JUDGMENT Mukerji, J. - This appeal relates to a very unfortunate incident which occurred in a village known as Dhariwala in the district of Muzaffarnagar. 24 persons have been convicted by the learned Sessions Judge on charges under Sections 148 and 333 read with Section 149 of the Indian Penal Code. The original charges on which the appellants and some others were committed to the Court of Session were Sections 148 and 332/149 I.P.C. In the Court of Session the charges were amended and instead of Section 332, Section 333 was substituted. But from the judgment of the learned Sessions Judge it would appear that he took no notice of Section 149 of the Indian Penal Code. 2. The facts which have been undoubtedly established in the course of the trial are shortly these: The Bijnor Police wanted two persons Ganeshi and Bhagwana who were implicated in a case of dacoity, They got some information that these men were staying in Dhariwala, in the district of Muzaffarnagar. A small council of Police Officers was held at the village of Tissa in the district of Muzaffarnagar on the 19th of May. It was then decided that, the City Kotwal, Ram Ratan Lal, of the district of Bijnor, the three constables who had accompanied him namely Rumal Singh, Chhote Singh and Niaz Ahmad, the Sub-Inspector Tahawwar Ali of the Police Station of Bhopa in the district of Muzaffarnagar and a Police Constable Shiva Ram of the same Police Station, should go into the village of Dhariwala in search of the two persons who were wanted. 3. Early in the morning, the party started from where they were staying and arrived at Dhariwala at 8, on the morning of 20th May, 1923. The hour is important from various points of view. It is to be noted that in the judgment of the learned Sessions Judge it is mentioned at one place that the party arrived at 6 in the morning. But that is clearly due to an oversight. The party having arrived at Dhariwala, left their tongas outside the village habitation and proceeded on foot They met one Nanhwa who was loading a cart of manure. They enquired of him where Ganeshi and Bhagwana were. Nanhwa directed the party to the quarters of Jogis. But that is clearly due to an oversight. The party having arrived at Dhariwala, left their tongas outside the village habitation and proceeded on foot They met one Nanhwa who was loading a cart of manure. They enquired of him where Ganeshi and Bhagwana were. Nanhwa directed the party to the quarters of Jogis. One of these Jogis namely Faqira was questioned and he directed the party to the house of one Debi Chauhan. This house was surrounded by the Police. Some of the Police Officers were near the house, some were at same distance. One of the Officers entered into the house of Debi. He noticed that an old woman was removing a bundle and he followed her into a hut. What happened thereafter is not very clear. It appears that at about this stage of affairs the Police Officers who were at or near Debi's house were assaulted by a number of villagers. The Sub-Inspector of Bijnor Ram Ratan Lal came in chiefly for the assault. Tahawwar All, the other Sub-Inspector, got the news and hurried to the rescue, It appears that there was a free fight; for we find that some of. the villagers (more or less 14 in number) also received injuries in the course of the scuffle. Sub-Inspector Tahawwar Ali fired some shots and one of these hurt the accused person, Shera. Thereafter 4 out of the Police were overpowered and captured and two ran away. A party went in search of them and caught them. All were then taken to the zemindar's dera or collection house; thence they were removed to a hut which has been described as Dobari. The Police were kept confined the whole day and night. In the course of the night one of the party managed to run away. In the meanwhile, Pullu, one of the man who had driven the tongas, ran away and gave information. Early in the morning some Police Officers including the Deputy Superintendent of Police of the district of Bijnor and many of the villagers arrived and rescued the Police Officers. Then there was a more or less indiscriminate a -rest of able-bodied parsons and a parade was held for identification by the Police Officers. Many arrested persons were let go. About 30 were sent up to the custody. Shera and his brother Mangal who were in the meantime in the hospital were arrested there. Then there was a more or less indiscriminate a -rest of able-bodied parsons and a parade was held for identification by the Police Officers. Many arrested persons were let go. About 30 were sent up to the custody. Shera and his brother Mangal who were in the meantime in the hospital were arrested there. Thus 32 men were placed before the Committing Magistrate-the learned District Magistrate himself. He discharged two and committed 30 to stand their trial before the Court of Session. The learned Sessions Judge acquitted 6 and convicted, as already stated, 24. 4. The case which has been very fully argued on both sides divides itself into four portions: (1) We have to see what was the motive of the attack on the Police Officers; (2) Nest we have to see who were the persons who were connected with the attack; (3) Thirdly we have to see what are the offences under the Indian Penal Code that they committed. (4) Last but not least is the question of punishment. 5. On the first point the learned Sessions Judge has found himself unable to give a clear answer. He begins his judgment by saying: "The facts of this case are not seriously in dispute, but it will never be known why the accused attacked the police who were merely going to arrest a couple of dacoits in the course of their ordinary duty". Then he put two alternative probabilities before himself. He thought that there could only be two reasons for the offences; either the Police Officers maltreated the village people or the accused persons were determined from the very first to prevent a search of their houses "because they were all involved in a series of dacoity cases that had taken place recently". He came to the conclusion that the latter was the more probable reason. Further he said that as the accused persons had not set up any clear case and had contented themselves mostly with pleading alibis it was impossible to tell with certainty how the quarrel arose. Having gone through almost the whole evidence that was before the learned Sessions Judge I have come to the conclusion that the theory set up in argument before the learned Sessions Judge-namely, the officers were mistaken for dacoits or robbers who had come to extort property on false pretences, was the true one. Having gone through almost the whole evidence that was before the learned Sessions Judge I have come to the conclusion that the theory set up in argument before the learned Sessions Judge-namely, the officers were mistaken for dacoits or robbers who had come to extort property on false pretences, was the true one. The Deputy Superintendent of Police, Mr. Hasnain, who as I have said, was an officer from Bijnor, said that between Bijnor and Tissa the officers never put on any uniform for the purpose of concealing their identity. The party met people on the way and told them that they formed a marriage party. It is to be noted that the party from Tissa arrived at 8 in the morning in the village. They came on tongas drawn by bullock carts which they left outside the village. It would have been subversive of the object for which the officers came, namely the arrest of dacoits who bad taken shelter in the village, to have come in their uniforms. It is not the case that all the officers came suddenly on horse back and surprised a certain house where they knew the persons wanted were. They did rut know definitely where to find Ganeshi and Bhagwana. They had to make enquiries and they did make enquiries, as I have already stated. If they had been in uniforms it would have been impossible for them not to reveal their identity, with the result that the dacoits whom they wanted would take notice and run away. It seems to me, therefore, to be certain that the officers were without any uniforms. This theory is supported by a good deal of circumstantial evidence. I am rut ignoring the fact that all the police officers and some other witnesses for the prosecution say that actually thought about the party. After the villagers had overpowered the police party they took them to the zemindar's dera and then confined them in a hut. They mounted guard day and night lest the party should escape. If they had any suspicion that the party were a body of police officers they would not have acted as they did. They would have simply beaten them and let them go. They mounted guard day and night lest the party should escape. If they had any suspicion that the party were a body of police officers they would not have acted as they did. They would have simply beaten them and let them go. There could be no object to be gained in keeping them alive and intact in the hut, mounting guard against their escape, knowing it all the while that the news would get out and a larger body of officers and men would come and take them to task. The presence of the 3 Government or semi-Government officials, the patwari, the chaukidar and the mukhia also point to the same conclusion. The learned Sessions Judge has at one place in his judgment remarked that the villagers did not know what to do with these men. That can hardly be correct. They knew quite well what they were about. They were girding them, so that authorities might come and arrest the party in confinement. There could have been no idea of killing them and disposing of the bodies, though one of the police men has suggested it. If such had been the idea, the night was the right time, but the confined men saw the light of the next day safe and alive. That the villagers did not inflict more injury than was inevitable in a free fight between unequal numbers and subsequent capture, is abundantly clear. The injuries on 5 of the Police Officers (though numerous in some cases) were all "simple." Only one sustained a "grievous hurt", but even that was not serious. They knew that Shera on receiving the bullet injury had gone to the authorities to make a report. It is in evidence and has been satisfactorily established that Shera and his brother Mangal went away to complain. Of course, the villagers could not tell where Shera and Mangal actually went. Shera and Mangal went directly to the District Magistrate of Muzaffamagar and laid a written application before him stating a part of the incident. Shera and Mangal have been described as ringleaders in the affair. But if Shera and Mangal knew that they were in the wrong, they would not have themselves gone to the highest district authority. Shera and Mangal went directly to the District Magistrate of Muzaffamagar and laid a written application before him stating a part of the incident. Shera and Mangal have been described as ringleaders in the affair. But if Shera and Mangal knew that they were in the wrong, they would not have themselves gone to the highest district authority. It is clear, therefore, that, the villagers never knowing or suspecting that they had, police officers in confinement were guarding them so that police officers might come and arrest those whom they themselves had arrested. I am, therefore, clearly opinion that the whole affair is (not a comedy but) a tragedy of errors. 6. Now let us see who were the people who took part in the affair. On this point unfortunately the judgment of the learned Sessions Judge gives this court no assistance. He has given reasons, and very good reasons too, for acquitting six of the accused person before him. Then he finishes the case against the remaining 24 accused persons by a single sentence, viz., by saying that he considers that they had taken part in the riot. Fortunately, however, the Counsel for the appellants and the Crown have taken great pains and the Crown Counsel had the assistance of the Prosecuting Inspector. I am in full possession therefore of the entire body of evidence that is against the individual appellants. 7. Among the appellants there are three persons who are more or less connected with the Government, namely the Patwari Kishan Lal, Gopi, the Mukhia and Ghasita, the Chaukidar. As against these, the police evidence, is clearly to the effect that not only they took part in the riot but excited others in causing hurt to the police officers. Only in one case, there is one of the police officers namely Shiva Ram, who says that the Patwari Kishan Lal interfered in his (Shiva Ram's) being further maltreated. The learned Sessions Judge has not believed any portion of this evidence and very rightly too. He says :-" There are three officials, Gopi, Ghasita and Kishan Lal Patwari. The police complained that none of these three did anything to save them from injury but rather encouraged the villagers than otherwise. I do not think it very likely that they encouraged the villagers, but they probably found that their position was a helpless one". He says :-" There are three officials, Gopi, Ghasita and Kishan Lal Patwari. The police complained that none of these three did anything to save them from injury but rather encouraged the villagers than otherwise. I do not think it very likely that they encouraged the villagers, but they probably found that their position was a helpless one". I have heard the entire evidence and I can say that I am in a position to fully agree with the opinion formed by the learned Sessions Judge, who saw the witnesses himself. It is clear then that the case against these persons has been very much exaggerated. I am prepared to believe the witnesses so far that these men were found among the body of villagers who had collected about the police officers and that some of these came and went where the officers were kept in confinement. This would be in consonance with the theory set forth above namely that, the policemen were taken to be dacoits. I forgot the officers were in uniforms, but I have serious doubts on the point. The witnesses differ as to where officers were stripped of their uniforms. The next morning, the whole village was raided by a large body of men when arrests were made. It is not said that any of the uniforms were recovered. It would not have been easy for the villagers to do away with the uniforms of six men. Besides, they were acting or supposed to have been acting in utter defiance of law. Under the circumstances it would not he likely that they would think it necessary to destroy the uniforms. 8. The prosecution witness Rumal Singh (199 of Judge's notes) says that no uniforms were taken off in the dera in his presence. Niaz Ahmad, prosecution witness No. 5, says that the uniforms were taken off at the dera (219 ibid.) The police officers were all kept together and this discrepancy is inexplicable. Rumal Singh says that, when the villagers beat the party they said among themselves that the party were dacoits. Niaz Ahmad also says that the crowd which assaulted the police party called them dacoits. Rumal Singh says that, when the villagers beat the party they said among themselves that the party were dacoits. Niaz Ahmad also says that the crowd which assaulted the police party called them dacoits. Ram Ratan Lal, prosecution witness No. 6, says that when he had first attacked one or two people said that he was a dacoit Banwari, prosecution witness No. 16, says that when he went inside the room in which the police had been kept in confinement he recognised the thanedar of Bijnor and that he told the accused Mehar Singh that, the party were police but the answer given was that they were not police officers but were dacoits. He further said in his cross-examination that the party were in plain clothes (the word in vernacular is sada which would mean plain clothes). The learned Judge has translated it as white clothes. The person who was first accosted by the police officers namely Nanhwa was produced on behalf of the defence. He too says that the officers were in plain clothes. He further says that when he was asked the whereabouts of Bhagwana, then he thought that they were police officers and the police officers themselves told him that fact. There is therefore substantial body of evidence to indicate that there were circumstances which made the villagers to suspect that the party of six were robbers who had come to rob the villagers on a pretext of searching for dacoits, When the villagers wanted to arrest the police officers there was a free fight (as I have already stated, about 14 persons out of the accused were hurt), between the villagers and the police officers and in the course of the fight revolvers were fired. This last incident must have confirmed the villagers in their belief that the party were genuine dacoits who had come armed. 9. As against the theory of the learned Sessions Judge that the village people resented the proposed arrest of Bhagwana and Ganeshi "because they were all involved in a series of decoity cases", it has been pointed out that there is no evidence to substantiate it. Not a word has been said indicating that Ganeshi and Bhagwana had any relations in the village. There is nothing to show that the village people or some of them were suspected to have been dacoits. Not a word has been said indicating that Ganeshi and Bhagwana had any relations in the village. There is nothing to show that the village people or some of them were suspected to have been dacoits. Indeed the very fact that the police officers did not think it necessary to have a larger party than they themselves formed goes to show that no serious consequences were ever feared. The learned District Magistrate was examined in the court below and he said that he never heard the name of the village of Dhariwala till the incident occurred. This shows that the village had no bad reputation. The learned Sessions Judge had the accused persons before him for several days and he observes in his judgment that they were men of exceptionally poor physic and of a very law type of intelligence. Indeed, there is on the record evidence of incidents which show how poor in intellect all these men really are. The learned District Magistrate, when the party of the accused persons were brought before him on the 21st of May, 1923, asked them if any of them had received any injuries and none of them told him that they had. The learned District Magistrate put the question only to satisfy himself as to whether the villagers had been illtreated but the villagers had not the intelligence enough to understand him and kept quiet. It was only, says Mr. Darling, that after he had seen the medical report that he came to know that several of the accused persons had received injuries. Under the circumstance it cannot be the case that, the whole village or a considerable part of the inhabitants were involved in a series of dacoity cases. The incident of an old woman removing something from Debi's house, may have been accidental or due to an anxiety to save property from being taken by the supposed robbers. 10. Let us now consider the conduct of the villagers themselves, to find out what they to mention, but it is important to do so, even now, that all the police officers except Shiva Ram were utter strangers to the village. Shiva Ram alone says that he had visited Dhariwala just a few times before. There would be nothing strange then that, even the Patwari, the Chaukidar and the headman should have been ignorant of their identity. Shiva Ram alone says that he had visited Dhariwala just a few times before. There would be nothing strange then that, even the Patwari, the Chaukidar and the headman should have been ignorant of their identity. Shiva Ram has not said that he met any one in the village who was already an acquaintance of his. If he had met any such person his identity would have been disclosed and matters would not have been so bad. 11. Having acquitted these three men of taking any deliberate part in the riot or exciting the rioters, the learned Judge convicts the three persons of not making "strenuous efforts to prevent the riot and the subsequent disgraceful torture". This is his language. 12. Gopi, however, is a man of fairly good position in the village and there is no reason to think that he wanted the police to be seriously injured. On the other hand, neither he nor the Patwari nor the Chaukidar seems to have made strenuous efforts to prevent the riot and the subsequent disgraceful torture and I am not prepared to let them off lightly. It may have been cowardice rather than deliberate wish to injure the police that brought them into the quarrel, but they are certainly responsible for not trying to moderate the violence of their more ignorant comrades. The Chaukidar ought to have escaped long before the quarrel became universal and made a report at the thana". I am afraid the reasons given by the learned Sessions Judge cannot be any sufficient ground for convicting men of offences under the sections of the Indian Penal Code under which they have been convicted. On the learned Judge's finding therefore these men must be acquitted. In the circumstances, I do not feel called upon to discuss in detail the particular evidence that may be against these men. 13. Sarjit, Mukh Ram, Debi Sahai, son of Bansi and Rahwa as well as Gopi were represented by Mr. Thompson. I have already acquitted Gopi. I will now consider the case of the remaining four. Before I enter into the evidence I will dispose of a point of law. It appears that the depositions of two of the witnesses namely Chhote and Niaz Ahmad (P. W. Nos. 3 and 5) taken before the learned Committing Magistrate were admitted into evidence at the close of their depositions before the learned Sessions Judge. Before I enter into the evidence I will dispose of a point of law. It appears that the depositions of two of the witnesses namely Chhote and Niaz Ahmad (P. W. Nos. 3 and 5) taken before the learned Committing Magistrate were admitted into evidence at the close of their depositions before the learned Sessions Judge. A question arose how far this evidence recorded by the learned Committing Magistrate could be treated as evidence. It appears that the witnesses failed to identify all the accused persons whom they had identified before the learned Magistrate. It was found that over two months had elapsed between their examination before the learned Magistrate and the date on which they were examined before the learned Sessions Judge and it was likely that the witnesses should forget the faces. Under these circumstances I think it was entirely within the discretion of the learned Sessions Judge to admit the evidence. The evidence was admitted before the cross-examination began and the defence could therefore cross-examine the witnesses on the statements that they had made before the Committing Magistrate. 14. It will be necessary to go into the history of the case before examining what evidence there is against the individual appellants. On the morning of 21st May, 1923, when the Deputy Superintendent of Police, Mr. Hasnain, arrived with a large body of men and rescued the five police officers who were still in confinement, he ordered the arrest of all able-bodied men in the village. These men numbering between 70 and 80, were put up in an open space of land and the police officers were called upon to identify them. It is in his evidence that those who were identified by less than two of the police officers were let go and those who were identified by two or more of the police officers were arrested and sent up to Muzaffamagar. This was no doubt a very proper thing to do. But most unfortunately, no record whatsoever was kept of these identification proceedings. Indeed the proper thing to do was to send the men, after identification on the open field, at once to the custody and then to conduct a fresh identification proceeding in the jail before a Magistrate and to keep a record. This is always done in dacoity cases. But most unfortunately, no record whatsoever was kept of these identification proceedings. Indeed the proper thing to do was to send the men, after identification on the open field, at once to the custody and then to conduct a fresh identification proceeding in the jail before a Magistrate and to keep a record. This is always done in dacoity cases. The Police Officers were utter strangers to the village and it would be very difficult for them to remember the faces long after the occurrence. It was therefore necessary to keep a record of the identification which took place soon after the incident. The learned District Magistrate started an enquiry into the case on the 5th of June 1923. Then as usual, the accused persons would be brought unveiled to his Court and would be kept outside the Court till the case was called on. The prosecution witnesses would thus have an opportunity to see the accused persons over and over again. In these circumstances, the utility of identification in the Court of the Committing Magistrate and later on in the Court of Session is very much diminished. In no dacoity case, a court would convict a person who was not identified in the jail or before a proper authority, immediately after the arrest, simply on the strength of identification conducted in the Court of the Committing Magistrate or the Sessions Judge. This being the case the evidence in this case loses its entire value. A further difficulty is created in the case by the fact that the witnesses are, generally speaking, unable to say what part what accused person took in the affair. I recognise this would be impossible for the prosecution witnesses to do in most of riot cases or of dacoity cases. But, where the safe-guard of an earlier identification is non-existent the court is bound to insist on something being said by a prosecution witness to indicate why and how he happens to remember the faces long after the event. The witnesses, again speaking generally, said before the courts that, they saw such and such of the accused persons, either in the riot or in guarding the police officers in the hut. Thus, the second safeguard against the inaccuracy and deliberate perjury is also taken away. I will quote an example. As against Debi Sahai. son of Bansi, there is the evidence of Shiva Ram. Thus, the second safeguard against the inaccuracy and deliberate perjury is also taken away. I will quote an example. As against Debi Sahai. son of Bansi, there is the evidence of Shiva Ram. He says "I can recognise by appearance the following...Debi Sahai, son of Bansi". The witness does not say what part Debi Sahai, son of Bansi, took in the riot. 15. Coming to individual cases, Sarjit is mentioned by only one witness namely Chhote in the Court of the Magistrate. There is no other evidence against him. On this ground alone he is entitled to an acquittal. It is unsafe to base a conviction on the statement, of one identification. 16. As against Mukhram there is only one witness, namely, Niaz Ahmed, who has purported to identify good many people. It is unsafe to base a conviction on the testimony of one identifying witness, so he too is entitled to an acquittal. 17. As against Debi Sahai, son of Bansi, there is the evidence of one witness only, namely, Shiva Ram, Masita mentions one Debi but that is clearly the other accused person. For Debi, son of Bansi, has always been described as Debi Sahai and not as mere Debt. For the reasons given above, Debi Sahai, son of Bansi is also entitled to an acquittal. 18. As against Rahwa there is no evidence recorded by the learned Sessions Judge. His conviction, if any at all, must be based on the statements of Niaz Ahmad and Chhote recorded in the court of the learned Magistrate. I consider that it would be unsafe to rely for conviction on the statements of those two witnesses only, specially as no record was kept of the initial identifications and the witnesses had an opportunity of seeing the accused persons before the Magistrate. 19. I will now take the case of the appellants represented by Mr. Bajpai. 20. As regards Shera he is the man who received the bullet wound. His presence is clearly established, It will be a matter for consideration whether he should be convicted or not and, if so, of what offence. 21. Mangal's presence is sworn to by no less than five witnesses and I must hold that he too was present at the commotion. 22. Against Saktu we have got the evidence of Niaz Ahmad alone and I would not convict him. 23. 21. Mangal's presence is sworn to by no less than five witnesses and I must hold that he too was present at the commotion. 22. Against Saktu we have got the evidence of Niaz Ahmad alone and I would not convict him. 23. As regards Shadi we have evidence of three witnesses, namely Shiva Ram, Rumal and Masita. His presence on the occasion must therefore be taken to be practically certain. 24. As regards Bhagwana we have the evidence 0f three witnesses, namely Shiva Ram, Masita and Mukha. His presence too is therefore assured. 25. Partap son of Narpat, has been mentioned by only one witness namely Niaz Ahmad and I would not convict him. 26. As against Sukkha, son of Behari, we have no less than the testimony of five witnesses namely Shiva Ram, Niaz Ahmad, Ram Prasad, Masita and Mukha. His presence is therefore assured. 27. As against Jugna, the only person who mentions him is Niaa Ahmad who has mentioned a lot of people. I would not convict him. 28. Against Jhabba we have the evidence of two persons namely Niaz Ahmad and Masita. Jhabba does not belong to the village of Dhariwala. He is the son-in-law of Shera and he says that he happened to come to the village on the morning of the 21st of May, 1923 and was arrested. I doubt his complicity and give him the benefit of it, I would not therefore convict him. 29. As against Mula we have the evidence of only two persons,-namely Shiva Ram and Niaz Ahmad. Acting on the principle already laid down for my conduct I would acquit him also. 30. As against Debi, son of Behari, we have no less than six witnesses-namely Ram Ratan, Shiva Ram Chhote, Niaz Ahmad, Ram Prasad and Masita. It will be remembered that he is the man whose house was going to be searched when the resistance took place. There can, therefore, be no doubt about his presence in the fight. 31. Now come the appellants who are unrepresented in this Court. They are six in number, namely Mehar Singh, Hardewa, Purna, Siria and the two Sukhrams. 32. As regards Mehar Singh we have at least six witnesses testifying to his presence in the riot. His presence on the spot is therefore entirely assured. 33. 31. Now come the appellants who are unrepresented in this Court. They are six in number, namely Mehar Singh, Hardewa, Purna, Siria and the two Sukhrams. 32. As regards Mehar Singh we have at least six witnesses testifying to his presence in the riot. His presence on the spot is therefore entirely assured. 33. Hardewa is identified by at least 5 and is presence may therefore be taken as established. 34. As against Purna there is but the testimony of Niaz Ahmad. I would acquit him. 35. As against Siria we have three witnesses namely Chhote, Niaz Ahmid and Masita who prove his presence. I hold that he was present in the riot. 36. As against Sukhram, son of Chhajju, he has but one witness against him namely Chhote Singh. I would acquit him. 37. As against Sukhram, son of Sarjit, there is no evidence whatsoever. He must, therefore, be acquitted. 38. Now the question is whether the nine persons namely Shera, Mangal, Shadi, Bhagwana son of Behari, Sukha Debi son of Behari, Mehar Singh, Hardewa and Siria ought to be convicted of any offence and if so of what offence. I have already held that the whole affair was the outcome of a grim error which has resulted in maltreatment of six officers of the Government But the question is whether these men are to be (sic)iflced simply because six honest Government servants have suffered at their hands whether the act may be excused on the sound of want of true knowledge on the part of the accused persons. This brings me to the consideration of the law on the subject The first section to be considered is Section 333 of the Indian Penal Code. It is not necessary to consider at present whether Section 332 is applicable or Section 333. The learned Magistrate has discussed the point very clearly in his judgment and I am entirely at one with him in thinking that Section 332, when it is applied with Section 149 to the circumstances of the present case, is the more appropriate section. However both the sections require as an ingredient of the offence, the presence of an intention on the part of the accused persons, namely, to prevent or deter a public servant from discharging his duty. However both the sections require as an ingredient of the offence, the presence of an intention on the part of the accused persons, namely, to prevent or deter a public servant from discharging his duty. If the accused persons were unaware of the fact that the persons confined were public servants the offence has not been committed. 39. Now coming to Section 148 it is clear that the accused persons were armed with lathis, for most of the injuries deposed to by the Civil Surgeon were caused by lathi blows. It does not appear that the lathis were actually produced and every lathi cannot be a deadly weapon. Section 148 further involves an offence u/s 147 in which there must be a common object and there must be an unlawful assembly. The common object in this case was the arrest of persons believed to be dacoits or robbers who wanted to enter the house of Debi on the supposed pretext of searching for dacoits. The persons, therefore, who opposed these men were acting for the protection of property and the question is whether they exceeded the right of their private defence. Even where a right of private defence is not pleaded, the court on finding on the evidence before it, that the accused acted in the exercise of his right of private defence, is bound to take cognizance of this fact; vide Yusuf Husain v. Emperor (1918) 40 All. 284=16 A.L.J. 169=44 I.C. 675=19 Cr.L.J. 371. There is no right of private defence against an act of a public servant acting in good faith and under colour of his office, although that act may not be strictly justifiable in law. In this case the Police Officers did nothing as to which it can be said that it was not strictly justifiable in law. The fact that they had not uniforms on will not make their act illegal. But there still exists a right of private defence under Explanation I of Section 99 of the Indian Penal Code in a case where the alleged offender does not know and has no reason to believe that the person doing the act was a public servant. 40. This explanation therefore covers the present case. 41. The only act which is involved in the charge u/s 148 is the commission of the offence of rioting being armed with a deadly weapon. 40. This explanation therefore covers the present case. 41. The only act which is involved in the charge u/s 148 is the commission of the offence of rioting being armed with a deadly weapon. No charge of illegal confinement was laid against the accused persons. The right of private defence against property continues where robbery is attempted, only so long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or instant hurt or of instant personal restraint continues. After the police officers were ejected from the premises of Debi it would appear that the right of private defence of property ceased. In the course of the ejectment came the fight and a revolver was used. Thus the right of private defence of person came into existence and continued so long as the danger to the persons continued. 42. Now the question is whether the accused persons had any right to confine the Police Officers after the right of private defence of person and property ended. 43. This brings me to the consideration of the provisions to be found in the Criminal Procedure Code as to the right of arrest by private persons. According to Section 159 of the Code of Criminal Procedure (before it was amended), a private person could arrest any man who in his view committed a non-bailable and cognizable offence and who had been proclaimed as an offender. In this case the villagers believed that the police officers were dacoits-armed robbers, who had in the attempt to escape arrest used a revolver. The supposed offence was, therefore, non-bailable and cognizable, being an offence u/s 392 of the Indian Penal Code, They were, therefore, entitled to arrest the men and keep them in confinement so long as that was necessary for making them over to the custody of Police Officers. I have already stated that Shera and Mangal were despatched to move the authorities. The villagers therefore made every attempt to bring the matter to the notice of the proper authorities. They did not know and. could not know whether Shera and Mangal went to the Police Station or direct to the District Magistrate but this is really immaterial. The confinement of the Police Officers was not under the circumstances unnecessary. The villagers therefore made every attempt to bring the matter to the notice of the proper authorities. They did not know and. could not know whether Shera and Mangal went to the Police Station or direct to the District Magistrate but this is really immaterial. The confinement of the Police Officers was not under the circumstances unnecessary. It would have been considered dangerous to carry them bodily to the Police Station of Bhopa. The confinement, therefore, was justified. It follows that no offence under the law was committed by the nine persons whose presence has been established in the riot, by reasonably good evidence. 44. In this connection the provisions of Section 79 I. P. C. are also very relevant. It lays down that nothing is an offence which is done by any person...who by reason of a mistake of fact,...in good faith, believes himself justified by law in doing it. This rule protects the 9 men, who would be otherwise convicted, from conviction of any offence under the Indian Penal Code. 45. My finding being that no offence has been committed by Shera, Mangal, Shadi, Bhagwana, Sukkha, Debi, Mehar Singh, Hardewa and Siria, they cannot be punished although they took part in the riot and the confinement of the Police Officers. Under the circumstances it is not necessary to consider what would have been the suitable punishment in the case of conviction. 46. The result is that the appeals of all the appellants succeed. I set aside the convictions and sentences, and order the appellants release. 46. It is but fair to the 6 Police Officers concerned in the tragedy to mention that the trouble that came to them was unprovoked, by any unlawful act.