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2003 DIGILAW 542 (GUJ)

STATE OF GUJARAT v. KHARWA HIRALAL @ IKU GAGAN

2003-09-11

DEV KANT TRIVEDI, M.S.SHAH

body2003
M. S. SHAH, J. ( 1 ) THIS appeal, by the State of Gujarat, is directed against the judgment and order dated 30. 9. 1985 of the learned Additional Sessions Judge, Junagadh at Porbandar acquitting the respondents (original accused Nos. 1 and 2) from the offences punishable under Section 307 read with Sections 511, 353, 307, 224, 225 and 186 IPC, Section 25 (1) (a) of the Arms Act and Section 135 (1) read with Section 37 (1) of the Bombay Police Act. The appeal was admitted by this Court on 27. 3. 1986. When the appeal reached final hearing, Mr KC Shah, learned Additional Public Prosecutor for the State and Mr KJ Shethna, learned counsel for the respondents state that respondent No. 2-Kharwa Jashu Gagan @ Jivabhai Gagan expired on 2. 12. 1996 (death registered on 4. 12. 1996) as per the death certificate dated 27. 1. 1997 issued by the Registrar of Births and Deaths, Municipal Office, Porbandar, a copy whereof is produced on the record of these proceedings. It is thus obvious that the appeal against respondent No. 2-Kharwa Jasu Gagan has abated. The appeal still survives against respondent No. 1-original accused No. 1-Kharwa Hiralal @ Iku Gagan. ( 2 ) THE respondents herein were charged with aforesaid offences in that on 2. 10. 1984 at 3. 20 AM when PSI-SN Mehta went to arrest the respondents in the terrace of Mulji Govind, father-in-law of the two respondent-brothers, respondent No. 2 assaulted the said complainant-PSI with a knife and attempted to commit murder of the said PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC and also obstructed the said PSI in the discharge of his duties as a public servant and thus committed the offence punishable under Section 353 IPC. At the aforesaid time, date and place, when the complainant-PSI was grappling with accused No. 2, accused No. 1 came out with a pistol and threatened the complainant-PSI to release accused No. 2 and accused No. 1 brandished the illegal pistol, without license, in order to cause death of the complainant-PSI and thus committed the offence punishable under Section 307 read with Section 511 IPC. Both the respondent-accused were also charged with the offence punishable under Section 224 IPC for obstructing their arrest and accused No. 1 was also charged with the offence punishable under Section 225 IPC. Both the respondent-accused were also charged with the offence punishable under Section 224 IPC for obstructing their arrest and accused No. 1 was also charged with the offence punishable under Section 225 IPC. Accused No. 1 was further charged with the offence punishable under Section 25 (1) (a) of the Arms Act, 1959 for possessing a fire arm without license. Both the respondents were also charged with the offence punishable under Section 186 IPC for causing illegal obstruction to the police in the discharge of their official duties. The respondents were accordingly charged with the offences punishable under Sections 307, 353, 146 and 511 read with Section 144 IPC and also for the offences punishable under Sections 224, 255 and 186 IPC. Respondent No. 1 was further charged with the offence punishable under Section 25 (1) (a) of the Arms Act and respondent No. 2 was further charged with the offence punishable under Section 135 (1) read with Section 37 (1) of the Bombay Police Act. ( 3 ) THE prosecution case was that in the early morning hours of 2. 10. 1984, PSI-SN Mehta (PW 1) received information that the respondents herein, who were two of the accused in connection with the offence punishable under Sections 302 and 307 IPC registered at CR No. 188 of 1984 at Porbandar City Police Station and who were absconding, were sleeping in the house of Mulji Govind in Kharvawad Ju Falia at Porbandar and on getting the said information, the said PSI consulted his superiors, District Superintendent of Police (DSP) and Sub Divisional Police Officer (SDPO) and alongwith the said superior officers and other members of the police staff and SRP constables, the PSI went to the house of Mulji Govind. Since all the doors and windows for entering the house were found to be closed from inside, as per the instructions of the DSP, the PSI climbed up the ladder which was taken by them and the three constables were also asked to follow the PSI by climbing up the ladder. The PSI went onto the terrace on the third floor of the house. Accused No. 2, sleeping in a cot on the terrace, woke up and rushed towards the PSI with a naked knife. The PSI went onto the terrace on the third floor of the house. Accused No. 2, sleeping in a cot on the terrace, woke up and rushed towards the PSI with a naked knife. The PSI overpowered him and gave him a fist blow resulting into the knife being dropped by accused No. 2, who in the meantime also shouted "police has come, save, save". Hence, accused No. 1 who was sleeping inside the adjoining room on the same floor came out with a pistol in his hand and called upon the PSI to release accused No. 2, failing which accused No. 1 will murder the PSI. However, the PSI did not release accused No. 2. Hence, accused No. 1 aimed the pistol at the PSI and fired one shot. The PSI saved himself by ducking his head. The three constables who were following the PSI rushed and caught hold of both the accused. One of the police constables who had climbed up to the terrace went down-stairs through the inner staircase and opened the front door of the house on the ground floor. Thereafter, the DSP, the SDPO and the other persons entered the house and reached upto the terrace. The PSI lodged his complaint (Exh. 10) at 4. 45 same morning. The accused were arrested and were chargesheeted for the aforesaid offences. ( 4 ) AT the trial, the accused pleaded not guilty and the prosecution examined PSI-SN Mehta (the complainant) at Exh. 10, Mojitsingh Bhikhubhai, Unarmed Police Constables (Exh. 12), Police Head Constable Jitudan Devidan Gadhvi (Exh. 13) and Police Constable Jivabhai Sajanbhai (Exh. 14) as eye witnesses. The prosecution also examined two panch witnesses Premshankar Prabhashankar and Mohan Lila at Exhs. 18 and 20 respectively in respect of the panchnama of the search of the house of Mulji Govind (Exh. 19 ). Both the panch witnesses, however, turned hostile. The prosecution also examined three other police witnesses - Bhikhabhai Karsandas Rathod, Police Inspector (Exh. 15), Seshursinh Pannasinh, Police Head Constable of Porbandar Police Station (Exh. 16) and Anupsingh Bapulal Vir, Dy. SP at Porbandar City Division (Exh. 21 ). The prosecution also relied on the Forensic Science Laboratory report at Exh. 7 in respect of the pistol and the cartridges recovered from the scene of offence and also the documents at Exh. 8 being the sanction letter for lodging proceedings under the Arms Act. 16) and Anupsingh Bapulal Vir, Dy. SP at Porbandar City Division (Exh. 21 ). The prosecution also relied on the Forensic Science Laboratory report at Exh. 7 in respect of the pistol and the cartridges recovered from the scene of offence and also the documents at Exh. 8 being the sanction letter for lodging proceedings under the Arms Act. After the prosecution evidence was led, the statements of the accused were recorded under Section 313 Cr. PC. The defence of both the accused was of general denial and they also took the stand that at 10 O clock in the morning of 2. 10. 1984, a police constable had gone to the residence of the accused at Vaniyavad in Porbandar informing the accused that they were being called at the police station; on reaching the police station, the two accused were informed that the offence punishable under Section 307 IPC was registered against them; and that they had nothing further to add. The accused did not lead any evidence nor did they examine themselves as witnesses. ( 5 ) THE learned Additional Sessional Judge framed the issues and held that the prosecution had established that the accused were absconding in connection with the offence registered at CR No. 188 of 1984 at Porbandar City Police Station for whom the police were in search. However, the learned Judge gave findings against the prosecution in respect of all the other issues. The learned Judge held that PSI-SN Mehta (PW 1) did not know either of the accused nor did the accused know PW 1-complainant as a police officer. The learned Judge further held that even if it were to be held that the accused were in the house of Mulji Govind at the time and on the date in question, accused No. 1 did not intend to cause death of the complainant-PSI, but accused No. 1 only tried to prevent any injury or damage being caused by the complainant to accused No. 2 and that accused No. 1 only wanted to see that accused No. 2 was released by the complainant. Hence, if any shot was fired, accused No. 1 did not intend to murder the complainant. The learned Judge further held that no injury was caused either to the complainant or to any other police officer nor to the accused. Hence, if any shot was fired, accused No. 1 did not intend to murder the complainant. The learned Judge further held that no injury was caused either to the complainant or to any other police officer nor to the accused. The learned Judge further held that the accused were thus acting only in self-defence and, therefore, they had not committed any offence punishable under Sections 307, 511, 353, 186, 224 or 225 IPC. ( 6 ) AS regards the recovery of the pistol and the knife and consequently the offences under the Arms Act and the Bombay Police Act, the learned trial Judge held that the panchas had not supported the prosecution case. The panchas were required to be called from the locality where the incident had taken place, but no persons from the locality were called as panchas. Moreover, the learned Judge held that, even according to the prosecution case, the panchas entered the house alongwith the DSP and the SDPO after the PSI and the three police constables had overpowered the accused and that they had not witnessed the incident. It was further observed that the police did not make any attempt to get the front door opened and there was violation of the provisions of Section 165 Cr. PC in as much as before carrying out the raid or entering the house of Mulji Govind, the complainant or any other police officer did not record in writing the grounds for his belief that anything necessary for the purposes of an investigation into the offence registered at CR No. 188 of 1984 may be found in the house of Mulji Govind. Hence, in absence of compliance with the said mandatory provision, the recovery of the knife and the pistol from the two accused in the house of Mulji Govind was illegal and vitiated the entire search. The learned Judge further held that the two senior officers, DSP and SDPO, were not examined as witnesses and that in view of the aforesaid lacunae, the accused were required to be acquitted of all the offences. ( 7 ) IT is against the aforesaid judgment and order of acquittal that the State has approached this Court in appeal. On 27. 3. 1986, leave was granted and the appeal was admitted. As already stated above, during pendency of the appeal, accused No. 2 is stated to have expired on 2. 12. 1996. ( 7 ) IT is against the aforesaid judgment and order of acquittal that the State has approached this Court in appeal. On 27. 3. 1986, leave was granted and the appeal was admitted. As already stated above, during pendency of the appeal, accused No. 2 is stated to have expired on 2. 12. 1996. The appeal, therefore, survives only against original accused No. 1 who is respondent No. 1 herein and is represented by Mr KJ Shethna. ( 8 ) AT the hearing of the appeal, Mr KC Shah, learned Additional Public Prosecutor has submitted that this is a case where the appeal involves not merely reappreciation of evidence but application of erroneous principles of law by the learned Judge and also perverse findings of fact which no reasonable person instructed in law would give on the basis of the material on record. The learned APP has made the following detailed submissions :- (I) There was no question of application of Section 165 Cr. PC to the situation at hand. Having obtained the information that two accused of CR No. 188 of 1984 were hiding themselves in the house of their father-in-law Mulji Govind in Kharvawad Ju Falia, the PSI (who was actually involved in the bandobast duty when he received the aforesaid information) with his superior officers as well as the subordinate staff and the SRP party had gone to the house of Mulji Govind in the early morning hours of 2. 10. 1984. Since the PSI was also informed that the accused were sleeping on the third floor, naturally anticipating that the police party may not be able to enter the house, they had also carried a ladder with them for climbing up to the third floor. What the complainant-PSI and the other members of the police party had gone to do was to arrest the two accused out of the six persons accused of a cognizable offence under the provisions of Section 41 (1) (a) of the Cr. PC. which empowers any police officer, without an order from a Magistrate and without a warrant, to arrest any person who has been involved in any cognizable offence. None of the provisions in Chapter 5 of the Cr. PC. which empowers any police officer, without an order from a Magistrate and without a warrant, to arrest any person who has been involved in any cognizable offence. None of the provisions in Chapter 5 of the Cr. PC requires any such police officer to record any reason in writing before taking any steps for arresting the accused concerned in any cognizable offence and, therefore, the learned Judge committed a serious error of law in holding that Section 165 Cr. PC was applicable and was committed breach of. (II) Having held that both the accused were absconders in respect of the offence registered at CR No. 188 of 1984 at Porbandar City Police Station and that the PSI and the other members of the police party were on public duty at the relevant time in the early hours of 2. 10. 1984, the learned Judge erred in not holding that the complainant-PSI and other members of the police party had gone to arrest both the respondents herein and that both the respondents had voluntarily obstructed the PSI in the discharge of his public functions and that they had committed the offence punishable under Section 186 IPC. So also both the accused had intentionally offered resistance and illegal obstruction to their lawful apprehension by the PSI for the offence registered at CR No. 188 of 1984 and had thus committed the offence punishable under Section 224 IPC. Accused No. 1 had further committed the offence punishable under Section 225 IPC by intentionally offering resistance and illegal obstruction to the lawful apprehension of accused No. 2 by the complainant-PSI for the same offence registered at CR No. 188 of 1984 and accused No. 1 had thus committed the offence punishable under Section 225 IPC. (III) The complainant and the constables had already recovered the knife and the pistol from accused Nos. 2 and 1 respectively for which a panchnama was also drawn at Exh. 19 immediately on the spot and there was no reason to disbelieve the said panchnama or the oral evidence of the Dy. SP, the PSI and the constables that they had recovered the weapons from the accused at the scene of offence and thus the prosecution had led sufficient evidence to prove the possession of the pistol by accused No. 1 and possession of the knife by accused No. 2. SP, the PSI and the constables that they had recovered the weapons from the accused at the scene of offence and thus the prosecution had led sufficient evidence to prove the possession of the pistol by accused No. 1 and possession of the knife by accused No. 2. Thus, the commission of offences under Section 25 (1) (a) of the Arms Act and under Sections 135 (1) and 37 (1) of the Bombay Police Act was clearly established. (IV) The report of the FSL at Exh. 7 clearly indicated that the blank cartridge recovered from the scene of offence was fired from the pistol in question and thus accused No. 1, from whom the pistol was recovered, had fired the shot after aiming at the complainant-PSI which clearly proved the intention to cause death of the PSI and, therefore, accused No. 1 had committed the offence punishable under Section 307 IPC. ( 9 ) ON the other hand, Mr KJ Shethna, learned counsel for respondent No. 1-accused has made detailed oral submissions as well as written submissions for supporting the order of acquittal. The main submissions are as under :- (I) The entire story of the police party having gone to the house of Mulji Govind (father-in-law of the accused brothers) and having arrested the accused from there is too fantastic to be accepted as true. The accused were called from their house in Vaniawad at Porbandar at 10 O clock in the morning and no such incident as alleged had taken place in the early morning hours of 2. 10. 1984. If any such incident had taken place and the accused had offered any resistance or put up any obstruction to their arrest, the accused and/or some member of the arresting party would have received some injury; but nobody had received any injury even though accused No. 2 had allegedly rushed to the PSI with a naked knife, the PSI had caught hold of him and both of them were grappling with each other. Accused No. 1 would have noticed that accused No. 2 and the PSI were grappling with each other and firing a single shot at the PSI would have exposed to his brother accused No. 2 to a vital injury. Accused No. 1 would have noticed that accused No. 2 and the PSI were grappling with each other and firing a single shot at the PSI would have exposed to his brother accused No. 2 to a vital injury. The improbability is also apparent from the fact that although accused No. 1 is stated to be carrying a pistol with as many as eight live cartridges, when the PSI caught hold of accused No. 2, if the shot fired by accused No. 1 at the PSI had gone in vein, accused No. 1 would have immediately fired one shot after another. (II) When a pistol shot is alleged to have been fired by accused No. 1 in a residential area, the people in the vicinity would have got up and come out and the evidence of witnesses in the neighbourhood would have been available if the prosecution story was true. No such witnesses from the neighbourhood or locality have been examined. (III) No mark was found on the wall of the terrace where the alleged incident took place. If any shot was fired by accused No. 1 at the PSI, when he was grappling with accused No. 2 and an empty cartridge is allegedly found near the flower pots on the terrace, there would be some mark on the parapet wall of the terrace. It is, therefore, clear that no shot was fired by accused No. 1. (IV) It is submitted in the alternative that in any view of the matter if at all any shot was fired by accused No. 1, it was done without knowing that the person who had climbed up on the terrace was a police officer or a public servant, much less with the knowledge that the officer had come to arrest the accused in connection with CR No. 188 of 1984 because admittedly the complainant-PSI was not investigating the said offence. it is submitted that the incident was picked up in order to see that the complainant-PSI gets a prize for arresting the two accused. (V) The prosecution has relied on the FSL report at Exh. 7, but a perusal thereof indicates that the said report dated 11. 3. 1985 was in response to the letter dated 29. 10. 1984 of the PSI, Porbandar sent alongwith the four parcels which were received by the FSL on 2. 11. 1984. (V) The prosecution has relied on the FSL report at Exh. 7, but a perusal thereof indicates that the said report dated 11. 3. 1985 was in response to the letter dated 29. 10. 1984 of the PSI, Porbandar sent alongwith the four parcels which were received by the FSL on 2. 11. 1984. The alleged incident took place on 2. 10. 1984 and according to the prosecution case, the knife, the pistol and the cartridges alleged to have been recovered by the police in the early morning hours of 2. 10. 1984 were handed over to constable Jayantilal. Constable Jayantilal has not been cited or examined as a witness and no evidence is led to explain as to what happened to the said articles between 2. 10. 1984 and 29. 10. 1984. ( 10 ) BEFORE dealing with the aforesaid submissions, we may briefly set out the evidence led by the prosecution. ( 11 ) THE evidence of complainant PSI SN Mehta, PW 1 at Exh. 10 (hereinafter referred to as "the PSI" or "the complainant) is the most material. 11. 1 in his evidence recorded on 20. 9. 1985, the PSI stated that he was discharging his duties as a PSI at Porbandar City Police Station for the last about one and a half years. In the early morning hours of 2. 10. 1984, the PSI was in charge of Pilpara Police Chowky and was busy with the police bandobast in connection with the navratri festival at Porbandar. After the midnight he was on patrolling duty with constables PW 3 Jitudan Gadhvi and PW 2 Mojitsinh. During the said patrolling, he received information that out of the absconding offenders of CR No. 188 of 1984 registered at the Porbandar City Police Station, two accused with weapons were hiding in the house of Mulji Govind in JU Falia in Kharvawad. Upon receiving such information at about 1. 30 AM, the PSI went to the office and informed the DSP. An urgent meeting was held where the DSP, Porbandar, the SDPO and the other police personnel were present and a jeep, a mobile van and a ladder were summoned to go to the house of Mulji Govind. The vehicles were parked at Paliwada Chowk and the members of the police party walked upto the house of Mulji Govind. An urgent meeting was held where the DSP, Porbandar, the SDPO and the other police personnel were present and a jeep, a mobile van and a ladder were summoned to go to the house of Mulji Govind. The vehicles were parked at Paliwada Chowk and the members of the police party walked upto the house of Mulji Govind. All the doors and the windows were closed and, therefore, as per the instructions of the DSP, the ladder brought by the police party was placed near the house. The DSP instructed the PSI to climb up the ladder followed by three constables -- PW 2 Jitudan Gadhvi, PW 2 Mojitsinh and PW 4 Jivabhai Sajanbhai. After jumping over the parapet wall when the PSI landed into the terrace, on account of such noise or for any reason, accused No. 2 woke up and before the PSI would do anything, accused No. 2 got up from the bed and took out a knife lying under his pillow and assaulted the PSI. The PSI moved away and jumped and caught hold of accused No. 2 and gave a fist blow on his hand resulting into the knife falling down. Accused No. 2 struggled hard to get released from the grip of the PSI shouting "leave me, leave me" and thereafter he also shouted "bachao, bachao" (save, save ). Upon hearing that noise, accused No. 1 sleeping in the room adjoining the terrace also woke up and came out of the room and rushed with a pistol aiming the same at the PSI. Accused No. 1 also threatened the PSI to release accused No. 2 failing which accused No. 1 would murder the PSI. Since the PSI did not release accused No. 2, accused No. 1 fired a pistol shot at the PSI which the PSI avoided by ducking. During this fight, the three constables following the PSI also entered the terrace and overpowered accused No. 1 and snatched away the pistol. One of the constables, constable Jivan Sajan climbed down the staircase in the house to open the front door on the ground floor enabling the DSP, SDPO and the other members of the party to enter the house and the terrace. Both the accused were thereupon arrested and taken to the police station. One of the constables, constable Jivan Sajan climbed down the staircase in the house to open the front door on the ground floor enabling the DSP, SDPO and the other members of the party to enter the house and the terrace. Both the accused were thereupon arrested and taken to the police station. The knife (muddamal article No. 1) and the pistol (muddamal article No. 2) were shown to the PSI in the Court and he identified the same as those recovered during the aforesaid incident. The PSI also stated that the police party had carried the panchas with them to the scene of offence. 11. 2 in his cross examination, the PSI stated that he was aware of the fact that the offence registered at CR No. 188 of 1984 was being investigated into, and the accused therein were yet to be arrested. He did not know the exact number of the accused involved in the said offence nor was he aware whether the accused other than the two respondents in the present case were arrested. He further stated that the investigation of CR No. 188 of 1984 was not in his charge and he was also not aware as to who was the officer in charge of the said investigation. He also did not remember as to whether the Investigating Officer for the said offence was present at the meeting attended by the DSP, SDPO etc. He further stated that after the incident was over, the SDPO Mr Vir and the PSI himself had got the panchnama written by the police writer. No preliminary panchnama was prepared before reaching the place of Mulji Govind or before climbing up the ladder for entering the house of Mulji Govind. The PSI further stated that no panch was with him or the three constables who climbed up the ladder to get on to the terrace. He admitted that he had a service revolver with him when he climbed up the ladder and entered the terrace and that the three constables who were following him were also having weapons. He had no other weapon in his pockets or elsewhere, but no such thing was mentioned in the panchnama. He admitted that he had a service revolver with him when he climbed up the ladder and entered the terrace and that the three constables who were following him were also having weapons. He had no other weapon in his pockets or elsewhere, but no such thing was mentioned in the panchnama. The PSI further stated that he came to learn from the constables under him that the persons who were arrested at the site were accused No. 1 and accused No. 2 - Iku Gagan and Jasu Gagan respectively and that he had not seen the record of the offence registered at CR No. 188 of 1984 or any record to show that the accused herein were absconders. The PSI did not know Mulji Govind or that Mulji Govind was the father-in-law of the accused. The PSI also stated that no lights were on at the scene of offence and that it was the informant who had shown him the place of Mulji Govind. He stated that there was clear information that the accused were sleeping on the third floor of the house and that the members of the police party were stationed all round the house to prevent any escape of the accused. The PSI further stated that accused No. 2 was sleeping on the cot in the terrace but till he got out of the bed, the PSI did not know as to whether that person was accused No. 1 or accused No. 2. He further stated that the height of the parapet wall of the terrace was about 4 to 4. 5 feet and denied the suggestion that the height of the wall was 5 to 6 feet. He further stated that since the acquaintance of the PSI with accused No. 1 was very marginal, he did not realise at the time that the person who came out of the room adjoining the terrace was accused No. 1. He also stated that the muddamal pistol was self-loading. He further stated that there were buildings around the house of Mulji Govind and that he was not sure as to at what height the shot was fired and in which direction. He denied the suggestion that accused No. 1 might have fired the short in the air. He also stated that the muddamal pistol was self-loading. He further stated that there were buildings around the house of Mulji Govind and that he was not sure as to at what height the shot was fired and in which direction. He denied the suggestion that accused No. 1 might have fired the short in the air. He stated that since he had lowered his head when accused No. 1 fired the shot, the cartridge released from the pistol would hit the wall making a dent in the wall or would pass through the wall. The PSI also denied the suggestion that the Porbandar police had animosity against the accused who where criminal minded and strong headed persons and that the PSI and the other police officers had contrived the story only to get a prize, though accused Nos. 1 and 2 had no weapon in the terrace nor had they fired any shot from any weapon. 11. 3 the FIR produced by the said witness at Exh. 11 shows that the complaint was lodged at 4. 45 AM in the morning of 2. 10. 1984. The complaint and the oral evidence of the PSI is on the same lines as far as the material particulars are concerned, with the sole exception that in the complaint the PSI stated that when he overpowered accused No. 2 from whose hands the knife fell down, thereupon accused No. 2 shouted that the police has come and on hearing that accused No. 1 had come out from the adjoining room alongwith a pistol. In his evidence, the PSI stated that accused No. 2 shouted "save, save". ( 12 ) THE next witnesses are the three constables who had followed the PSI climbing up the ladder onto the terrace. 12. 1 pw 2 Constable Mojitsinh at Exh. 12 stated that PSI Mr Mehta (the complainant), Bhikhubhai Gadhvi and this witness were on patrolling duty when the PSI received the information that the absconding accused of CR No. 188 of 1984 were in Karvawad and thereafter they went to the office of the DSP at about 1. 30 AM where the PSI talked to DSP Mr Gurdayal Singh and SDPO Mr Vir. 30 AM where the PSI talked to DSP Mr Gurdayal Singh and SDPO Mr Vir. All of them alongwith this witness and other police personnel took the government van, jeep and the ladder and reached Ju Falia where they parked the vehicles and walked to the house of Mulji Govind on foot. This witness has given his evidence more or less on the same lines as that of the complainant-PSI. According to this witness, the threat given by accused No. 1 to the PSI to release accused No. 2 and firing of the pistol shot by accused No. 1 at the PSI was seen by this witness and the witness and the other constables had rushed towards accused No. 1 before he could cause any damage. This witness also identified the pistol recovered from accused No. 1 which was produced at muddamal article No. 2 before the Court. This witness stated in his cross that he and the other two police constables were not in police uniform, but were in plain dress and that no search of their person or clothes was taken before they climbed up the terrace. This witness, however, stated that the panchnama was written in the terrace and that he was present when the panchnama was written, though he did not remember as to who had written the panchnama. He denied the suggestion that no pistol, knife, live cartridges or empty cartridge were found from the scene of office and no firing had taken place at the scene of offence. He also specifically denied the suggestion that accused No. 1 did not have the pistol (muddamal article No. 2) or that the pistol was not collected from accused No. 1. According to this witness, the height of the parapet wall was about 5 feet. 12. 2 pw 3 Police Constable Jitudan Gadhvi at Exh. 13 and PW 4 Police Constable Jiva Sajan at Exh. 14 also gave the evidence on the same lines. PW 3 stated that one pistol and one knife, 18 live cartridges and one empty cartridge were seized from the scene of offence. This witness also stated that he was in civil dress when they had gone to the terrace. 13 and PW 4 Police Constable Jiva Sajan at Exh. 14 also gave the evidence on the same lines. PW 3 stated that one pistol and one knife, 18 live cartridges and one empty cartridge were seized from the scene of offence. This witness also stated that he was in civil dress when they had gone to the terrace. He also denied the suggestion that the incident in question had not taken place at the house of Mulji Govind and that a false case was lodged because the police department had animosity against the accused. 12. 3 pw 5 Bhikhabhai Karsandas Rathod, Police Inspector at the DSP office was examined at Exh. 15 to show that he recorded the statements of the three constables on 2. 10. 1984 and the investigation was thereafter handed over to PI Mr Gohil on 3. 10. 1984. PW 6 Seshursinh Pannasinh was examined at Exh. 16 to show that the complaint was lodged by PSI Mehta PW 1 at 4. 45 AM on 2. 10. 1984 when this witness was the PSI at Porbandar City Police Station. ( 13 ) THE prosecution also examined PW 9 Anupsinh Bapulal Vir, DY. SP who, at the relevant time, was SDPO, Porbandar City. 13. 1 in his evidence at Exh. 21, he stated that being the supervising officer, he had accompanied PSI Mehta (PW 1), DSP and other members of the police party and had gone to the house of Mulji Govind and that PSI Mehta and the three constables had climbed up the ladder which was carried by the police party in their mobile van. There was a scuffle and the shout that "police have come" was heard and there was a firing when the witness was on the ground outside the house. Thereafter, Jiva Sajan (PW 4) had opened the door of the ground floor and the police party including the witness climbed up the staircase in the house and went to the terrace where the PSI had caught hold of accused No. 2 and police constable Gadhvi (PW 2) had caught hold of accused No. 1. Police constable Mojitsinh (PW 3) was holding the pistol (muddamal article No. 2) and PSI Mehta informed this witness that accused No. 1 had fired a shot from the pistol, but because he ducked his head, he was saved. Police constable Mojitsinh (PW 3) was holding the pistol (muddamal article No. 2) and PSI Mehta informed this witness that accused No. 1 had fired a shot from the pistol, but because he ducked his head, he was saved. Eight live cartridges were recovered from the pistol, one empty cartridge was recovered from the terrace and the naked knife was also recovered from the terrace. In the adjoining room, there was a packet containing 10 live cartridges and all these weapons were seized as per the panchnama which was prepared in his presence and in presence of the panchas. He identified the signature on the panchnama Exh. 19 and also the signatures of the panchas and complainant-PSI Mehta. 13. 2 it is specifically stated in his cross examination that he was to do visitation for proper investigation of the offence registered at CR No. 188 of 1984 and that as per his inquiry, there were six accused involved in the said offence and that the present accused were two out of those six accused, but none of the six accused could be arrested in connection with the said offence which had taken place in the last week of August, 1984 and no record was prepared about the absconding accused. The present two accused were arrested in connection with the offence registered at CR No. 188 of 1984 and not in connection with the present offence. As regards the signature of PSI Mehta (complainant PW 1) on the panchnama Exh. 19, this witness stated that the signature of PSI Mehta was obtained on the panchnama so that in case if any reward is to be given for such act of bravery, his signature on the panchnama could be useful. This witness denied the suggestion that the panchnama (Exh. 19) was prepared at the city police station and also the suggestion that the panchas were not taken to the scene of offence. This witness also stated that the pistol was 9 mm pistol and that no bullet marks were seen on the terrace wall. Hence, no reference was made to the same in the panchnama. The empty cartridge was recovered from the place near flower pots on the terrace. This witness, however, stated that he had handed over muddamal articles 1 to 5 to muddamal writer Constable Jayantilal, but he did not know as to whom Jayantilal had handed over the articles. Hence, no reference was made to the same in the panchnama. The empty cartridge was recovered from the place near flower pots on the terrace. This witness, however, stated that he had handed over muddamal articles 1 to 5 to muddamal writer Constable Jayantilal, but he did not know as to whom Jayantilal had handed over the articles. This witness further stated that he knew the accused but denied the suggestion that the police department had any animosity against the accused or that no such incident had taken place at the site in question or that no shot was fired at that place. ( 14 ) AS far as the panch witnesses are concerned, Premshankar Prabhashankar (Exh. 18), who was a rickshaw driver, stated that in the early morning of 2. 10. 1984 he was called to the police station and was taken to Kharvawad where there were a number of policemen. There was one building where the complainant alongwith the policemen climbed up and that after the policemen climbed down, the witness was taken to the police station. He stated that the two accused who were present before the Court were not with the police party on the date of the incident and that the police did not recover any article at the time of preparing panchnama. The witness was declared as hostile. This witness, however, admitted that the signatures on the paper slips of muddamal articles 1 to 5 were his signatures. He further admitted that the signatures on the panchnama (mark 6/1) were his signatures, but according to him, his signatures were obtained on a blank paper. Similarly, PW 8 Mohan Lila at Exh. 20 was the second panch witness and he also did not support the prosecution though he admitted that the signatures on the paper slips of muddamal article 1 to 5 and the two signatures on the panchnama (Exh. 19) as his signatures. The panchnama Exh. 19 indicates that the two panchas Premshankar Prabhashankar and Mohan Lila (PW 7 and 8 respectively) were called by the police and taken to the house of Mulji Govind. Since the doors and the windows of the house were closed from inside, the complainant-PSI climbed up the terrace followed by three police constables - Jitudan Gadhvi (PW 3), Mojitsingh Bhikhubhai (PW 2) and Jiva Sajan (PW 4) and a fire shot was heard. Since the doors and the windows of the house were closed from inside, the complainant-PSI climbed up the terrace followed by three police constables - Jitudan Gadhvi (PW 3), Mojitsingh Bhikhubhai (PW 2) and Jiva Sajan (PW 4) and a fire shot was heard. Thereafter police constable Jivan Sajan opened the ground floor door from inside the house and the police party and the panch witnesses climbed up to the terrace where police constable Jitudan Gadhvi was holding one person and police constable Mojitsinh was holding a pistol with one barrel which was smelling gun power recently released. There was an empty brass cartridge near the flower pots on the eastern corner of the terrace. The said empty cartridge was a little hot with fresh gun powder smell. The pistol was 9 mm, 13 cms length with barrel of 5 cms. and with black fibre grip and was bearing English words Helvancal GMM Air. There was also a naked knife near the cot on the terrace which had an aluminium handle grip. The length of the knife was 12 cms and width of 3 cms. The blade itself was of the length of 9 cms. There were no marks on the blade. There were 10 live cartridges in yellow rexine bag. The numbers on the cartridges were also mentioned in the panchnama. There were also 8 live cartridges in the magazine of the pistol. In all there were 18 live cartridges and one empty cartridge. The slips bearing signatures of the panchas were put on the seals applied to the articles, the pistol, knife, live cartridges and the empty cartridge. The panchnama was started at 3. 15 AM and completed at 4. 15 AM on 2. 10. 1984. Apart from the signatures of the panchas, the panchnama also bears the signatures of SDPO, Porbandar and the signature of SN Mehta, PSI, Porbandar. ( 15 ) A perusal of the aforesaid evidence indicates that SDPO Mr Vir, who was the supervising officer for CR No. 188 of 1984, PSI SN Mehta and the three police constables PW 2, 3 and 4 and the other members of the police party and SRP constables had gone to the house of Mulji Govind in the early morning hours of 2. 10. 1984, upon receiving the information that the respondents herein were sleeping in the house of Mulji Govind. 10. 1984, upon receiving the information that the respondents herein were sleeping in the house of Mulji Govind. (It was clearly admitted by the defence that the two accused brothers and that Mulji Govind was their father-in-law ). It was PSI SN Mehta who had received this information and, therefore, the attempt made by the defence to show that since SN Mehta was not concerned with the investigation of the offence registered at CR No. 188 of 1984 the entire incident was improbable, cannot be accepted. Since PSI SN Mehta was doing patrolling duty alongwith two other police constables being PW 2 and 3 and since the informant had given the information to the said PSI, the PSI had discussed the matter with the DSP and the SDPO, who were the supervising officers and the said superior officers had taken the PSI alongwith them and other members of the police party and the informant had also accompanied them to the site, it cannot be said that the presence of PSI Mehta was improbable. Mr Vir, SDPO, who was the supervising officer, also stated in his evidence that PSI SN Mehta, aged 28 years, was light bodied and he was asked to climb up the ladder and to arrest the accused and he was to be followed by the three constables. When PSI Mehta climbed up and jumped over the terrace parapet wall, naturally that noise made accused No. 2 wake up and take out the knife from under his pillow. When the PSI overpowered accused No. 2 and was still grappling with him, accused No. 1 came out of the room adjoining the terrace and threatened the PSI to release accused No. 2 failing which he would fire a shot at the PSI from the pistol which he had already aimed at the PSI. ( 16 ) NOTHING substantial has been brought out in the cross examination of SDPO Mr Vir, who is of the rank of a Dy. SP, complainant PSI SN Mehta or the three police constables who had followed PSI Mehta on to the terrace as to why the said police officers or the constables would cook up a false case against the accused. SP, complainant PSI SN Mehta or the three police constables who had followed PSI Mehta on to the terrace as to why the said police officers or the constables would cook up a false case against the accused. It is pertinent to note that although various questions are put to PSI Mehta, PW 1, about his not being involved in the investigation of the offence registered at CR No. 188 of 1984, SDPO Mr Vir has clearly stated in his evidence that Mr Vir himself was the supervising officer for investigation of the said offence and that the accused connected therewith were absconding. Not preparing any notification declaring those six accused as absconders cannot be said to be unnatural because that offence had taken place only in the last week of August, 1984 and the information was received about the two out of those six accused being in the house of Mulji Govind in the early morning of October 2, 1984. Thus only 4 to 5 weeks time had elapsed between the date of commission of the offence registered at CR No. 188 of 1984 and the arrest of the present two accused on 2. 10. 1984. Mr Vir has clearly stated in his evidence that the investigation of the offence registered at CR No. 188 of 1984 was in charge of PSI Vishan, but upon his transfer, the investigation was in charge of Home Inspector Mr Rathod and that the investigation was handed over to PSI (Home) Mr Rathod only 3 to 4 days prior to 2. 10. 1984. In this set of circumstances, when Mr Rathod had taken over the investigation of CR No. 188 of 1984 only 3 to 4 days prior to the date of the incident and PSI Mehta who was on patrolling duty had received the information in the early morning hours of 2. 10. 1984, there was nothing unnatural or improbable in the DSP or SDPO in charge of supervision of the investigation requiring PSI Mehta to accompany the SDPO and the police party for arresting the accused involved in CR No. 188 of 1984. 10. 1984, there was nothing unnatural or improbable in the DSP or SDPO in charge of supervision of the investigation requiring PSI Mehta to accompany the SDPO and the police party for arresting the accused involved in CR No. 188 of 1984. ( 17 ) IN view of the evidence of the aforesaid witnesses including SDPO Mr Vir, PSI Mehta and the three police constables, the prosecution has established beyond reasonable doubt that SDPO Mr Vir accompanied by complainant PSI Mehta, the three police constables and the other police party and two panchas had gone to the house of Mulji Govind to arrest the two accused who are respondents in this appeal and that complainant-PSI Mehta followed by the three constables had climbed up the ladder to reach the terrace where the accused were sleeping. The aforesaid witnesses have also deposed that when PSI reached near accused No. 2, the latter rushed to the PSI with a naked knife and that when the PSI overpowered accused No. 2 and was still grappling with him, accused No. 1 came out of the adjoining room with a pistol and threatened the PSI to release accused No. 2 failing which accused No. 1 would fire from the pistol of accused No. 1. The PSI did not release accused No. 2 whereupon accused No. 1 fired shot from his pistol and the PSI ducked and there was no injury on the person of the PSI. It was 2nd October, 1984 the eight night of Aaso Sud, when there would be moon light on the terrace. These facts are proved beyond reasonable doubt. ( 18 ) THE defence submission, however, is that if any pistol shot was fired at the PSI by accused No. 1 as alleged, mere presence of the empty cartridge near the flower pots in the terrace would not establish the fact of any such shot having been fired at the PSI because even the SDPO has admitted in his evidence that no marks of any such shot were found from the terrace wall although the terrace parapet wall was of the height of atleast 4 to 5 feet as admitted by the prosecution witnesses. This has also led the learned trial Judge to hold in favour of the accused that accused No. 2 might have fired the shot in the air to scare away the PSI from causing any injury to accused No. 2 and that, therefore, there was no intention on the part of accused No. 1 to cause death of the PSI meaning thereby accused No. 1 had not committed any offence punishable under Section 307 IPC. ( 19 ) WE find considerable substance in this submission urged by Mr Shethna for the defence. The prosecution case was that when accused No. 1 fired a shot from the pistol at the PSI, the PSI was standing while grappling with accused No. 2 and that accused No. 1 missed the aim only because the PSI ducked the shot and that the bullet marks were not found on the terrace wall because it was of only 4 to 4. 5 feet high. But in that case, the empty cartridge would have been found outside the house and would not be found in the terrace, whether near the flowers pot or elsewhere. In fact, PSI Mehta has also admitted in his cross examination that he was not aware as to in which direction and at what height the bullet had travelled. It is, therefore, quite probable that accused No. 1 had fired the shot from his pistol in the air to scare the PSI and the three constables who had followed him. We, therefore, hold that accused No. 1 was not guilty of the offence punishable under Section 307 IPC as it could not be said that while firing a pistol shot accused No. 1 had the intention of causing death of PSI SN Mehta when the PSI was grappling with accused No. 2 in the terrace. ( 20 ) HOWEVER, it is still required to be examined whether the aforesaid facts, while dislodging the prosecution case for the offence punishable under Section 307 IPC, are sufficient to bring the guilt against the accused for the offences punishable under Sections 186, 224, 225 and 353 IPC. ( 20 ) HOWEVER, it is still required to be examined whether the aforesaid facts, while dislodging the prosecution case for the offence punishable under Section 307 IPC, are sufficient to bring the guilt against the accused for the offences punishable under Sections 186, 224, 225 and 353 IPC. The major plank of the defence case is that when the incident took place, the accused were not aware that PW 1 complainant was a police officer or that the three persons following him were police constables because they were not in police uniform but they were in plain clothes. As far as this part of the defence version is concerned, it is true that the three constables were in plain clothes as admitted by them, but it is very clear from the evidence of PSI Mehta, PW 1, that he was involved in bandobast duty till 12. 30 in the night and thereafter on patrolling duty when he received the information about the two accused in the aforesaid offence hiding/sleeping in the house of Mulji Govind. This would clearly mean that PSI Mehta was in police uniform. Not a single suggestion was put to this witness that he was not in police uniform when he went to the house of Mulji Govind. The very fact that the accused herein were two out of the six accused in CR No. 188 of 1984 which offence was committed in the last week of August, 1984 and that within a period of about 5 weeks, a person in the police uniform had climbed up the terrace where they were sleeping, was more than sufficient to lead the accused to know that the person had come to arrest them in connection with the aforesaid offence. It is, therefore, not possible to accept that the accused could invoke Explanation 1 to Section 99 IPC invoked by Mr Shethna for the defence. Section 99 reads as under :-"act against which there is no right of private defence. 99. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. 99. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Event to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Explanation 1 : A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant. Explanation 2 :. . . . . . . . . . (emphasis supplied) .