Dhanna v. State of Rajasthan — 1963 DIGILAW 208 (RAJ)

Chhangani, J.—The eleven appellants along with one Hanuman were tried by the Sessions Judge, Jhunjhunu for offences under secs. 395, 332, 333 read with Sec. 149, Indian Penal Code. The learned Sessions Judge by his order dated 3rd January, 1963 gave benefit of doubt to Hanuman and found the appellants guilty and recorded the following convictions and sentences against each one of them— u/s 395 IPC.....................three years u/s 333 IPC.....................three years u/s 332 IPC............... .........one years The sentences were directed to run concurrently. Aggrieved by this judgment, they have filed this joint appeal. 2. The facts on which the appellants ware prosecuted may be briefly stated as follows— On 24th December, 1960 a case under sec. 457 and 380, Indian Penal Code, was registered at Police Station, Hansi in Punjab on the report of one Parmeshwari at No. 209. On 5th of January, 1961, Station House Officer, Police Station, Hansi Mr. Malik Dayanand deputed Mohanlal PW/9 Assistant Sub-Inspector of Police, Hansi, along with Jagdishlal, Assistant Sub-Inspector of Police, Hansi, and constables Satveer PW/10, Kaliram and Govindram, to proceed to Singhana to make some investigation. Mohanlal along with the above police officials as also with Parmeshwari PW/11, Sohanlal, Bhagchand and Juglal reached Singhana in connection with the investigation of the case under sec. 457 and 380 Indian Penal Code, of Police Code of Police Station, Hansi in the morning of 6th January, 1961. After reaching there, Mohanlal PW/9 sent a tehrir to the Incharge of the Police Station, Singhana, requesting for assistance in investigation. After sending the tehrir, he with the members of his party went to the mohalla of Meenas in village Singhana. The Station House Officer, Police Station, Singhana was not at Singhana and, Shri Sher Singh Head Constable PW/17 was incharge of the Police Station, Singhana, at the relevant time. Sher Singh along with constable Hanuman Singh left the Police Station, Singhana after making entry Ex. P. 2 in the Rojnamcha and reached the mohalla of Meenas of Singhana where Mohanlal and his party-men were waiting for them. Mohanlal and Sher Singh tried to trace out Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas of Singhana who were being suspected as being concerned in a theft case but they were not available at their houses. Mohanlal then thought of conducting the house searches of Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas. Mohanlal and Sher Singh tried to trace out Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas of Singhana who were being suspected as being concerned in a theft case but they were not available at their houses. Mohanlal then thought of conducting the house searches of Matadeen, Ramjilal, Gokal, Jagdish and Prahlad Meenas. Jagan PW/2 and Chandra PW/1 were summoned as motbirs and in their presence searches of the houses of Matadeen and Ramjilal were conducted. Matadeen and Ramjilal were not present at the time of the search but the searches were made in the presence of Mst. Jaraw wife of Matadeen and Mst.Patasi wife of Ramjilal. During the course of searches some clothes and cash amounting to 225/- were seized and taken into custody and were entrusted to constable Satveersingh. It may be mentioned here that the property which was seized and taken into custody was not identified by Parmeshwari PW/11 the complainant in the theft case who had accompanied the Punjab Police party in connection with the investigation of the case. According to Mohanlal this property was suspected to be of another theft case registered at the Police Station, Hansi. 3. After completing the searches of the houses of Matadeen and Ramjilal and recovering and seizing the properties, the police party proceeded towards the house of Prahlad and stood in a chowk in front of the house of Prahlad and were having consultations amongst themselves. In the meanwhile all of a sudden forty to fifty persons armed with Barchis and lathis including the present appellants attacked the police party and caused injuries to the members of the police party. Gokal, with whom we are not concerned in the present case, one of the assailants snatched the revolver possessed by Mohanlal PW/9, got on a wall and opened fire with that revolver. One bullet hit Satveer constable of Punjab Police force. The assailants injured Mohanlal, Satveer, Jagdishlal, Sohanlal, Sher Singh and others and further took away the property which was recovered from the houses of Matadeen and Ramjilal and taken into custody. They further took away the investigation file of the case No.209/60 under sec. 457 and 380, Indian Penal Code of the Police Station, Hansi, Government revolver, blankets, pagris, gun and cartridges from the members of the police force as also from others who had accompanied the police party. They further took away the investigation file of the case No.209/60 under sec. 457 and 380, Indian Penal Code of the Police Station, Hansi, Government revolver, blankets, pagris, gun and cartridges from the members of the police force as also from others who had accompanied the police party. The injured police officers went to Singhana Dispensary where first aid was rendered to them. On the advice of the Medical Officer of that Dispensary they went to Pilani and got their injuries examined and treated in the Birla Public Hospital. 4. It may be mentioned here that when the assault was going on Shersingh P.W./17 rushed to the Police Station, Singhana and made an entry Ex. P. 3 in the Rojnamcha stating the names of the appellants amongst the assailants and the fact of their having taken further aid and arms and leaving for the spot. He came back to the scene and then taking Satveer, who was at the house of some person in the neighbourhood, went to the dispensary. He also got himself examined for his injuries and then with the police force left in search of the assailants. He, however, prepared no first information report at that time. 5. At Pilani, the Station House Officer, Police Station, Pilani, having learnt of the occurrence went to the Birla Public Hospital and recorded statement of Mohanlal P.W./9 which was forwarded to the Police Station, Singhana, for registration of a case. On receipt of this report of Mohanlal with a forwarding letter from Police Station, Pilani, the Station House Officer, Singhana registered a case against 19 accused persons. 6. The medical examination revealed the following injuries on the persons of the various injured— Sohanlal— 1. Contusion 2" x 1" on the left leg upper third front. 2. Contusion 4" x 1" on the left buttock. 3. Contusion 3" x 1" right forearm upper half. 4. Contusion 5" x 1" right side back. 5. Contusion 1" x 1" on left side of head. 6. Contusion 1" x 1" on the bridge of nose. 7. Contused lacerated wound 2" x 1/4" by scalp deep in the top of head. 8. Contusion 1" x 1" upper lip. Mohanlal— 1. Contusion 3" x 1" with fracture of right ulna (right forearm). 2. Contusion 3" x 1" with fracture of left ulna in the left forearm. 3. Contusion 4" x 1" on right arm. 4. 7. Contused lacerated wound 2" x 1/4" by scalp deep in the top of head. 8. Contusion 1" x 1" upper lip. Mohanlal— 1. Contusion 3" x 1" with fracture of right ulna (right forearm). 2. Contusion 3" x 1" with fracture of left ulna in the left forearm. 3. Contusion 4" x 1" on right arm. 4. Abraded contusin 2" x i" with fracture of the Patella and Femur. 5. Abraded contusion 1" x 1" right knee. 6. Small contused lacerated wound left thumb. 7. Contused lacerated wound 2" x 1/8" x skin deep on the right side of head. 8. Contused lacerated wound 1" x 1/8" x skin deep on the left side of head. Jagdishlal 1. Contusion 4" x 1" on the back lower thoracic region. 2. Contusion 3" x 1" on the left calf. 3. Contusion 3" x 1 on the right calf. Satvir Singh— 1. Punctured wound 1/2" diameter—on the right side of chest near axilla— with laceration of skin around over 1/2" —radious with fracture of Ant. end of 4th rib and posterior l/3rd of 6th rib with pnumo-thorax. 7. After necessary investigation a charge sheet was submitted against twelve persons in the Court of the Sub-Divisional Magistrate, Khetri, for offences under sec. 395, 397, 307, 332, 333, 158, 148, 149 and 186, I. P.C. The other accused were said to be absconding. 8. The prosecution examined twenty witnesses and produced twenty seven documents in support of its case. 9. The accused denied their guilt and pleaded alibi. At the trial, on behalf of the accused, seven submissions were made for recording an order of acquittal in their favour. Broadly stated the case of the accused was that the searches made by Mohanlal and the members of the police party were in contravention of the provisions of sec. 166 Criminal Procedure Code, and were without jurisdiction and that the party of Meenas including the appellants if they are proved to have been the members of that party were justified in recovering the property back from the police officers in the exercise of the right of private defence of property. 166 Criminal Procedure Code, and were without jurisdiction and that the party of Meenas including the appellants if they are proved to have been the members of that party were justified in recovering the property back from the police officers in the exercise of the right of private defence of property. Secondly, their case was that in view of the delayed first information report, the conduct of Shersingh in not recovering any article from the possession of the accused and unsatisfactory nature of the evidence of identification by the witnesses other than Shersingh and the infirmities in the testimony of Shersingh, the participation of the appellants in the incident is not proved. 10. The trial Judge discussed the various statements made by the appellants and recorded the following conclusions— 1. Looking to all the circumstances the searches made by Satvirsingh PW/10 on the direction of Mohanlal, Assistant Sub-Inspector Police PW/9 were not in accordance with the provisions of sec. 166 and 165, Criminal Procedure Code. 2. To my mind the recoveries made by Mohanlal from the house of Ramji Lal and Matadeen were not legal. 3. The illegality of the seizure of the articles from the houses of Ramjilal and Matadeen cannot hold the accused in exonerating them of the guilt. The police party was not actually attacked while carrying out the illegal searches of the houses of Matadeen and Ramjilal. It was further observed in this connection that the accused not only took the possession of the properties which were recovered but they even carried away the case file, revolver etc. of the police employees of Police Station, Hansi which they had no right to carry away. 4. The Punjab Police employees were acting in good faith and under the colour of their office in taking the searches though they may not be strictly legal. 5. The learned Judge also over ruled the arguments made on the basis of the non-recovery of the articles, delay in lodging first information report, non-production of some of the persons who were admittedly present at the time of the incident and found no force in them. 6. 5. The learned Judge also over ruled the arguments made on the basis of the non-recovery of the articles, delay in lodging first information report, non-production of some of the persons who were admittedly present at the time of the incident and found no force in them. 6. As regards the identification of the accused by Jagdishlal PW/7, Mohan Lal PW/9 and Sohanlal PW/14, the trial Judge held that the evidence of identification by these witnesses was not very convincing and he utilised that evidence only for the purpose of corroborating the evidence of Shersingh PW/17. Sher Singhs evidence was found quite satisfactory by the Sessions Judge and finding corroboration of bis evidence by these witnesses, the learned Sessions Judge found all the appellants guilty. 11. The learned counsel for the appellants in the first instance contended that the appellants must be held to have acted in the exercise of the right of private defence of property in recovering the property from the police officers which was illegally seized. It was contended that Mohanlal PW/9 had no justification to take searches of the houses of Matadeen and Ramjilal. It was strenuously contended that he had no right to recover clothes and cash which were not identified by Parme-shwari PW/11 on whose report a case of theft was registered at the Police Station, Hansi. At any rate, recovery of cash was wholly arbitrary and malafide. It was urged in this connection that sec. 99 of the Indian Penal Code did not deprive the party of the Meenas including the appellants of their right of private defence of property inasmuch as the act of the police officer went beyond the limits of not being strictly justifiable and also that the police officers were not acting in good faith. 12. The learned Deputy Government Advocate on the other hand, contended that the police officers were acting in good faith under colour of the office and that irregularity in affecting searches and seizing property were not of a serious nature and they did not have the effect of making the act of the police officers without jurisdiction. Learned counsel for the appellant relied upon Prag vs. Emperor (1), Madra Damn vs. Emperor(2) and Nandsingh vs. The State(3). 13. Learned counsel for the appellant relied upon Prag vs. Emperor (1), Madra Damn vs. Emperor(2) and Nandsingh vs. The State(3). 13. The learned Deputy Government Advocate has relied upon Abdul Ghani vs. Emperor(4), Ahmd Subhan vs. Emperor(5), Narsayya Lachmayya vs. The State(6), Emperor vs. Gulabrai(7), Kandasasmi Goundan, In re (8), Ramji Ahir vs. Emperor (9), Emperor vs. Bhopo (10), In re Ganpathia Pillai(11) and Lachuman Singh vs. Emperor(12) on the question of the applicability of sec. 99, Criminal Procedure Code. 14. An examination of these cases shows that the learned Judges decided the question of the applicability of sec. 99, Indian Penal Code, on the facts and the circumstances of the particular case and it is unnecessary to notice all these cases in detail. For the proper enunciation of the principle embodied in sec. 99, Criminal P.C. it will be proper to refer to the oft quoted passage from Maynes Commentary on Criminal Law which reads as follows— "The word not strictly justifiable by law seems to point to cases where there is an excess of jurisdiction, as distinct from a complete absence of jurisdiction; to cases where an official has done wrongly what he might have done rightly; not to cases where the act could not possibly have been rightly done. Explaining the object of enacting sec. 99 Indian Penal Code, Ramaswami, J. in In Re-Ganapathia Pillai (11) made the following pertinent observations:— "Under sec. 99, Penal Code, it is enacted that (a) an act done or attempted to be done, (b) by a public servant, (c) acting in good faith, (b) under colour of his office, (e) though that act may not be strictly justifiable by law, does not give rise to the right of private defence. These clauses in favour of public servants rest partly on the probability that their acts will be lawful, in which case resistance must necessarily be unlawful; partly on the theory that resistance unnecessary since the law will set right what has been wrongly done in its name; and lastly on the ground that it is good for society that public servants should be protected in the execution of their duty even where they are in error. But in order to secure the protection of sec. But in order to secure the protection of sec. 99, I.P.C. it is essential that the act done or attempted to be done by a public servant must be (a) in good faith (b) under colour of his office, (c) though that act may not be strictly justifiable by law." Expressing my respectful agreement with the passage of Mayne quoted above,and the observations of Ramaswami, J. I may add that sec. 99, Indian Penal Code, is an attempt on the part of the legislature to reconcile the two rival needs- one of lending protection to the public servants in the exercise of their public duties which may sometimes be of a little difficult nature, even when there might be some errors in the discharge of those duties and the other, need of preventing the exercise of powers by the public servant from degenerating into pure arbitrariness and protecting the public from the arbitrary and capricious acts of the public servants and to strike a proper balance between them. It is on account of these considerations that the protection has been granted to only those acts which are not strictly justifiable in law has been denied to those acts which are ultra vires and have no legal basis. Similarly, sec. 99 Indian Penal Code, requires that before a member of the public can be deprived of the right of private defence it must be shown that the public servant was acting in good faith, Now the question whether a particular act is one which is not strictly justifiable by law or is one which is altogether without jurisdiction has to be determined on a consideration of the facts and the circumstances of each case. As regards good faith, bearing in mind the negative definition of "good faith" as given in sec. 52 of the Indian Penal Code, it must be safely stated that good faith has no reference to the moral elements of honesty and right motive which are involved in the popular significance of "good faith" and which are predominant in the positive definition enacted in the other Acts of the Legislature. To establish "good faith" under the Indian Penal Code it is necessary to prove that the person pleading good faith acted with due care and attention and an honest blunderer cannot be protected under sec 52 without establishing the exercise of due care and attention. To establish "good faith" under the Indian Penal Code it is necessary to prove that the person pleading good faith acted with due care and attention and an honest blunderer cannot be protected under sec 52 without establishing the exercise of due care and attention. Of course, good faith requires no logical infallibility but due care and attention. How far erroneous actions or statements are to be imputed to want of due care and caution must, in each case, be considered with reference to the general circumstances and the capacity and the intelligence of the person whose conduct is in question. 15. From the foregoing discussions, it follows; whether an act of a public servant falls within sec. 99, Indian Penal Code, or not, is in the ultimate analysis a question of fact to be determined on the facts and the circumstances of each case and it will be hardly proper to lay down any test in the abstract for deciding such a question. 16. Taking up the: question whether the act of Mohanlal was a mere irregular act not strictly justifiable by law or was an act completely lacking in jurisdiction, it will be proper to set out the following facts— That Mohanlal was an Assistant Sub-Inspector of Police in the employ of the Punjab Police Force. He came down to Singhana in connection with investigation of case No. 205 of 1960. He addressed a tehrir Ex. P. 1 to the Incharge of the Police Station, Singhana for rendering assistance in investigation. After the arrival of Shersingh Head Constable, incharge of the Police Station, Singhana, Mohanlal himself took the initiative in the matter of making searches and the searches were actually carried out by Satvir (PW/10).The learned Sessions Judge has observed that the searches conducted by Mohanlal were not in accordance with the provisions of secs. 165 and 166, Criminal Procedure Code. The learned Deputy Government Advocate, however, has disputed the conclusion of the Sessions Judge on this point and has contended that the searches in the present case cannot be said to be without jurisdiction. Sec. 165, Criminal P. G. provides for search by an officer incharge of the police station or certain other police officers subordinate to him within the limits of a particular police station and has no direct bearing in the present case. Sec. 165, Criminal P. G. provides for search by an officer incharge of the police station or certain other police officers subordinate to him within the limits of a particular police station and has no direct bearing in the present case. Sec. 166, Criminal P.C. provides for a case when an officer incharge of one police station stands in need of making a search in the limit of another police station. Sec. 166, Criminal Procedure Code reads as follows— "166. (1) An officer in charge of a police station or a police officer not being below the rank of Sub-Inspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station. (2) Such officer, on being so required, shall proceed according to the provisions of sec. 165, and shall forward the thing found, if any, to the officer at whose request the search was made. (3) Whenever there is reason to believe that the delay occasioned by requiring an officer in charge of another police station to cause a search to be made under sub-sec. (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer in charge of a police station or a police officer making an investigation under this Chapter to search, or cause to be searched, any place in the limits of another police station, in accordance with the provisions of sec. 165, as if such place were within the limits of his own station. (4) Any officer conducting a search under sub-sec. (3) shall forthwith Send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under sec. 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sec. 165, sub-secs. (1) and (3). (5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub-sec. 103, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sec. 165, sub-secs. (1) and (3). (5) The owner or occupier of the place searched shall, on application, be furnished with a copy of any record sent to the Magistrate under sub-sec. (4) : Provided that he shall pay for the same unless the magistrate for some special reasons thinks fit to furnish it free of cost." It is clear that only an officer incharge of the police station or the police officer not below the rank of Sub-Inspector of Police making investigation can require an officer incharge of another police station to cause a search to be made in any place in which the former officer might cause search to be made within the limits of his own station. The learned Deputy Government Advocate suggests that the words "Sub-Inspector Police" appearing in the phrase "a police officer not being below the rank of Sub-Inspector" should be construed to include "Assistant Sub-Inspector Police" and on this interpretation of sec. 166, Criminal Procedure Code, Mohanlal P.W. 9, who was an Assistant Sub-Inspector of Police was competent to require Sher Singh incharge of the Police Station, Singhana to make a search. 17. I regret, I am unable to agree with the learned Deputy Government Advocate. On a consideration of the language of sec. 166, Criminal Procedure Code and the context in which the words "Sub-Inspector of Police" appears, I am unable to hold that the terra "Sub-Inspector" should be treated to include "Assistant Sub-Inspector of Police". On this interpretation of sec. 166, Criminal P.C. I have no hesitation in coming to the conclusion that Mohanlal who was merely an Assistant Sub-Inspector of Police, was not competent to make a requisition to the officer incharge of Police Station, Singhana, to make a search within the limits of Police Station, Singhana. It may also be significantly observed that Mohanlal in fact made no requisition requiring Sher Singh to make a search. 18. The learned Government Advocate then placed reliance upon the language of sub-sec. (3) of sec. It may also be significantly observed that Mohanlal in fact made no requisition requiring Sher Singh to make a search. 18. The learned Government Advocate then placed reliance upon the language of sub-sec. (3) of sec. 166, Criminal P.C. and contended that any police officer of Hansi Police Station making investigation could undertake a search if there was reason to believe that delay occasioned by requiring an officer incharge of another police station to cause a search to be made under sub-sec. (1) might result in the evidence of the commission of the offence being concealed or destroyed. He emphasised the words "or a police officer making an investigation" appearing in sub-sec (3). 19. Mr. Jain appearing for the defence pointed out that the expression police officer making an investigation should be construed in the light of sub-sec. (1) and should be taken to mean a police officer not below the rank of Sub-Inspector of Police. 20. There is a force in Mr. Jains contention. A contrary view is bound to lead to some anomalous results. While the officer not below the rank of a Sub-Inspector cannot require a police officer incharge of a police station to cause a search to be made but he can himself cause a search to be made under sub-sec. (3) on the interpretation canvassed by the Deputy Government Advocate. Obviously, such anomalous results could not be intended by the legislature. The earlier part of sub-sec. (3) which requires that before search can be made under latter part of sub-sec. (3) there should be reason to believe that the delay occasioned by proceeding under sub-sec. (1) might result in evidence of the commission of the offence being concealed or destroyed also points out in the same direction. In my judgment, on a proper construction of sec. 166, Criminal P.C. Mohanlal, Assistant Sub-Inspector Police, was not competent to make a search in view of the provisions contained in sub-sec. (3) of sec. 166, Criminal P.C. This apart, when Shersingh himself was present on the occasion, the question of invoking sub-sec. (3) did not arise at all. 21. I might also notice another argument advanced by the Deputy Government Advocate in support of his case that the search was not without jurisdiction. (3) of sec. 166, Criminal P.C. This apart, when Shersingh himself was present on the occasion, the question of invoking sub-sec. (3) did not arise at all. 21. I might also notice another argument advanced by the Deputy Government Advocate in support of his case that the search was not without jurisdiction. His argument was that Shersingh was present at the time of searches of the houses of Matadeen and Ramjilal and that he had been properly required to conduct the searches. He being present at the time of the searches, the searches should be deemed to have been carried out by him, although the actual searches were made by Satveer PW/10 purporting to act under the instructions of Mohanlal. The answer to this contention is three-fold— 1. As held earlier, Mohanlal, Assistant Sub-Inspector of Police PW/9 was not competent to require the Police Officer incharge of Police Station, Singhana, to undertake a search and, therefore, on a proper construction of sec. 166, Criminal P.C. Shersingh PW/17 himself also had no jurisdiction to conduct a search. 2. The tehrir Ex. P-l did not make any request to Shersingh PW/17 to to make a search. 3. That when the actual search was conducted by Mohanlal, it will be hardly proper to treat the search as having been conducted by Shersingh. 22. The alternative contention of the Deputy Government Advocate thus has no force and is rejected. 23. The Deputy Government Advocate made yet feeble attempt to support the searches on the ground that they were made to effect arrests of Matadeen, Ramjilal and other persons. This was, however, not the case of the State in the court below nor there are materials on record to provide a factual basis for such a contention 24. As I look at the matter the searches made by Mohanlal were clearly in violation of the provisions of sec. 166, Criminal P.C. The Sessions Judge has also noticed that in permitting Satveer PW/10 to actually conduct the searches there has been violation of sec. 165, Criminal P.C. as well. In this view of the matter, I am inclined to take the view that the act of Mohanlal in effecting searches and recovering the property was something more than a mere irregular act not strictly justifiable. In fact, it was an act lacking jurisdiction. 25. 165, Criminal P.C. as well. In this view of the matter, I am inclined to take the view that the act of Mohanlal in effecting searches and recovering the property was something more than a mere irregular act not strictly justifiable. In fact, it was an act lacking jurisdiction. 25. The learned counsel for the defence also emphasised the conduct of Mohanlal in recovering cash amounting to Rs. 225/-. I, however, propose to deal with that aspect of the case in considering the question of good faith. 26. Now coming to the question of good-faith, the Sessions Judge has no doubt taken the view that the police officers were acting in good faith. To me the conclusion of the Sessions Judge does not appear to be correct. The Police officers undertaking searches are expected to have the knowledge as to who can undertake the search in accordance with the provisions of secs. 165 and 166, Criminal P.C. and a police officer undertaking search without taking care to see whether he is competent to make a search, cannot be said to act in good faith. Ignoring this aspect, the difficulty in accepting the good faith of Mohanlal and other members of police party is found in the way in which the made they searches and recovered the properties. Even though Permeshwar did not identify the property found in the house of Matadeen and Ramjilal as belonging to him, yet they (police officers) proceeded to recover the property. The explanation of the police officers that the property was suspected to be one required in connection with another case cannot be rightly and safely accepted. The first information report, the list of property given in that case and the description of the property are not available on the record and mere suggestion of the police officers in this behalf cannot be sufficient. At any rate, there was on justification whatsoever for recovering the cash. In the facts and the circumstances of the case there are no sufficient materials on record to justify a conclusion that Mohanlal the Assistant Sub-Inspector of Police and the members of the police party were acting in good faith. 27. On these premises, the proper conclusion appears to be that sec. In the facts and the circumstances of the case there are no sufficient materials on record to justify a conclusion that Mohanlal the Assistant Sub-Inspector of Police and the members of the police party were acting in good faith. 27. On these premises, the proper conclusion appears to be that sec. 99 Indian Penal Code, would not have been applied in case any resistance was offered to the searches by Mohanlal, when they were in the process of effecting searches. This, however, does not conclude the matter. The question of the availability of the right of private defence to the appellants has to be decided in the present case in some peculiar circumstances. It cannot be denied that no objection appears to have been taken at the time of search. In fact, searches were, allowed to be completed and the properties were allowed to be recovered and seized. The police officers after completing the searches had left the houses both of Matadeen and Ramjilal and had reached a place in a chowk near Prahlads house. The appellants before me do not claim to be the persons whose houses were searched and do not state that they merely tried to take back the property which was illegally recovered from them. The owners of the properties in a way acquiesced in the searches and the recovery of the properties and in the circumstances it will be difficult to hold that the police in possession of the properties recovered by them in searches even though irregularly conducted could be treated as having committed the offence of theft so as to provide a right of private defence to the appellants. The question of treating them as trespassers and claiming right of private defence on that ground also cannot arise, after the searches of the houses of Ramjilal and Matadeen were complete. It was, however, argued that the police officers should be treated to have contemplated trespass to the house of Prahlad on account of their desire to search the house of Prahlad. The argument, however, has no force. Prahlad whose house was intended to be searched, has not come forward to take a plea of this type. It was, however, argued that the police officers should be treated to have contemplated trespass to the house of Prahlad on account of their desire to search the house of Prahlad. The argument, however, has no force. Prahlad whose house was intended to be searched, has not come forward to take a plea of this type. In any case the appellants-party consisting of 40 to 50 Meenas all of a sudden appearing on the scene armed with lathees and barchies and assaulting the police party cannot be said to have acted in exercise of right of private defence. The argument based on the right of private defence fails and cannot be accepted. 28. The next question canvassed is whether the members of the Meena party can be said to have formed an unlawful assembly and to have committed a riot. There should be no difficulty in deciding this question against the defence. There is abundant evidence on record to show that a party of Meenas armed with barchis and lathis appeared on the scene and assaulted the police party. One of them who is not before me, snatched the revolver and fired at Satveer. Mohanlal, Sohanlal and other police officers were also injured. Not only the property recovered from the houses of Matadeen and Ramjilal was taken away but some other property belonging to the police party was also taken away by the Meenas. In these circumstances, the trial Judge is perfectly justified in coming to the conclusion that the Meenas formed an unlawful assembly and committed a riot. The members of the party can be easily imputed knowledge that a party consisting of 40 to 50 persons armed with lathis and barchis was likely to cause simple and grievous hurts and, therefore, all these persons who can be held to be the members of the party, can be liable for offences of causing simple and grievous hurts. A doubt might arise in respect of injuries caused by gun-fire. The members of the Meena party had no guns with them and that being so, the members of the party could not have known it likely that one Gokul would snatch a revolver and use it at the police officers. The case of constructive liability in respect of injuries caused on account of gun fire is not free from doubt. 29. The liability of the appellants under sec. The case of constructive liability in respect of injuries caused on account of gun fire is not free from doubt. 29. The liability of the appellants under sec. 395, Indian Penal Code, is however a matter which requires serious consideration. A perusal of the charge shows that there was no independent charge under sec. 147 or 148, Indian Penal Code, specifying the common object of the assembly. Charges were framed only under sec. 395, 332 and 333 read with sec. 149, Indian Penal Code. The charge with regard to dacoity states that the various accused on 6th of January, 1961 at about 9.30 A. M. forcibly took away from the possession of Mohanlal PW/9, Assistant Sub-Inspector, the property which he had recovered and seized. Evidently the charge is confined only to the property which was recovered and seized by Mohanlal and did not refer to other property taken away from the members of the police party. The learned counsel for the appellant pointed out certain defects in the charge. In particular, it was pointed out that various essentials required to construe an offence of robbery which are necessary for the offence of dacoity having not been stated, the appellants could not be held guilty of the offence under sec. 395, Indian Penal Code. 30. I do | not propose to go into the defects in the charge because on the merits I do not consider that an offence under sec. 395, Indian Penal Code, has been made out against the appellants. I have held earlier that Mohanlal, Assistant Sub-Inspector Police, was not acting within the scope of his authority when he effected a search and recovered the properties. The properties alleged to have been taken away from the police party having not been recovered from the possession of any of the accused. The possibility of the owners of the property either themselves or along with other appellants taking away the property illegally recovered from the houses taking back cannot be ruled out. Now the searches and the recovery of property being illegal the owners of the property taking back the property from the police party cannot be said to have had a dishonest intention and to commit an offence of theft. A property which was recovered was only in the process of being taken away. Now the searches and the recovery of property being illegal the owners of the property taking back the property from the police party cannot be said to have had a dishonest intention and to commit an offence of theft. A property which was recovered was only in the process of being taken away. In such circumstances, it is doubtful whether the act of the persons who might be the owners of the property in taking back the property could be treated as dishonest so as to make out a case of theft against the appellants. The learned Sessions only took the Judge in his judgment has emphasised the fact that the accused not possession of the articles which were recovered from the house of Matadeen and Ramjilal but they even carried away the other property belonging to the police party. It appears to me that the learned Sessions Judge in finding the appellant guilty under sec. 395, Indian Penal Code, was influenced by the fact that some property other than the property recovered from the houses of Matadeen and Ramjilal was forcibly taken away. There is, however, no charge in respect of other property. The other properties have also not been recovered from the possession of any of the accused. The removal of the property from the possession of the police party other than the property seized during the searches could not have been the common object of the unlawful assembly nor could any member know of such a likely consequence. It appears that in the confusion some miscreants might have taken away property other than the property seized from the possession of the police officers who in such a case could be individually responsible for their acts. Considering the facts and the circumstances of the case as a whole, I do not consider that a charge under see. 395, Indian Penal Code, has been successfully proved against the appellants. 31. Now. taking up the case of the individual accused, the learned counsel for the appellants divided the accused into three categories. In the 6rst category, he placed Kabulia, who is now dead, Devla, Satania, Sanwalia Sunda and Ramswaroop. In the second (category he placed Patmalia and Jagdish and in the third category Prahlad, Dhanna and Naria. 32. Coming to the first group of the accused, Kabulia is dead and his case need not be discussed. In the 6rst category, he placed Kabulia, who is now dead, Devla, Satania, Sanwalia Sunda and Ramswaroop. In the second (category he placed Patmalia and Jagdish and in the third category Prahlad, Dhanna and Naria. 32. Coming to the first group of the accused, Kabulia is dead and his case need not be discussed. Out of the remaining five, with regard to the four of them, namely, Ramswaroop, Satania, Sanwalia and Sunda, there is the sole statement of Shersingh that they were among the assailants. Shersingh has also not imputed any overt act to these persons. A question arose whether an omnibus statement of Sher Singh against these four persons can be sufficient to sustain their conviction. The learned trial Judge has of-course held that Shersingh is a very reliable witness and that he was expected to know the accused from before but it cannot be forgotten that in a melee where 40 to 50 persons were concerned, a statement of a single witness imputing no overt act to the persons can be safely considered sufficient for conviction. I see no hesitation in giving benefit of doubt to these four persons. 34. As regards Devla, his case is similar with the case of four persons with this difference that Mohanlal PW/9 has identified him. But Mohanlas evidence as to identification having not been found quite convincing by the trial Judge and having been utilised only for the purpose of corroboration, conviction of Devla on the statement of Sher Singh imputing no overt act to him would not be proper. Devla also is entitled to the benefit of doubt. 35. Coming to the second category of the accused, I will take up the case of accused Patmalia first. Sher Singh is the only witness who has identified him and who has also imputed overt act to him. According to Sher Singh, he attacked Jagdish. Jagdish P.W. 7, however, does not support Sher Singh on this point. -Patmalia also deserves to be given the benefit of doubt. 36. As regards Jagdish accused, the statement of Sher Singh that he snatched the gun from Mohanlal finds corroboration from the evidence of Sohanlal P.W. 14. In my opinion, his case can not be equated either with the case of accused of the first group or with Patmalia. Evidence against him appears to be sufficient to sustain his conviction. 37. 36. As regards Jagdish accused, the statement of Sher Singh that he snatched the gun from Mohanlal finds corroboration from the evidence of Sohanlal P.W. 14. In my opinion, his case can not be equated either with the case of accused of the first group or with Patmalia. Evidence against him appears to be sufficient to sustain his conviction. 37. As regards the third group consisting, of Prahlad, Dhanna and Naria, besides the evidence of Sher Singh naming them as assailants and imputing overt act, there is evidence of other witnesses corroborating Sher Singh. These three persons have been identified by some of the prosecution witnesses at a prior parade and also at the trial. There appears to be no reason to differ from the trial Judge with regard to these three persons. Their participation in the crime stands sufficiently proved. 38. In the light of foregoing discussions, I hold : (1) That the offence under/sec. 395, Indian Penal Code, is not made out against the appellants and they deserves to be acquitted of that charge. (2) That the participation of the appellants Ramswaroop, Devla, Satania, Sanwalia, Sunda and Patmalia is not proved and they are entitled to acquittal. (3) That Prahlad, Dhanna, Naria, and Jagdish have been rightly convicted under secs. 332 and 333, Indian Penal Code, read with sec. 149. 39. Consequently, I partially allow this appeal, set aside the convictions of all the appellants under sec. 395, Indian Penal Code. The appellants, Ramswaroop, Kabulia, Devla, Satania, Sanwalia, Sunda, and Patmalia are also acquitted of offences under secs. 332 and 333, Indian Penal Code. 40. The convictions of the remaining four appellants, namely, Prahlad, Dhanna, Naria and Jagdish under secs. 332 and 333 read with sec. 149, Indian Penal Code, are maintained. 41. Considering that Mohanlal P.W. 9 and the members of the police party did act more or less in arbitrary manner and conducted searches and effected recoveries of properties in violation of secs. 165 and 166, Criminal P.C. and the further fact that the appellants are not being held constructively liable for grievous hurt caused by gun fire, but are only held liable for other injuries, a lenient view in the matter of sentence of one year rigorous imprisonment under sec, 333 and a sentence of three months rigorous imprisonment under sec. 332, Indian Penal Code, is sufficient to meet the ends of justice. 332, Indian Penal Code, is sufficient to meet the ends of justice. The sentences against these four appellants are reduced from three years to one year under sec. 333 and from one year to three months under sec. 332, Indian Penal Code. 42. These persons are on bail. The District Magistrate concerned may be asked to take steps to secure their arrest and to send them to jail to serve out the sentences awarded to them. 43. Learned counsel for the appellants presses for leave to appeal to Supreme Court. Leave is refused.