(1.) These appeals arising out of the same judgment and order have been heard together and will be governed by this common judgment. The appellants along with the co -accused Arun Chandra Bhoi, a Jail Warder, stood trial in Sessions Trial Nos. 100 of 1980 and 16 of 1981 arising out of the same case and clubbed together. The appellant Sk. Raheman has preferred Criminal Appeal No. 158 of 1981 and also Jail Criminal Appeal No. 183 of 1981 against the same judgment and order of conviction and sentence passed against him. The appellants Makar Jena,Sk. Abdul Razak, Sk. Raheman and Niranjan Rai Das along with the co -accused Niranjan Dehury stood charged under Section 302 of the Indian Penal Code (for short, the 'Code') for having committed the murder of the Jail Warder Mayadhar Sahu and they also stood charged under Section 302 read with Section 149 of the Code with two other persons, namely, Gopal Ray and Samar Ray, who were said to be absconding for having committed the murder of Mayadhar Sahu in furtherance of their common object. Besidei, they stood charged under Section 224 of the Code for having escaped from the lawful custody while lodged in the Sub -Jail at Jajpur. The appellants Sk. Abdul Razak and Sk. Raheman besides the appellant Niranjan Rai Das were under -trial prisoners while the appellant Makar Jena and the co -accused Niranjan Dehury as convicts were undergoing the sentences of imprisonment. The appellant Antarjyami Patra and the co -accused Arun Chandra Bhoi, both Jail Warders, stood charged under Section 223 of the Code for having negligently suffered the appellants Mrkar Jena, Sk. Abdul Razak and Sk. Raheman besides the co -accused Niranjan Dehury from their lawful confinement being legally bound to keep them in confinement as public servants.
(2.) THE incidents had taken place between 9.00 p. m. and 12 00 midnight on the 9th August, 1978, in the Sub -Jail at Jajpur. The case of the prosecution was that the aforesaid under -trial prisoners and convicts along with Gopal Ray and Sumar Ray broke open the entrance door of Ward No. 1 in which they had been confined and after some of them killed the Warder Mayadhar Sahu (to be hereinafter referred to as the 'deceased'), escaped through the Sub -Jail gate which was in charge of the two accused Jail Warders. On the basis of the first information report lodged by the Superintendent of the Sub -Jail, as per Ext. 22, investigation followed and the aforesaid convicted persons and the under -trial prisoners who had escaped were caught by the police officers. On the completion of investigation, charge -sheets were placed and the appellants with the co -accused Niranjan Dehury were prosecuted being charged as stated above.
(3.) THE learned counsel appearing for the appellant Antarjyami Patra has contended that no case of negligence had been made out against this appellant and he had improperly been convicted. The learned counsel for the other appellants have not assailed the order of conviction recorded against them under Section 224 of the Code. They have, however, contended that the charge of murder had not been established against any of them. Mr. D. P. Sahu, the learned Standing Counsel, has submitted and in our view, fairly so, that no case had been made out against the appellant Antaryami Patra for commission of the offence punishable under Section 223 of the Code. While supporting the order of conviction passed against the appellants Sk. Raheman and Sk. Abdul Razak under Section 302 of the Code, the learned Standing Counsel has been fair in contending that the charge under Section 302 read with Section 149 of the Code against the appellants Niranjan Rai Das and Makar Jena had not been established and the order of conviction is not well -founded. He has submitted that the charge under Section 224,of the Code against the appellants who have been convicted thereunder had been established by clear and cogent evidence.