The prosecution must establish lawful custody for a conviction under Section 224 of the IPC; absence of evidence leads to acquittal.

JUDGMENT :

M.M. Nerlikar, J.

Heard the learned Additional Public Prosecutor for appellant and learned counsel for respondent.

2. The present appeal is preferred by the State against the judgment and order passed by the learned Assistant Sessions Judge, Pusad dated 26.07.2011, wherein the accused was ac-quitted for the offence punishable under Section 224 of the Indian Penal Code (“ IPC ”) thereby setting aside the judgment and order of conviction and sentence passed by the Trial Court in Summary Criminal Case No. 916/2000.

3. The learned APP submits that the accused on 11.05.2000 at about 02.30 p.m. was apprehended by the Police on an allegation that he was suspected to commit an offence. Therefore Istegasha No.8/2000 was registered under Section 41 (2) of the Code of Criminal Procedure. He submits that the Appellate Court has erred in giving the finding that the accused was not in a lawful custody. The prosecution in order to bring home the guilt of the accused, has examined two witnesses i.e. PW-1 Manoharsingh Vitthalsingh Chunade who lodged the report and PW-2 Jagdeo Mahadeo, Police Inspector who had registered an offence against the accused under Section 224 of the IPC .

4. The Trial Court has convicted the accused after considering the evidence on record, by concluding that the prosecution has proved the case beyond reasonable doubt, as the witnesses stood firm in their version and nothing was brought on record in cross-examination to shatter their testimony, therefore, according to him, the Appellate Court committed gross error in acquitting the accused, only on the ground that he has not escaped from the lawful custody and the custody was illegal. Lastly, he prayed to reverse the findings of the Appellate Court.

5. On the other hand, the learned counsel for respondent/ accused submitted that the prosecution has miserably failed to consider the scope of Section 224 of the IPC . The Trial Court wrongly considered the purport of that the accused escaped from the lawful custody. Further, there are several lacunae in the case of the prosecution, therefore, the story put- forth by the prosecution cannot be believed. It is alleged that the accused was taken into custody by the Police by invoking Section 41 (2) of the Code of Criminal Procedure (“Code”), however no arrest panchanama was effected. Not only that, there is no Istegasha presented before the Trial Court, which is a part and parcel of the charge-sheet, merely placing on record the extract of station diary would by itself does not lead to the conclusion that the accused has committed an offence. In-fact, (2) of the Code does not come under the category of the offence, as the purpose of (2) of the Code is altogether different. If at all the accused was taken into custody, he ought to have been interrogated and if no offence was made out, he ought to have been released on the very day, however he further submits that the prosecution has failed to register the offence, therefore, it cannot be said to be a lawful custody as per of . The Appellate Court has rightly considered the entire material on record as well as the evidence adduced by the parties and upon re-appreciating the evidence, the Appellate Court has acquitted the accused by setting aside the order of conviction.

6. Upon hearing the learned APP as well as learned counsel for respondent, it appears that the prosecution has examined two witnesses i.e. PW-1 Manoharsingh Vitthalsingh Chunade and PW-2 Jagdeo Mahadeo, Police Inspector. So far as the PW-1 is concerned, he has deposed that he knows the accused. On 11.05.2000, the accused was arrested by D.B. Squad, Pusad under Section 41 (2) of the Code. After arrest, he was kept in the lockup of City P