ORDER :

This petition is filed by the petitioners/accused Nos.2, 3 and 5 challenging the judgment and order dated 17.2.2016 rendered by the Court below in Crl.A.No.5012/2015 dismissing the appeal and confirming the judgment of conviction and order of sentence passed by the trial Court in C.C.No.957/2009 dated 30.06.2015 convicting the petitioners/accused persons for the offence punishable under Section 224 of IPC.

2. The factual matrix of this petition is that on 22.07.2009 at 11.00 p.m. to 12.00 in the mid-night, the accused persons who were the under trial prisoners housing in the Madhugiri subjail which is in front of the Madhugiri police station, broke open the iron bars of cell No.5 and escaped from the lawful custody. In pursuance of filing of the complaint by the concerned jail authorities, the crime came to be registered against the accused persons for the offence under Section 224 of IPC. Subsequently, the case was taken up for investigation by the IO and after thorough investigation charge sheet was laid against the accused in C.C.No.957/2009. After securing the presence of the accused, the trial court read over the charges to the accused persons and they did not plead guilty and claimed to be tried.

3. In order to prove the case, the prosecution examined 16 witnesses as PWs.1 to 16 and got marked 9 documents as Exs.P1 to P9 and M.O.1 to M.O.4. The statement of the accused persons were recorded as prescribed under Section 313 of Cr.P.C. and the accused persons denied the incriminating evidence. However, they did not adduce any oral evidence nor produced any documentary evidence. After hearing both the sides, the trial Court held the accused persons guilty of the offence punishable under Section 224 of IPC and sentenced them to undergo six months SI with Rs.5,000/- fine and in default to undergo imprisonment for two months and further ordered that if they were in judicial custody during trial, the same shall be, set-off against the sentence. Aggrieved by the judgment of conviction and sentence rendered by the Court below, the accused persons preferred the appeal before the lower Appellate Court. The Appellate Court vide judgment and order dated 17.02.2016 dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the trial court in C.C.No.957/2009. Hence, this petition by the petitioners for seeking set-aside the judgments of the Court below.

4. Learned counsel for the petitioners contends that the judgment and order of sentence passed by both the Courts below are without considering the facts and probabilities of the case and they suffer from legal and factual infirmities. The Courts below erred in believing the evidence of PW.1 who has given a clear goby to the prosecution case in his cross-examination that he did not hear breaking open of the iron bars of the cell. Further, the Courts below have erred in believing the evidence of PWs.1 and 8 said to be the interested and officials. The courts below erred in believing the case of the prosecution, though the evidence adduced by the prosecution witnesses is not cogent, convincing and corroborative to each other.

5. Further, he contends that the courts below erred in not giving benefit of doubt when the prosecution has failed to prove the fulcrum of Ex.P2 and P3, the spot mahazar and seizure mahazar. It was the case of the prosecution that PW.9 was unconscious and using the said situation, the accused persons have escaped from cell No.5. The evidence of PW.1 has not been corroborated by any of the under trial prisoners be examined as witness for the prosecution. PW.2 has clearly stated that the police did not call to Madhugiri sub-jail and they have not conducted any panchanama and not seized any articles and they have obtained his signature on Ex.P2 in the Madhugiri bus stop. This clearly throws a doubt about foisting a false case against the accused persons as they have not committed any offence as alleged under Section 224 of IPC. Furth