee there and he ran towards Ward No. 13 whistling all the way and saw Rur Singh overpowered by four prisoners of Ward No. 13. He saw this from a distance of 50 yards and blew his whistle as he ran towards the place; seeing him these men left Rur Singh. Rur Singh told him that the political prisoners had escaped from the wall of Cell No. 15 and that he had been overpowered and his whistle had been snatched away. In short, this witness corroborated the statement of the accused.
10. On the other hand, for the prosecution we have only the , statement of the two convict servants. We have great difficulty in understanding the evidence owing to the way in which it has been recorded. In some places the word 'room' is used for 'cell' and at other places 'cell' is used, to indicate the 'ward'. Then it is not quite clear whether the word ''verandah' was used to mean a verandah. The map also does not show exactly how the cells are divided and whether it was possible for the Warder patrolling the ward towards the north to see the scaling of the wall of Cell No. 15 or if from any place inside the ward he could have seen the prisoners scaling the wall of the prison.
11. It is most important that where any jail servant is found to be negligent in the performance of his duties, he should be punished for the maintenance of the discipline of the Jail administration. But if cases are prosecuted in the manner adopted in this case, it is impossible for the Court to determine whether the accused has been guilty of the offence charged. We have had some hesitation as to whether we should not send back this case for re-trial but we find that the trial took place in, last September and since then there has been an appeal to the Sessions Judge. The accused has already undergone a term of imprisonment. He has had to appear on three different occasions, and we think that we should not be justified in the circumstances in sending the case back for re-trial. The conviction and sentence are, accordingly, set aside and the accused is acquitted.
CR.E.P. No. 8 of 1935.
12. The petitioner Sepoy Pandey has been charged with an offence under Section 223 of the Indian Penal Code on the ground that he inadvertently allowed certain prisoners to escape by climbing the wall of the Jail. He was convicted and sentenced to two years' rigorous imprisonment.
13. In this case, the learned Advocate for the Crown says that he is unable to support the conviction which seems to be founded on the statement of the accused. Regarding the evidence for the prosecution the learned Judge says:
If the appellant had merely pleaded not guilty he might have been acquitted. But the appellant has committed himself to a written statement in the case. As he has done so, and as that written statement is quite inconsistent with the evidence and with the circumstances of the case, I think that his conviction must be upheld.
14. The evidence so far as we can discover does not show in what way he was negligent, and that it was due to his negligence that the escape was made. The conviction and sentence are, therefore, set aside and the accused, acquitted.
15. The remaining petitioner is Pandeo Tewari. He has also been convicted under Section 223, Indian Penal Code and sentenced to two years' rigorous imprisonment. He claims to have been overpowered by some of the prisoners. He says that he has standing facing south-east doing his duty when suddenly some political prisoners scaled over the small wall connecting the two Cells Nos. 13 and 14 and came to attack him. He blew his whistle with the utmost difficulty, but was completely overpowered and he was unable to do anything.
16. The learned Judge states that it is urged for the prosecution that it was his duty to face the wall of Ward No. 13 and the fact that he was facing the south-east, that is towards the outer wall, amounts to negligence of duty. We have found in the evidence of the Chief Warder and Major Patney that the Warder's duty is also to see that nobody scales the outer wall or throws anything in from outside. This applies to the Warder posted near the weaving shed, so that it was a part of his duty to watch the outer walls of the Jail, and if, as he claims he was overpowered from behind when he was engaged in this duty, he cannot be said to have been negligent, since there is no evidence to show that the escaping prisoners could not have climbed over the wall noiselessly or in such circumstances as made impossible for him to be taken unawares from behind. The evidence shows that at the time of the escape, he was seen near the gate of the weaving shed just outside the gate. This apparently is a position from which the outer walls of the Jail are visible and the evidence is not sufficient to show that he was negligent in his duty at the time of the escape, and that the statement that he was overpowered before he could turn his back is not true.
17. It was suggested by the Crown that he was inside the shed but the evidence shows on the contrary that he was outside the gate of the weaving shed.
18. Without farther evidence it is impossible to decide on the materials before us that he was negligent in the performance of his duty, and that the escape resulted as a consequence of such negligence. The conviction and sentence are accordingly set aside and the accused acquitted.
19. The petitioners, who are on bail, will be discharged from their bail bonds.
20. I agree.