G KKUMAR Vs. STATE OF MYSORE

JUDGEMENT

(1.) Accused 3 who has been convicted by the First Class Magistrate, Civil Station, Bangalore, of an offence punishable under Section 224 of the Penal Code and whose conviction has been confirmed by the Court of Sessions, is the petitioner before me.

(2.) According to the evidence of P. Ws. 1 and 2 which both the Courts believed, accused 3 was found in a place in Broadway Road, conducting a gambling operation. Accused, according to their evidence, was also there but before accused 1 could be apprehended, he decamped with the result that P. Ws. 1 and 2 were able to apprehend only accused 3. P. W. 1 is a head constable and P. W. 2 is a constable. When they were conducting accused 3 to the police station together with the instruments of gaming which they seized, at a place near the new market, accused 1 and 2 who were near a shop prevented P. Ws. 1 and 2 from proceeding further and made it possible for accused 3 to escape from lawful custody. The evidence given by P. Ws. 1 and 2 was that accused 2 went into the shop or P. W. 3 and brought some bottles from within and threw them at P. Ws. 1 and 2 and that accused 2 also assaulted P. W. 2. When during skirmish P. W. 2 released his hold on accused 3, accused 3, according to their evidence, ran away. Accused 1 and 2 were convicted of offences punishable under Section 225 and 353 of the Penal Code and accused 3 was convicted of an offence punishable under Section 224 of the Penal Code. All the three accused appealed to the Court of Session but their convictions were affirmed.

(3.) Mr. Asif appearing on behalf of accused 3 urges that this is a case in which it can be said that the accused has committed no offence under Section 224 of the Penal Code. His first submission is that since there is no evidence of accused 3 having intentionally escaped from lawful custody and since the evidence if at all establishes that accused 1 and 2 rescued accused 3 by force for which accused 3 himself was not in any way responsible, no offence under Section 224 of the Penal Code could be said to have been committed by him.