Ranawat, J.—This is a Government appeal against the judgment of the Additional Sessions Judge, Gangapur, dated the 28th November 1949.

2. Shankerdan and Karnidan were arrested in a dacoity case under sec. 397 I.P.C. and they were prosecuted in the court of the Extra Magistrate, Sawai Madhopur. On the 29th of December 1948 they were taken from the judicial lock-up to the court and after the proceedings of their case had finished they were taken by Kanwarilal, a police constable, along with one Moti to the judicial lock-up. Both Shankerdan and Karnidan were jointly handcuffed. They both pretended to make water and the police constable allowed them to attend to the call of nature. After a while Shankerdan managed to take his hand out of the handcuff, leaving it on the hand of Karnidan and both of them managed to run away. Kanwarilal at once handed over the custody of Moti to Yasin Kharadi and he pursued the two accused. He also raised a hue and cry and several persons ran after them. After a short distance Shankerdan was caught by Bhonrilal and Ramnarain. Ramnarain is a police constable and Bhonrilal is a peon of the Court of the Deputy Commissioner, Sawai Madhopur. The same afternoon Karnidan was also arrested on the top of a nearby hill by Kushalsingh, Chiranji and others. Karnidan, Shanker Dan and Moti were prosecuted for an offence under sec. 224 I.P.C. but Moti was acquitted by the First Magistrate, whereas the other two accused were convicted under sec. 224 I.P.C. and they were sentenced to undergo two years rigorous imprisonment each. On appeal, the learned Additional Sessions Judge, Gangapur, acquitted both Shankerdan and Karnidan on the ground that most of the prosecution witnesses were Government servants and the rest were under the influence of the police and also because of the fact that Kanwarilal, from whose custody the accused had escaped, had not been prosecuted for an offence under sec. 223 I.P.C.

3. An appeal against the judgment of the Additional Sessions Judge, Gangapur, has been filed on behalf of the Government in this court and it has been urged by the learned Government Advocate that the grounds on which the judgment of the lower appellate court is based do not justify the inference which have been taken into account by the learned lower court.

4. The prosecution in this case has examined in all 11 witnesses, Kanwarilal is the constable from whose custody both the accused escaped and Shankerdan was apprehended by Bhonrilal. The statement of Kanwarilal is that both the accused escaped from his custody while he was taking them from the court to the Judicial lock-up. He says that they pretended to make water and while sitting Shankerdan managed to take off the handcuff from his hand and both of them ran away. He pursued them both and Shankerdan was arrested in hot pursuit by Bhonrilal and Ramnarain. Bhonrilal and Ramnarain support this version and they say that having heard the cry of Kanwarilal they pursued the accused persons and caught Shankerdan in hot pursuit. Shankerdan also tried to throw stones at these persons but in spite of that they were successful in arresting him, Mt. Panni P.W. 5 lives in the same vicinity and she has stated that she saw both the accused running away and being pursued by Kanwarilal and others. Yasin, P.W. 2, has also fully supported the version given by Kanwarilal. He had come to the court that day in connection with some bail application and while he was standing there Kanwarilal requested him to take hold of Moti while he himself went in pursuit of the two accused. Kushal Singh P.W. 3 and Chiranji P.W. 4 have stated that they went in search of Karnidan the same afternoon and Chiranji saw the accused where he was hiding on the top of a hill. After some resistance Karnidan was apprehended by Chiranjilal and the party led by Kushal Singh. Mt. Panni and Yasin are not Government servants and they do not appear to be under the police influence. It was perhaps by mistake that the learn

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