JUDGMENT : Rao, J. - This appeal was heard on 2-10-1958 and at the dose of the hearing I was of opinion that the prosecution failed to prove the offences with which the Appellant was charged. I accordingly ordered that the Appellant be acquitted and the convictions and the sentences be set aside and directed that he be set at liberty forthwith observing that reasons would follow. The reasons are as follows. 2. The Appellant Madanlal Agarwalla who was the first accused before the trial court filed this appeal against his convictions and sentences u/s 3 of the Explosive Substances Act and under Sections 326 and 324 of the Indian Penal Code by Shri B.R. Rao, Assistant Sessions Judge, Balangir. He was sentenced to five years rigorous imprisonment for the offence u/s 3 of the Explosive Substances Act, to three years' rigorous imprisonment and a fine of Rs. 1001/- in default to rigorous imprisonment for one month more for the offence u/s 326, I.P.C. and to one year's rigorous imprisonment for the offence u/s 324, I.P.C. The sentences for the offence u/s 3 of the Explosive Substances Act and Section 326, I.P.C. are to run consecutively while the sentence for the offence u/s 324, I.P.C. shall run concurrently with the sentence for the offence u/s 326, I.P.C. 3. The Appellant along with three others acquitted by the trial Court was charged for having committed offences u/s 19-F of the Indian Arms Act, Section 3 of the Explosive Substances Act, and Sections 307, 324, 326 and 34 of the Indian Penal Code. The three other accused were acquitted by the learned Assistant Sessions Judge on all the charges. The Appellant was also acquitted on charges u/s 19-F of the Indian Arms Act and Section 307 of the Indian Penal code, but was convicted and sentenced as already stated on the other three charges. 4. The prosecution case is that the first three accused, Madanlal Agarwalla, Dungarmal Agarwalla and Parameswari Agarwalla are Marwaris and hail from village Biwani in Hissar district of the Punjab (India) and the other accused persons Kuber Sahu belongs to the village Sargiguda in Balangir district. It is stated that these four accused persons got down together at Muribahal Railway Station from the train coming From Titlagarh in the evening of Saturday, 9-1-1954. It is stated that these four accused persons got down together at Muribahal Railway Station from the train coming From Titlagarh in the evening of Saturday, 9-1-1954. They then proceeded by walk upto the village Gudighat, followed by Makhna Harpal (P.W. 13) who is a resident of village Gudighat and who also got down from the same train. These accused persons, according to the prosecution, were seen by Bansidhar Singh Majhi (P. W. 9) and Sitaram Bindhani (P. W. 11) at Gudighat before the sunset time near the betel shop of Sitaram (P. W. 11), going towards Tikarpara. Accused Parameswari went to the betel shop and asked P.W. 11 for tea but was told that no tea was prepared in the shop. P.W. 11 enquired from the accused Kuber Sahu where they were all going and was told that the accused Dungarmal was a Truck Driver and that they were all going for Patnagarh in a case for overloading a truck with rice. The prosecution case further is that later in the night of that day these four accused persons were seen by the villagers of (sic) in a room in the incomplete new house of Anaba Mahanand (P. W. 1) of that village. They were first found in that room talking in whispering tones, by Matwali Majhi (P. W. 4) who was the Halia of Anaba (P. W. 1) while P.W. 4 was going to the Khala to sleep. On hearing those whispering sounds he went and informed his master (P. W. 1) who then called his other Halias P.W. 5 and another and went to that new house with a lantern. When questioned by P.W. 1 as to who they were and where they were going, it is stated, the Appellant replied that they were going to Patnagarh to engage a lawyer in a case matter. But according to P.W. 1 as some suspicion arose ill his mind, he sent his Halia Mahanti Mugri and Matwali Majhi (P. W. 4) to call the choukidar, the Jhankar and other villagers. The Markand Jhankar (P W. 3), Tengnu Mugri (P.W. 10), Laxmidhar Chinda (P.W. 18) and some other villagers came there to know who these strangers were. It appears that the Appellant also told the villagers on enquiry that the accused persons were going to Patnagarh in a case matter. The Markand Jhankar (P W. 3), Tengnu Mugri (P.W. 10), Laxmidhar Chinda (P.W. 18) and some other villagers came there to know who these strangers were. It appears that the Appellant also told the villagers on enquiry that the accused persons were going to Patnagarh in a case matter. But the villagers also, according to the prosecution case, suspected the accused persons and at the suggestion of P.W. 1, the Jhankar (P. W. 3) went in that night to Tikarpara Outpost to report the matter to the Police. Some of the villagers kept watch over the accused persons throughout that night. P.W. 3 reported the matter at Tikarpara Outpost to the constable Gangadhar Nayak (P. W.26) who was then in charge of the outpost due to the absence of the Assistant Sub-Inspector K.C. Nanda (P. W. 23) who went to Titlagarh for giving evidence. But the constable simply asked the Jhankar to watch the accused persons and to bring them to the outpost if anything suspicious was found or to leave the accused persons after entering their names in the Kunua Bahi (Stranger's Register) if nothing suspicious was found. P.W. 3 returned to the village (sic) in the next morning of Sunday 10-1-1954. He and the other villagers took the four accused persons from P.W. 18 new house to the ex-Gountia Minaketan Pujhari (P. W. 2) for the purpose of interrogating and search. They met the Gountia on the way in the outer courtyard of Tengnu Mugri's (P. W. 10) house. It is stated that accused Parameswari was holding the bag (M.O. I.) in his hand. P.W. 2 asked the Jhankar (P.W. 3) to search the contents of that bag and proceeded to enquire from the accused persons about their names and addresses for noting in the Strangers Register (M.O. VII). The Jhankar took the bag from the accused Parameswari and opened it. He found a smaller bag (M.O. II) inside the bigger bag (M.O. I). On opening the smaller bag he brought out from it five round articles appearing like balls of jute thread. He placed four of those balls on the ground and was examining the fifth one by holding it in his hand. P. W. 1 took two out of the four balls kept on the ground and began to examine them. They suspected that those balls were heavy. He placed four of those balls on the ground and was examining the fifth one by holding it in his hand. P. W. 1 took two out of the four balls kept on the ground and began to examine them. They suspected that those balls were heavy. Then the Appellant saying that those balls were nothing but balls of jute thread, snatched away the ball held by the Jhankar (P. W. 3) and began to ones out the thread. While doing so, he was saying that it was simply a jute thread ball and was proceeding towards the place where P.W. 2, P.W. 10 and others were sitting. In the meanwhile the accused Kuber Sahu snatched away the two balls held by P.W. 1. Kuber and the other two accused persons Dungarmal and Parameswari went behind the Appellant Madanlal while the latter Was going towards Minaketan and others opening the ahead of the ball. It is the prosecution case that the Appellant saying that he would burn the village dashed the ball in his hand to the ground. The ball exploded giving a big noise and emitting huge smoke. As a result of this explosion P. W.'s 2, 3, 8, 10, 20 and one Manoharlal Sarma of Kantabanji who was also there received simple injuries and P.W. 12 received grievous injury. It is stated that soon after the explosion the three Marwari accused persons, the Appellant, Dungarmal and Parameswari ran away towards the Patra Jungle to the north of the village and the other accused Kuber Sahu ran away in another direction carrying with him the two jute balls which he snatched from the hands of P.W. 1. The prosecution case is that the villagers including P.Ws. 1, 3, 4, 5, 6, 19 and 21 pursued the accused Marwari persons. P.W. 1 did not continue the pursuit as the Appellant took out a pistol (M.O. III) and tried to shoot with it at P.W. 1 who being afraid that he might be killed retreated. The other villagers however continued to pursue though the Appellant was pointing out the pistol and was trying to shoot at them. It is stated that these accused persons were overtaken by the villagers on the exit at the land of Tengnu Mujgri just near the Patra Jungle and were caught. P.Ws. The other villagers however continued to pursue though the Appellant was pointing out the pistol and was trying to shoot at them. It is stated that these accused persons were overtaken by the villagers on the exit at the land of Tengnu Mujgri just near the Patra Jungle and were caught. P.Ws. 3 and 4, that is, the Jhankar and Matwali Majhi caught hold of the Appellant Madanlal, threw him down and recovered from him two live cartridges (M.Os. V & V-b). P. Ws. 5 and 21 caught hold of the accused Parameswari and recovered the knife (M.O. IV) from him. It is also stated that there was also some struggle between the accused persons and the villagers at the time of this catching during which the accused persons received some injuries on their persons. The villagers then tied the accused persons with cloths and chadars and brought them to the village and kept them on the Goth Bata (the place for collecting cattle before taking them for grazing). The pistol, the catridges and the knife which were recovered from the accused persons were handed over to P.W. 1. The other accused persons Kuber Sahu made good his escape by diverting the attention of P.W. 19 by saying "Tiger, Tiger". After the three Marwari accused were caught, P.W. 1 sent P.W. 4 to Gudighat to report about the incident to the Assistant Sub-Inspector hoping to find him in that village. He also sent P.W. 5 to Tikarpara Outpost to report about the occurrence. The Assistant Sub-Inspector (P. W. 23) on bearing at Gudjghat about the (sic) incident came to the village and recorded the statement (Ext. 12) of P.W. 1 and proceeded to investigate into the matter. He visited the place of explosion and found there the two jute thread balls and some glass and stone splinters, burnt rags and jute threads. He seized those articles from that place as also the two bags (M.Os. I and II) which were lying at the place of explosion. Then he seized the pistol, the cartridges and the knife on production by P.W. 1 which were recovered from the three Marwari accused persons. The seizure list (Ext. 1) was prepared for all these articles. After the seizure of the pistol, he examined it and found a cartridge (M.O. V-c) inside its chamber with two striker marks on the cap. Then he seized the pistol, the cartridges and the knife on production by P.W. 1 which were recovered from the three Marwari accused persons. The seizure list (Ext. 1) was prepared for all these articles. After the seizure of the pistol, he examined it and found a cartridge (M.O. V-c) inside its chamber with two striker marks on the cap. He also seized some personal belongings of the three accused persons Madanlal, Dungarmal and Parameswari under the seizure list (Ext. 8) as also the Stranger's Register (M.O. VII). P.W. 5 who was sent to Tikarpara Outpost by P.W. 1 gave an oral report to the constable (P. W. 26) who was in charge of the Station and who made the station diary entry (Ext. 16). He then sent the report (Ext. 14) to the Sub-Inspector, Saintala, which is treated as First Information Report in the case. The Sub-Inspector of Saintala drew up the formal First Information Report (Ext. 14-a) on the report Ext. 14 and registered a case u/s 324, I.P.C., proceeded to the spot and took over charge of the investigation of the case from the Assistant Sub-Inspector at 12 noon. He sent the three accused Marwari persons to the Medical officer, Titlagarh for examination of their injuries. He sent a requisition to the Titlagarh Sub-Inspector (P. W. 14) to search the house of the accused Kuber Sahu and to arrest him. P.W. 14 searched Kuber's house but did not find anything incriminating. He also arrested Kuber Sahu. 5. A test identification parade was held by a First Class Magistrate (P. W. 7) on 28-1-1954, the identifying witnesses being P. Ws. 2, 3, 4, 6, 9, 10 and 11. Ext. 2 is his report. Another identification parade was conducted by a Third Class Magistrate (P. W. 16) in Titlagarh Sub-Jail on 30-3-1954, the identifying witnesses being P. Ws. 5, 12 and 13. Ext. 2-a is his report. By his letter (Ext. 19) dated 6-2-1954, the Superintendent of Police, Balangir sent the seized pistol and the cartridges to the D.I.G., C.I.D., Bihar for an examination by the ballistic expert and for a report on the points mentioned in that letter. P.W. 28, the Government Fire Arms Expert submitted his report (Ext. 23) with the photo micro-graphs (Exts. 23-a and 23-b). 19) dated 6-2-1954, the Superintendent of Police, Balangir sent the seized pistol and the cartridges to the D.I.G., C.I.D., Bihar for an examination by the ballistic expert and for a report on the points mentioned in that letter. P.W. 28, the Government Fire Arms Expert submitted his report (Ext. 23) with the photo micro-graphs (Exts. 23-a and 23-b). The Superintendent of Police also sent the two jute balls and the other splinters and wooden piece from a bench recovered from the place of explosion to the Inspector of Explosives, Eastern Zone, Calcutta for an examination and report on the points mentioned in that letter. Ext 20 is that letter dated 6-2-1954. The Explosive Inspector (P. W. 27) examined these articles and gave his report (Ext. 22). The investigation was supervised by P.W. 22, the Circle Inspector who during his supervision seized a bench with a broken leg and some splinters and rags from the outer courtyard of Tenguu Mugri's house on 12-1-1954, as per seizure list Ext. 11. The piece of plank (M.O. VIII) which was later on sent to the Explosive Inspector is a part of the bench. 6. The Medical Officer of Kantabanji examined the injured persons and submitted his injury reports (Ext. 21, 21a, 21b, 21c, 21d, 21g & 21h). Exts. 5 to 5b are the certificates of injuries on the persons of the accused Madanlal, Dungarmal and Parameswari. 7. The Appellant pleaded not guilty to all the charges. He stated that he came to Titlagarh in search of a bride for him as his wife died on 8-4-1952 in New Delhi as per the certificate (Ext. Exts. 5 to 5b are the certificates of injuries on the persons of the accused Madanlal, Dungarmal and Parameswari. 7. The Appellant pleaded not guilty to all the charges. He stated that he came to Titlagarh in search of a bride for him as his wife died on 8-4-1952 in New Delhi as per the certificate (Ext. A) and as he wanted to marry another wife without much expense; that one Kapil (Kuber) Sahu of Titlagarh promised to arrange a bride for him; that he met Parameswari accidentally at Kantabanji and both of them went to meet Dungarmal at Rupsa Road; that all these three accused boarded the night train at Rupsa Road in the night of 9-1-1954 and came up to Titlagarh Railway Station where they met Kapil (Kuber) Sahu who also got into that train; that all these four persons went in that train and got down at Muribahal Railway Station in the early morning of 10-1-1954; that from Muribahal they were proceeding towards a village to meet one Panalal as suggested by Kapil (Kuber Sahu), that on the way at about 7 A.M. some villagers met them and began to abuse them saying that they were looting the villagers; that the accused persons protested and there was exchange of words; that he got angry and gave a slap to one of the villagers, in consequence of which there was a quarrel; that meanwhile some more villagers came to the spot armed with lathis and Thengas and began to assault the accused persons and the Appellant received a Tangia blow on his head and became unconscious; that the villagers over-powered them, tied by their hands and took them to the village; and that the Assistant Sub-Inspector came to the village in the afternoon at about 2 P.M. and arrested the three accused persons. The Appellant denied having gone to (sic) in the night of 9-1-1954 as also possession of any explosives or fire arms or knives. He denied the occurrence as also the pursuit and recovery of the pistol, the cartridges and the knife. With regard to the test identification parade, he stated that he was previously shown to the witnesses by the police and that the police officers were present at the time of the parade. 8. Mr. He denied the occurrence as also the pursuit and recovery of the pistol, the cartridges and the knife. With regard to the test identification parade, he stated that he was previously shown to the witnesses by the police and that the police officers were present at the time of the parade. 8. Mr. Chatterji, learned Counsel for the Appellant contends that the prosecution evidence is not sufficient to bring home the guilt to the Appellant; that the entire evidence given in the case is contrary to the version disclosed in the First Information Report (Ext. 14) lodged at the Police Station by P.W. 5; that the case of the prosecution relating to the possession of the explosive substance and the subsequent explosion of the same by the Appellant appear to have been concocted after the Assistant Sub-Inspector (P. W. 23) went there; and that in any event even if the prosecution is held to have proved the explosion of the bomb by the Appellant, the evidence discloses that he was not the person found in possession of the same and that he is protected by right of private defence. 9. Ext. 16 is the station diary entry dated 10-1-1954 made on the information given by P.W. 5. After making the station diary entry, the constable in charge of the Outpost Gangadhar Naik (P. W. 26) sent a report to Saintala Police Station which is Ext. 14 and on the strength of that report the First Information Report (Ext. 14-a) was drawn up by the Sub-Inspector in charge of Saintala Police Station who proceeded afterwards to investigate and took over the investigation from the Assistant Sub-Inspector who was there by that time. The First Information Report gives the version of the occurrence as some stranger having gone to the village and in consequence of which there was some fight and the villagers were injured by shooting of a pistol. Nothing is mentioned about the explosion of a bomb or the receipt of injuries by several persons by the splinters of the bomb. The names of the injured persons also are not stated therein. P.W. 5, according to his evidence, heard the explosion from his fields nearby and came there immediately afterwards. Nothing is mentioned about the explosion of a bomb or the receipt of injuries by several persons by the splinters of the bomb. The names of the injured persons also are not stated therein. P.W. 5, according to his evidence, heard the explosion from his fields nearby and came there immediately afterwards. He also stated in his evidence that P.W. 1 did tell him before sending him to the Tikarpara Outpost that 4 or 5 persons of the village were injured as there was an explosion. He was also a person who pursued the accused when they were running away. The earliest version therefore of the P.W. 5 who was in a position to know before he went to the Police Station about the occurrence and who was sent there by P.W. 1 who was a witness to all that happened was that there was a fight and some persons were injured on account of a pistol shooting. The present prosecution version is contained in Ext. 12, a report recorded by P.W. 23, the Assistant Sub-Inspector of Tikarpara Outpost from P.W. 1. It is in this report Ext. 12 for the first time the story of the possession of the bomb, the subsequent explosion and the injuries caused to several persons were recorded. 10. Mr. Chaterji, the learned Counsel for the Appellant, contends that Ext. 12 is not admissible in evidence as being a statement recorded u/s 161 of the Code of Criminal Procedure He submits that there was a definite information at the Tikarpara Outpost which was entered in the station diary and a written report was sent to the Saintala Police Station by the constable in charge of Tikarpara Outpost. That having been marked as the First Information Report (Ext. 12), according to Mr. Chatterji, is not admissible in evidence. Mr. A.K. Das, the learned Counsel appearing for the Public Prosecutor of the State submits that Ext. 1-2 should be treated as the First Information Report inasmuch as the information conveyed by P.W. 5 cannot amount, under the circumstances of the case, to first information. He relied upon a decision in the case of In re Mylaswami Chetty AIR 1939 Mad 66. In this case, a Sub-Inspector of Police on receiving information of a shooting case from a constable entered the information in his diary and proceeded to enquire into the matter. He relied upon a decision in the case of In re Mylaswami Chetty AIR 1939 Mad 66. In this case, a Sub-Inspector of Police on receiving information of a shooting case from a constable entered the information in his diary and proceeded to enquire into the matter. The Sub-Inspector on his arrival at the spot took the statement of a witness. When this statement was being produced in evidence, it was contended that the statement was recorded during an investigation and was therefore in admissible u/s 162. But a Division Bench of the Madras High Court consisting of Burn and King JJ., held, that the said statement was admissible inasmuch as it could not be said to have been recorded in the course of an investigation into an offence and so admissible in evidence; and that whether a statement was recorded during an investigation or not was a question of fact. In the course of the judgment, Mr. Justice Burn observed: The Sub-Inspector had no information of the commission of a cognizable offence when he went to the house of the deceased. He was merely told that there had been a shooting incident; whether the shooting was due to accident or design he did not know. When he got into the house he saw the corpse of Kuppuswami Chetti in the open yard at the back and according to his evidence he then took down a statement, Ext. B, from P.W. 1. Now it is clearly only after recording the statement that the Sub-Inspector can have any real information of the commission of the cognizable offence. It is impossible to say that this statement was recorded by the Sub-Inspector in the course of an investigation into this offence. This observations of Mr. Justice Burn clearly distinguish the facts of the case from the facts present in the case before me. P.W. 5 did report the commission of a cognizable offence at the Tikarpara Outpost. Ext. 14, the report sent by the constable on the basis of that information which was entered in the station diary also shows that cognizable offence was committed. Therefore, in my opinion, Ext. 12 is a statement which comes u/s 162, Code of Criminal Procedure and is not admissible in evidence. Ext. 14, the report sent by the constable on the basis of that information which was entered in the station diary also shows that cognizable offence was committed. Therefore, in my opinion, Ext. 12 is a statement which comes u/s 162, Code of Criminal Procedure and is not admissible in evidence. Further the Assistant Sub-Inspector (P. W. 23) stated that he heard some gossip in the market and then proceeded to the village, after which he recorded the statement Ext. 12. There is no evidence from whom he heard that information. Even if Ext. 12 is admissible in evidence, it does not in any way, in my opinion, improve the prosecution case. The version of the occurrence given in Ext. 12 materially differs from that given in Ext. 14a. The two versions are quite contrary to each other. In my opinion, therefore, the prosecution case as put forward in the trial differs completely from that given in the First Information Report (Ext. 14a). Mr. Chatterji relied on a decision of this Court in support of his contention that in such cases the accused is entitled to an acquittal. In the case of Raghunath Pmdhan and Ors. v. State 24 C.L.T. 215. I held that when the story of the prosecution, as disclosed in evidence, materially differs from that of the First Information Report, it ought not to be accepted. The evidence in this case is that the Appellant exploded a bomb which injured several persons. The version disclosed in Ext. 14a is that there was some fight amongst the villagers and some strangers and a pistol shooting by the latter. The two versions are quite contrary to each other as to how the persons were injured. It is therefore necessary that the evidence in this case should be carefully scrutinised, as such evidence differing from the first information ought not to be generally accepted. 11. The case against the Appellant was that he was in possession of an explosive substance punishable u/s 3 of the Explosive substances Act and that he dashed the bomb in consequence of which it exploded and injured several prosecution witnesses. The evidence of the prosecution witnesses does not disclose that it was the Appellant who was in possession of the bag containing the bombs. The evidence of the prosecution witnesses does not disclose that it was the Appellant who was in possession of the bag containing the bombs. There are material contradictions in the evidence of the prosecution witnesses as to whether the Appellant dashed the bomb in consequence of which the explosion took place. The learned Judge discusses the evidence. XXX In the face of this specific evidence of the important prosecution witnesses, it is not possible to accept the prosecution case that the Appellant either dashed the bomb or was in possession of an explosive substance or that the Appellant was pursued when he pointed a pistol at the pursuers and afterwards he was caught and the pistol and other things seized from him. 12. According to the prosecution evidence, one Marwari named Manoharlal Sarma was present at the scene of occurrence. He also received injuries. He was not examined as a witness. The Public Prosecutor who conducted the case before the learned Assistant Sessions Judge did not ask for coercive process to be taken to Manoharlal Sarma when the service was returned with the endorsement that he was not present and that he left the village. Public Prosecutors conducting sessions cases should not so lightly dispense with the examination of material prosecution witnesses. The arms of the State are long enough to know the whereabouts of the witness and it is the duty of the prosecution to procure the attendance of material witnesses. His non-examination is rightly commented upon by Mr. Chatterji as militating against the case for the prosecution. P.W. 8 is a mere school boy and his evidence shows that he is a liar. Though some of the witnesses stated that the Appellant said that he would burn the village before he dashed the bomb, yet P.W. 2 did not say anything about this. P.W. 2 could not also identify the person who dashed the bomb. 13. The Assistant Sub-Inspector seized the splinters and other things at the scene of occurrence an 11-1-1954 at the house of P.W. 10 and it is curious that these articles were sent to the expert by the Superintendent of Police on 6-2-1954 more than 25 days afterwards. The action of the responsible Police officers should be above suspicion. 13. The Assistant Sub-Inspector seized the splinters and other things at the scene of occurrence an 11-1-1954 at the house of P.W. 10 and it is curious that these articles were sent to the expert by the Superintendent of Police on 6-2-1954 more than 25 days afterwards. The action of the responsible Police officers should be above suspicion. It was incumbent upon the Investigating Officer to see that the incriminating articles seized at the scene of occurrence are sent to the expert at the earliest moment instead of taking his own time to send the same. 14. P.W. 22, the Circle Inspector of Police came to the scene of occurrence the next day, seized the bench on which P.W. 2 was sitting and sent a plank charred with explosion to the expert (P. W. 27). The evidence of P.W. 27 is referred to.xxx On this evidence of P.W. 27, the prosecution case that the Appellant or the other accused carried the bombs in a bag; that at the scene of occurrence they were taken from one person by another and some were placed on the ground; and that the Appellant dashed it on the ground appears to be not acceptable. They are very sensitive and they may explode even if one seizes the same from the hands of another. They cannot be caught hold of in the hands and persons may not be able to run with them. On this evidence, it is not safe to accept the prosecution case. 15. The evidence of the Medical Officer also creates a doubt whether the injuries on the injured persons could have been caused by explosion of a country-made bomb. The learned Judge discusses the evidence of P.W. 26 the Medical Officer.... Consequently as contended by the learned Counsel for the Appellant, doubt is cast upon the prosecution case whether these injuries were the result of injuries caused by explosion of a bomb. 16. Mr. Chatterji next contended that the identification parades held were also not according to law; and that some of the prosecution witnesses could not identify all the accused persons. There is evidence that a police officer was present at the time of the first identification. Three of the accused persons hail from the Punjab and are Marwaris. Persons of similar descriptions were not included with them at the time of identification. There is evidence that a police officer was present at the time of the first identification. Three of the accused persons hail from the Punjab and are Marwaris. Persons of similar descriptions were not included with them at the time of identification. The Appellant is stated to be a tall man (Denga). That was the only mark of identification relied upon by some of the prosecution witnesses. There is no evidence whether tall people were mixed up with the Appellant at the time of identification. The identification of the Appellant at the identification parades also cannot carry any weight under these circumstances. 17. Lastly, Mr. Chatterji contended that the Appellant was protected by the right of private defence. It is the prosecution case that on the night the accused were found in the new unfinished house of P.W. 1, they were kept under watch. The next morning they were compelled to go to the Gountia, for search and interrogation. They were taken there by the villagers including the Jhankar. These facts show that the Appellant was practically in wrongful confinement. None of the persons who took them is entitled to arrest any of the accused persons. Nobody is entitled to search them. Under those circumstances, Mr. Chatterji contends that the Appellant cannot be held to be guilty even assuming that he dashed a bomb and escaped as he was in wrongful confinment and he acted with a view to escape. In the case of Parankusan Narasaya Pantulu v. Captain R.A.C. Stuart and Anr. 2 Madras H.C. Reports 396 a Division Bench of the Madras High Court consisting of Holloway and Innes, J.J. held: The retaining of a person in a particular place, or the compelling him to go in a particular direction by force of an exterior will overpowering or suppressing in any way his own voluntary action, is an imprisonment on the part of the person exercising that exterior will. In the course of the judgment, the learned Judges observed: It is manifestly not necessary to constitute imprisonment that there should be a continuous application of superior physical force. In the felicitous language of Mr. In the course of the judgment, the learned Judges observed: It is manifestly not necessary to constitute imprisonment that there should be a continuous application of superior physical force. In the felicitous language of Mr. Justice Coleridge, "it is one part of the definition of freedom to be able to go whithersoever one pleases, but imprisonment is something more than the mere loss of this power; it includes the notion of mere loss of this power; 'it includes the notion of restraint within some limits defined by a will or power exterior to our own". Mr. Justice Williams, in his judgment, puts a case almost precisely similar to the present as an example of imprisonment, It is quite clear, therefore, from the full discussion which the subject received in that case, that the retaining of a person in a particular place, or the compelling of him to go in a particular direction by force of an exterior will overpowering or suppressing in any way his own voluntary action, is an imprisonment on the part of him who exercises that exterior will, 18. The dashing of the bomb was, according to Mr. Chatterji, to facilitate an escape from wrongful confinement. Under these circumstances, he submits that the Appellant is entitled to make good his escape even by throwing a bomb. His intention in so doing is for purposes of effecting his escape and not for the purpose of injuring anybody, u/s 97 of the Indian Penal Code, every person has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of any other person, against any offence affecting the human body. Wrongful confinement is an offence affecting the human body and if the Appellant apprehended when he was being taken along with the other accused surrounded by the villagers for purposes of interrogation and search and when none of the persons so taking him was either entitled to arrest or search his person, the Appellant is entitled to make good his escape and if in so doing he causes injury to others by his act, he cannot be held guilty. If the prosecution evidence lends support to this contention, it is not necessary that the accused should prove beyond all possibility of doubt that he acted in exercise of the right of private defence, It is enough if a reasonable case is made out that he acted in the exercise of the right of private defence. In the case of Narayan Raut Vs. Emperor a Division Bench of the Patna High Court held: When the accused person pleads the right of private defence it is not necessary that he must prove beyond reasonable doubt the existence of the circumstances on which the right is founded. The accused need merely make out a prima facie case. In other words, it is sufficient if he satisfies the Court of the probability of what he is called upon to establish. It is not necessary for the accused to lead evidence if he is able to establish what he seeks to prove by the evidence that is on the record. If from that evidence it appears probable that the defence version s true, he is entitled to a decision in his favour even though he has not proved the truth of his version beyond reasonable doubt. Further on the self-same evidence, the learned assistant Sessions Judge acquitted three of the accused charged along with the Appellant. He did not accept the evidence with regard to the three accused persons who were acquitted. Mr. Chatterji therefore contends that on that evidence the convictions of the Appellant cannot be maintained. I think, there is some force in this contention. 19. For the reasons stated, I am of opinion that the convictions and sentences of the Appellant cannot be upheld. I therefore set aside his convictions and sentences under Sections 326 and 324 of the Indian Penal Code and Section 3 of the Explosive Substances Act. The Appellant is entitled to an acquittal of those offences. It is for these reasons that the convictions and sentences of the Appellant were set aside, he was acquitted and was directed to be set at liberty forthwith. Appeal allowed. Final Result : Allowed