Allahabad High Court
Prithvi Nath Pandey And Ors. vs State Of U.P. on 5 November, 1993
Equivalent citations: 1994CRILJ3623
ORDER J.P. Semwal, J.
1. This appeal filed by 13 appellants is directed against the judgment and order dated 25-3-1983 passed by the Special Judge (Additional Sessions Judge) Ballia in Sessions Trial No. 174 of 1980, convicting them under Section 332 and 225, IPC and sentencing each of them to undergo 3 years R.I. and one year's R.I. respectively and further convicting all of them except appellant Dhananjai Pandey under Section 342, IPC and sentencing each of them to undergo one year's R.I. All the sentences have been directed to run concurrently.
2. The prosecution case for the offences under Section 395, IPC against all the appellants and under Section 412, IPC against appellant Prithvi Nath Pandey were not found established and, therefore, the trial court acquitted all the accused-appellants for the said offences, they were charged with as mentioned above.
3. The prosecution case is that on 21-2-1980 constable Rajendra Prasad Tiwari (P.W. 1) was posted at police out-post Lalganj, Police Station Baria, District Ballia. On that date under the written order of S.I. Shyam Surat Misra, Constable Shripat Ram, H.C. Raghunath Rai along with licensees Bhrigu Prasad and Ramapathi Kesarwani had gone to arrest one Dhananjai Pandey to village Jagdishpur in Case Crime No. 42 of 1980, under Section 380, IPC. They reached on the spot at about 7.30 am Constable Rajendra Prasad Tiwari had a D.B.B.L. gun and cartridges belonging to Bhrigu Prasad and Constable Shripat Rai had a D.B.B.L. gun cartridges belonging to Ramapathi Keshari. They arrested Dhananjai Pendey and started to the police station. When they reached near the house of Ram Nath Pandey of the said village the remaining 12 accused persons and 4-5 others armed with Lathis came there and surrounded them. They wanted to see the warrant about the arrest of Dhananjai Pandey and the written order was shown to them. In the meantime the accused Yadunath Pandey, Ramdeo Pandey, Barmeshwar Pandey and Sheo Prasad caught hold of Constable Rajendra Prasad Tiwari (P.W. 1) and accused Prithvi Nath Pandey gave Lathi blow at his right hand and snatched his gun and they got Dhananjai Pandey accused released after assaulting Constable Rajendra Prasad Tiwari with Lathi and fists. In the meantime H.C. Ragnunath and Constable Shripat Rai advanced to apprehend the accused Dhananjai and to rescue Constable Rajendra Prasad Tiwari. Accused Ram Nath Pandey, and Ram Adhar Pandey started beating Constable Shripat Ram and accused Ram Nath Pandey snatched the gun of Shripat Rai and handed it over to accused Chandra Deep. Accused Uma Shanker Misra, Ram Nath Pandey, Chandra Deep Pandey and three-four others caught hold of H.C. Raghunath Rai and started beating him with fists. At this stage witnesses Panchanand Misra, Ram Lakhan Misra, Ram Nath Pandey, Rajbali Yadav arrived on the spot and saw the occurrence. In the meantime finding opportunity Constable Rajendra Prasad Tiwari (P.W. 1) rushed towards police station H.C. Raghunath Rai and Constable Shripath Ram, who were taken by the accused persons, were released. Constable Rajendra Prasad Tiwari lodged the first information report orally at police station Bairia on 21-2-1980 at 8.30 a.m. against the aforesaid 13 named persons and 4-5 unknown persons. H.C. Vindhyachal Singh (P.W. 8) prepared the chik report (vide Ex. Ka-1) and registered the case at serial No. 10 of the General Diary (vide Ex. Ka-11) S.I. Shyam Surat Misra along with H.C. Raghunath Rai and other police personnel accompanied by the informant left for the village Jagdishpur. Harish Chandara Misra, S.O. Police Station Baria, who was returning after patrolling duty from village Dubey Chhapra-Sudhar Chhapra, was informed by Constable Rama Prasad in Baria Bazar about the occurrence. In the meantime S.I. Ram Surat Misra had also come with force there. Then S.O. Harish Chandra Misra (P.W. 7) along with police force proceeded towards village Jagdishpur. On way, two public witnesses Uma Shankar Sahu and Barmeshwar were also taken with the police force. They then entered the village Jagdishpur and while they were near the plani of accused Ramdeo Pandey, they saw constable shripathi Ram and H.C. Raghunath Rai having been confined by the accused persons near the Plani of Ramdeo Pandey. On Seeing the police personnel, the accused wanted to run away, but eight of them, namely Yadunath Pandey, Chandra Deep Pandey, Raj Nath Pandey, Deena Nath Pandey, Ramanand, Ramdeo Pandey, Ram Nath Pandey and Uma Shanker Misra, could be arrested by the police. H.C. Ragunath Rai and Constable Shripati Ram were rescued from the confinement. The other accused persons succeeded in making good their escape. S.I. Ram Surat Misra prepared memo in respect thereof (vide Ex. Ka-2). Then accused Prithvi Nath Pandey was interrogated about the snatched guns and he told that the said guns had been concealed beneath the Latari crop in the Plani of Yadunath Pandey. S.O. Harish Chandra Misra (P.W. 7) along with witnesses Barmeshwar and Uma Shankar was taken by accused Prithvi Nath Pandey inside the Plani and got the recovery of two D.B.B.L. guns bearing Nos. 89101 and 3597 made. These guns were taken in possession and recovery memo (Ex. Ka-4) was prepared on the spot by S.I. Shaym Surat Misra. Thereafter, the informant S.I. Rajendra Prasad Tiwari, H. C. Ragunath Rai and Constable Shripat Ram were sent for medical examination.
4. The case was investigated initially by S.I. Shyam Surat Misra, who recorded the statement of the informant Constable Rajendra Prasad Tiwari, inspected the spot and prepared the site plans (vide Ext. Nos. Ka-5 and Ka-6). Thereafter, he took the statements of witnesses Uma Shankar, Barmeshwar Misra and Panchanand. The arrested accused persons were then taken to the police station by S.I. Shyam Surat Misra. The arrival of S.I. Shyam Surat Misra and the police personnel was entered at serial No. 17 of the general diary of 21-2-1980 at 12.05 p.m. (vide Ex. Ka-12) S.I. Shaym Surat Misra also recorded the statements of H.C. Raghunath Rai, Constable Shripat Ram as well as of Ramapati Prasad and Bhrigunath Prasad. The recovered D.B.B.L. guns were returned to licensees Bhrigunath and Ramapati by the order of the court.
5. The investigation of the case was transferred to S.O. Harish Chandra Misra (P.W. 7) by the order of the Dy. Superintendent of Police, Ballia, who commenced the investigation with effect from 8-3-1980. He recorded the statements of licensees Rampati and Brigunath. He also vistited village Jagdishpur where he recorded the statements of Ram Nath Pandey, Rajabli Yadav etc. On 12-3-1980 he recorded the statement of accused Dhananjai Pandey. After completing the investigation I.O. Harish Chandra Misra (P.W. 7) submitted charge-sheet against the accused persons (vide Ex. Ka-7).
6. Constable Rajendra Prasad Tiwari (P.W. 1), H.C. Raghunath Rai (P.W. 4), constable Shripat Ram (P.W. 2) were medically examined by Dr. V.P. Pandey, Incharge Women Dispensary, P.O. Baria, district Ballia, on 21-2-1980 at 11 a.m., 11.10 a.m. and 11.25 a.m. respectively.
7. Dr. V.P. Pandey found the following injuries on the person of Constable Rajendra Prasad Tiwari (P.W. 1):-
(1) Abbrasion 3 cm x 1/2 cm red in colour on the back and middle of left fore-arm. (2) Lacerated wound 1 cm x 1 / 2 cm x skin deep on the back of right thumb middle part, laterally. Bleeding present.
3) Lacerated wound 1 / 2 cm x 1 / 2 cm x skin deep, bleeding present placed on right thumb of hand, 1, 1/2 cm above the root of right thumb medially.
4) Contusion 3 cm x 1/2 cm red in colour, just below lower lid of right eye.
The injured complained of pain in chest, but no external mark of injury could be detected.
In the opinion of the doctor the injuries were caused by blunt weapon. Injuries were simple and duration was fresh.
Dr. Pandey (P.W. 7) found the following injuries on the person of Constable Raghunath Rai;
(1) Contusion 1, 1/2 cm x 1/2 cm red in colour, on the outer part of right eye.
The injured complained of pain, but no external mark could be detected. He also complained of pain on chest and body, but no external injury could be detected.
In the opinion of the doctor, these injuries were caused by blunt weapon. Nature was simple and duration was fresh.
The following injuries were found on the person of Constable Sripat Ram by Dr. Pandey:-
(1) Contusion 3.cm x 1-1/2 cm, red in colour, just below the lower lid of right eye. (2) Bruise 4 cm x 1/2 cm, red in colour, placed obliquely, just below the inferior angle of right scapular bone of back.
The injured complained of pain on right side of face, but no external injury could be detected.
The injured also complained of pain on the head backside, but no external injury could be detected.
In the opinion of the doctor these injuries were caused by blunt object. Nature was simple and duration was fresh.
8. As stated above, after completion of investigation, the charge-sheet was submitted by I.O. Harish Chandra Misra against the accused persons (vide Ex. Ka-7).
9. The prosecution in support of its case examined in all 9 witnesses. Out of them Constable Rajendra Prasad Tiwari (P.W. 1), Constable Sripat Ram (P.W. 2) and Panchanand (P.W. 3), H.C. Raghunath Rai (P.W. 4), Brigunath Prasad (P.W. 5) are witnesses of fact relating to the occurrence. Barmeshwar Misra (P.W. 6) is the witness who had accompanied the police force and is a witness of arrest of the accused persons and recovery of two guns. S.O. Harish Chandra Misra (P.W. 7) is the Investigating Officer who after completing the investigation submitted charge sheet as stated above. He also proved the investigation initially conducted by S.I. Shayam Surat Misra and the written order dated 15-2-1980 of S.I. Shyam Surat Misra (vide Ext. Ka-8) relating the arrest of accused Dhananjai Pandey and also the Phard-dakhila dated 24-2-1980 in the hand-writing and signature of S.I. Shyam Surat Misra(vide Ex. Ka-9). He also proved the memo of Supurdagi of guns on 19-2-1980 (vide Ex. Ka-10). S.I. Vindhyachal Singh (P. W. 8) is the witness who as Head Constable had prepared F.I.R. Chick report on the basis of the oral report of constable Rajendra Prasad Tiwari about the occurrence and made entries in general diary as stated above. He also made entry of the arrival of S.I. Shaym Surat Misra on 21-2-1980. He also proved the entries made at serial No. 6 of the general diary of Lalganj Police outpost, dated 21-2-1980, wherein the departure of the police personnel and the entries regarding return of recovered guns to the licencees (vide Ex. Ka-13). He also proved the memos of Supurdagi of the licensed gun (vide Ex. Ka-3 and Ex. Ka-10). Dr. V.P. Pandey (P.W. 9) is the witness regarding the medical examination of injured police personnel.
10. All the accused pleaded not guilty and denied the prosecution allegations. They pleaded that they have been falsely implicated.
11. Accused Prithvi Nath Pandey stated that the police had come on the date of occurrence and started taking search of his house. When asked as to why they were taking search they told that it was not his house and thereupon they beat him, Yadunat, Ramdeo, Chandra Deep, Rajnath, Uma Shankar Misra, and Ram Nath, as a result of which they received injuries.
12. Accused Ramanand Pandey, Ramdeo Pandey, Rajnath Pandey, Yadunath Pandey and Chandra Deep Pandey also pleaded that they were beaten and were taken after being arrested by the police. Accused Shiv Prasad Pandey, Barmeshwar Pandey, Ram Adhar Pandey, Ishwar Dayal Pandey and Dhananjai Pandey denied their presence on the spot at the time of occurrence.
13. Accused Ram Nath Pandey, who is the father of accused Dhananjai Pandey, stated that he was arrested in the village but he was not beaten. Accused Uma Shankar Misra stated that the police personnel were beating Prithvi Nath and others in his house and when he made protest, they aslo beat him and took him after arrest.
14. In defence the accused examined one Ramdas Yadav, Compounder of Districta Jail Hospital, to prove the injuries of accused Prithvi Nath, Yadu Nath Pandey, Uma Shankar, Raj Nath Pandey, Chandra Deep, Pandey, Ramanand Pandey and Ramdeo Pandey (vide Ex. Kha-1 to Kha-7) on their medical examination on 23-2-1980 by Jail Doctor Fateh Bahadur Singh at the time they were admitted in jail.
15. D.W. 1 Ram Das Yadav had brought the register in which the entries were made. The following injuries were found on the accused side:
Injuries found on the person of accused Yadu Nath Pandey:
(1) Contusion 10 cm x 5 cm on the lateral side of left thigh just above the knee. (2) Contusion 2 cm x 1 cm on the lateral side of left knee joint.
(3) Contusion 4 cm x 3 cm on the calf-muscles of left leg.
(4) Contusion 4 cm x 3 cm on the lateral side of left ankle joint. (5) Lacerated wound of 2 cm x 1/2 cm into muscles deep on the front of Rt. leg vertical direction. (6) Lacerated wound 1 cm x 1/2 cm into muscles deep on the front of left leg on its middle oblique vertical direction.
Colour bluish. Serum discharged from the wound. No bleeding, no pus. Nature-simple caused by blunt object. Duration about 1 to 2 days back.
Injuries found on the person of accused Uma Shankar.
(1) Contusion of 4 cm x 3 cm on the lateral side of Lt. leg.
(2) Lacerated wound of 2 cm x 1 / 2 cm into bone deep on the front of Rt. leg in its middle vertical direction, u/o, advised X-ray.
(3) Contusion 3 cm x 2 cm on the dorsom of Rt. hand.
(4) Contusion 3 cm x 2 cm on the back of Rt. elbow.
All the injuries-bluish colour wounds, serum discharged. No pus. Nature-simple, except injury No. 2, u/o, advised X-ray for opinion. Caused by blunt object. Duration 1 to 2 days back.
Injuries found on the person of accused Raj Nath Pandey:
(1) Contusion 3 cm x 2 cm on the back of Lt. upper arm in its middle. ' (2) Contusion 4 cm x 3 cm on the root of left thumb.
(3) Contusion 5 cm x 2 cm on the back of Rt. elbow.
(4) Contusion 4 cm x 2 cm on the front of Rt. leg in its middle.
Colour-bluish, Nature-All simple caused by blunt object. Duration about 1 to 2 days back.
Injuries found on the person of accused Chandra Deep Pandey:
(1) Contusion 2 cm x 1 cm on the back of Rt. elbow joint. (2) Contusion 3 cm x 2 cm on the lateral side of Rt. leg just above the ankle joint. (3) Contusion 4 cm x 2 cm on the lateral side of Rt. leg just above the ankle.
Colour-Bluish. Nature-All simple caused by blunt object. Duration about 1 to 2 days back.
Injuries found on the person of accused Ramanand Pandey:
(1) Contusion, 3 cm x 2 cm on the Rt. side back in its middle. (2) Contusion 2 cm x 1 cm on the back of Lt. elbow.
(3) Lacerated wound of 1 cm x 1 / 2 cm into muscles deep on the front of Rt. leg vertical direction in its middle. (4) Contusion 4 cm 3 x cm on the back of Lt. Calf muscles of the left leg.
Colour-Bluish, serum discharge and no pus seen in wounds. Duration about 1 to 2 days back. Nature-All simple, caused by blunt object.
Injuries found on the person of accused Ramdeo Pandey:
(1) Contusion 6 cm x 4 cm on the back of Rt. elbow joint. (2) Contusion 3 cm x 2 cm on the dorsum of, Rt. hand.
(3) Contusion of 4 cm x 2 cm on the front of Lt. hand.
(4) Contusion 3 cm x 2 cm on the front of Rt. knee joint. (5) Contusion 4 cm x 3 cm on the calf muscles of Lt. leg. (6) Contusion 3 cm x 2 cm on the front of Rt. knee joint.
Colour Bluish, Nature-All simple caused by blunt object. Duration about 1 to 2 days back.
Injuries found on the person of accused Prithvi Nath:
(1) Contusion 4 cm x 3 cm on the dorsum of Rt. hand, u/ o, Advised - X-ray. (2) Contusion 3 cm x 2 cm on the dorsum of left hand.
(3) Contusion of 4 cm x 3 cm on the back of left forearm. (4) Contusion of 10 cm x 3 cm on the front of left leg in its middle.
(5) Contusion of 5 cm x 3 cm on the calf muscles of Rt. leg. (6) Contusion 3 cm x 2 cm on the front of left ankle joint.
Colour-All bluish, Nature-All simple, except injury No. 1, u/o Advised - X-ray.
caused by blunt object. Duration about 1 to 2 days back.
16. Defence witness, Babban Pandey (D.W.2) of village Jagdishpur, P.S. Baria, District Ballia has given evidence regarding this search of the house of accused Prithvi Nath Pandey by the police and damaging the articles and that on protest the police started Beating accused Yadunath Pandey and others with Dandas and that injured Yadunath Pandey, Chandra Deep Pandey, Ram Nath Pandey, Prithvi Nath, Ramanand Pandey and Ramdeo Pandey accused were residing in one house. He also gave evidence that seven persons received injuries and police personnel took after arresting them and on way in village they met Ram Nath Pandey accused, who made enquiry from the police and thereupon he was also arrested and taken. He also gave evidence that the matter was enquired into by. the District Magistrate and C.I.D. and that he had narrated the aforementioned facts to them also. Ex. Kha-8 and Kha-9 are the copies of the information dated 10-11-1982 and 1-8-1982. Ex. Kha-10 is the extract of Kutumb Register.
17. Learned trial court after considering the evidence on record found that the prosecution has miserably failed to establish the guilt of the accused persons beyond reasonable doubt regarding the offence punishable under Section 395, IPC and against accused Prithvi Nath for the offence punishable under Section 412, IPC. The trial court, however, found the prosecution case with Regard the remaining offences absolutely proved and consequently recorded conviction against all the accused persons for the offences under Sections 332 and 225, IPC and further recorded finding of conviction against all the accused persons except accused Dhananjai Pandey for the offence punishable under Section 342, IPC and sentenced them as already stated above.
18. I have heard Sri G.P. Dixit and Sri Gopal Chaturvedi learned counsel appearing for the appellants and Sri K.C. Saxena, Addl. Govt. Advocate, in opposition, and also carefully perused and considered the evidence and material on record.
19. As regards the offences under Section 395, IPC and Section 412, IPC the prosecution case was not found to have been established by the prosecution. The trial court has mentioned that it is the definite case of the prosecution that the two guns alleged to have been snatched away belonged to public witnesses, namely Ramapati Prasad and Bhrigunath Prasad. These two guns were not produced, nor the licences thereof were filed in the court. The trial court has not accepted the prosecution version that police constables had gone to arrest accused Dhananjai with the two guns of public witnesses. The testimony of Bhrigunath Prasad (P.W. 5) has not been accepted by the trial court. I have also perused the evidence on record and I also find the prosecution case doubtful in this respect. It is significant to note that in the F.I.R. there is no mention that the two public witnesses Bhrigunath Prasad and Ramapati had accompanied constables Rajendra Prasad Tiwari, Shripat Ram along with H.C. Raghunath Rai to Jagdishpur for arresting accsued Dhananjai Pandey. During the trial, however, an attempt was made to make improvement that these public witnesses to whom the said D.B.B.L. guns belonged had also accompanied the police personnel. The prosecution examined Head Constable Vindhyachal (P.W. 8) who had scribed the chick F.I.R. on oral report by Constable Rajendra Prasad Tiwari. This witness has proved the general diary entry at serial No. 6 dated 21-2-1990, which is in the hand writing of H.C. Raghunath Rai and it contains the entry of departure of police personnel and Wapsi for calling licenesees (vide Ex. Ka-13 extract). In his cross examination, this witness admitted that there were double entries in this general diary which, according to him, appears to have been made due to mistake. It is clear from his statement that the entry regarding taking public witnesses has been added second time. The lower court has rightly not placed reliance on this entry which is not above suspicion. Apart from this, if these two public witnesses would have accompanied the police party, they would have also received injuries when they were surrounded and attacked by the accused persons. It is significant to note that the police personnel had gone with two guns as well as cartridges. I. O. Harish Chandra Misra (P. W. 7) has admitted in his cross-examination that the constables had cartridges with belt but he did not prepare any memo in respect thereof, nor made any mention in this regard in the case diary. This again creates doubt about the guns having been in possession of the police personnel and it does not stand to reason that accused persons would have snatched away the guns from the police personnel and would have spared the cartridges. It also does not stand to reason that they would have so easily allowed the guns to have been snatched from them. The trial court has rightly discarded the prosecution story regarding D.B.B.L. guns of the public witnesses having been taken by Constables Rajendra Prasad Tiwari and Sripat Ram and the alleged recovery of the said D.B.B.L. guns from the Plani of Yadunath Pandey as alleged.
20. Now it is to be seen, whether the prosecution has been able to prove its case with respect to offences under Sections 332/225/342 I.P.C. It may be added at the very outset that so far as the visit of the aforesaid three police personnel to village Jagdishpur is concerned, the same is not disputed. Constable Rajendra Prasad Tiwari (P.W. 1), Constable Shripat Ram (P.W. 2), H. C. Raghunath Rai (P.W. 4) had gone to village Jagdishpur on 21-2-1980 to arrest accused Dhananjai who was involved in case Crime No. 42 of 1980 under Section 380 I.P.C. They reached the village at about 7.30 a.m. This fact is proved by the testimony of the aforementioned three police personnel and the entry made in Ex. Ka-13. The F.I.R. itself corroborates this fact. There is nothing jn the Cross-examination of these witnesses to discard their testimony in this regard. In fact, the visit of the said police personnel is not disputed by the defence. The defence has also not disputed the occurrence of Marpit. The controversy is regarding the manner of occurrence.
21. According to the prosecution, the said police personnel arrested the accused Dhananjai at his door and when they were bringing him to police station and had reached near the house of accused Ramnath, the remaining twelve accused persons and 3-4 others armed with lathis came and surrounded the police party and arrested accused Dhananjai. The accused persons asked as to why Dhananjai has been arrested and also asked for the warrant of his arrest. Further case of the prosecution is that the written order dated 15-2-1980 of S. I. Shyam Surat Misra (Ext. Ka-8) was shown to them. This, however, did not satisfy the accused persons and they started attacking the police party, as a result of which Constable Rajendra Prasad Tiwari (P.W. 1), Constable Shirpat Ram (P.W. 2) and H. C. Raghunath Rai (P.W. 4) received injuries (vide injury reports, Exs. Ka-14 to Ka-16). The prosecution case further is that when the police party was attacked, they snatched Lathis from the accused persons and gave Lathis blows to the accused persons in their defence; that one of the plolice personnel, namely Constable Rajendra Prasad Tiwari (P.W. 1) managed to escape and went to inform the police of police station Bairia, where in hurry he lodged the oral report. The accused persons took with them Constable Sripat Ram and H.C. Raghunath Rai towards village, where they were confined near the Plani of accused Ramdeo Pandey, from where they were rescued by the police party headed by S.O. Harish Chandra Misra (P.W. 7).
22. According to the defence version, the police personnel had come to the house of accused persons and without warrant they started taking search and damaging articles. When protest was made, accused Prithvinath Pandey, Yadunath Panday, Ramdeo, Ramanand Pandey, Rajnath Pandey, Chandra Deep Pandey and Uma Shanker Pandey were beaten causing injuries to them.
23. Now it is to be seen, which of the two versions is true or probable. So far as the accurrence of Marpit is concerned it is not disputed. Constable Sripat Ram (P.W. 2) in this cross-examination deposed categorically that there was Marpit between both sides. He, however, could not say as to which of the accused received injuries. The evidence and material on record leave no room for doubt that on the side of police party all the three police personnel, namely Constable Rajendra Prasad Tiwari (P.W. 1), Constable Shripat Ram (P.W. 2) and H. C, Raghunath Rai (P.W. 4) received injuries (vide Exts. Ka-14 to Ka-16), and on the accused side seven accused persons, namely accused Prithvi Nath Pandey, Uma Shankar, Rajnath Pandey, Chandra Deep Pandey, Ramanand Pandey, Ramdeo Pandey, received injuries (vide Exs. Ka-1 to Kha-7).
24. Learned counsel for the accused-appellants levelled several criticisms against the findings of the lower court. First criticism is that the prosecution has come with two versions, one in F.I.R. and the other in evidence. It was urged that in the F.I.R. the allegation is that the police party had gone to arrest Dhananajai with D.B.B.L. guns of two private persons and in evidence the prosecution has taken the case that the two private persons had also accompanied the police party. No doubt, the prosecution version regarding D.B.B.L. guns of two private persons accompanying the police party has not been accepted by the trial court but that does not destroy the substratum of the prosecution story that the police party had gone to arrest Dhananjai Pandey. As already stated, the visit of the police party and the occurrence of Marpit have not been disputed, hence this criticism of the learned counsel is of no consequence.
25. The second criticism is that during the trial, improvement was made at late stage that police had arrested Dhananjai and while he was being escorted he was rescused by the accused party. This criticism is of no consequence and appears to have been made on the basis of the typed copy of the F.I.R. in the Paper book. In this typed copy of the F.I.R. there is a mention i.i the 9th line that the police party in order to arrest Dhananjai Pandey reached the house of Ramnath Pandey. This has not been correctly typed. I have perused the original chik-report (Ex. Ka-1). The words are not "Giraftar Karne" but are "Giraftar Karke". It is thus clearly mentioned in the F.I.R. that the police party reached near the house of Ramnath Pandey after arresting Dhananjai Pandey. Apart from this, it is quite clear from the latter part of the F.I.R. that the accused persons rescued Dhananjai Pendey after attacking the police party. This criticism is, therefore, also devoid of force.
26. The next criticism is that the prosecution has not given any explanation of the injuries received by seven accused persons. No doubt, in the F.I.R. no such explanation has been given but during the evidence the witnesses had stated that Lathis were snatched from the accused persons and then in self-defence the police party gave lathi blows to accused persons. The accused persons thus have received injuries in the same occurrence in which the police personnel have received injuries. It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurence See Hare Krishna Singh v. State of Bihar. It was been observed in the aforesaid case by the Supreme Court that the burden to prove the guilt of the accused is undoubtedly on the prosecution and the accused is not bound to say anything in derfence. The prosecution has to prove the guilt of the accused beyond all reasonable doubt. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obliga tion of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly neces sary for the prosecution to again explain as to how and in what circumstances injuries have been inflicted on the person of the accused. In the instant case, the definite case of the prosecution is that the police party had gone to arrest Dhananjai Pandey, who was rescued by the accused persons after attacking the police party and two police personnel, namely Constable Sripat Ram and H. C. Raghunath Rai were wrongfully confined by them. The Court will examine the prosecution evidence to find out, whether the case of the prosecution is established beyond reasonable doubt. The criticism regarding non-explanation of the injuries of the accused persons is thus not of much consequence in the present case. The prosecution has, however, given explanation during the trial. It may be mentioned here that Constable Rajendra Prasad Tiwari (P.W. L) had rushed to police station and lodged the oral report which was scribed in hurry. Constable Rajendra Prasad Tewari, who had received injuries in the occurrence, has not even mentioned about this unjuries which is indicative of the fact that his anxiety at that moment was to rescue his two associate police personnel who had been captured and confined by the accused party. Consequently, this criticism is also devoid of any force.
27. The last criticism is that the prosecution version of the occurrence is not at all reliable and the lower court has erred in accepting the same. Learned counsel advanced four-fold arguments in this regard. Firstly, it was argued that there are 32 injuries on the person on the seven accused persons while the three police personnel received only 7 injuries and that the injuries of the accused party cannot be received in the manner of the occurrence suggested by the prosecution by snatching Lathis from the accused persons. Secondly, it was argued that the police party had no warrant with them and that the evidence of the witnesses that the warrant was shown is not acceptable in view of the fact that the warrant was not torn off or damaged during the attack. Thirdly, it was argued that the assembly of the accused persons Was not unlawful as the villagers had assembled on the arrival of the police who started taking search and ransacking the house of the accused persons. Fourthly, it was argued that the police party had ransacked the house of the accused and had misbehaved with the family members of the accused and the said act of police party was not in discharge of official duty, nor it was under the colour of the office.
28. The last criticism depends on the manner of the occurrence itself. The origin of the occurrence is different and varying according to the prosecution as well as the defence. The prosecution has examined three police personnel, namely Constable Rajendra Prasad Tiwari (P.W. 1), Constable Sripat Ram (P.W. 2) and H.C. Raghunath Rai (P.W. 4) and also Bhrigunath Prasad (P.W. 5) as also Panchanand (P.W. 3) regarding the occurrence. Barmeshwar Pandey (P.W. 6), S.O. Harish Chandra Misra (P.W. 7) are witnesses regarding rescuing H.C. Raghunath Rai and Constable Sripat Ram. The defence has examined Kedar Pandey (D.W. 2) in support of the defence version of the occurrence.
29. Let us now examine the evidence admistted on record to find out as to which version of the occurrence is acceptable.
30. The fact that the prosecution testimony has not been accepted regarding D.B. B.L. guns of private persons and the private persons accompanying the police party do not necessarily make the testimony of the prosecution witnesses untrustworthy. The maxim "falsus in uno, falsus in omnibus" i.e. false in one thing false in every thing, is neither a sound rule of law, nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embelishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitious metaphor, separate the grain from the chaff (See , Ugar Ahir v. State of Bihar). Thus, the testimony of the Prosecution witnesses which is found to be false in regard to one fact cannot be rejected out-right as a whole, if it can be accepted on cumulative evidence and other material on record. Where witnesses try to embelish or exaggerate and there are discrepancies and contradictions the broad features of the evidence of the prosecution cannot be doubted on that ground alone. Merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses it does not mean that the entire evidence of the prosecution has to be discarded.
31. It may also be mentioned here that the testimony of the police personnel cannot be rejected merely on the ground that they belong to police department and are involved in the alleged occurrence. Their testimony can be relied upon if it inspires confidence and where no hostility with the accused is shown (See , Nathu Singh v. State of Madhya Pradesh). On careful scrutiny of the cumulative evidence and the material on record, the prosecution version is proved beyond reasonable doubt and the defence version is not at all probabilised. The definite case of the prosecution is that the police personnel had gone to arrest Dhananjai Pandey and this fact is proved from the G. D. entry as well as the F.I.R. which was promptly lodged as also the fact that two police personnel H. C. Raghunath Rai and Constable Sripat Ram were confined by the accused persons and were rescued by the police party. As already stated, the defence has not disputed at all that the aforesaid two police personnel were confined by the accused party and they were rescued by the police party. The incident of Marpit is also not disputed by the defence. The defence has, however, disputed the prosecution version regarding the manner of incident. According to defence version, the police party had ransacked the house of the accused and when protested and asked as to why they were taking search, the police personnel beat Prithvinath Pandey and others causing injuries to the accused persons.
32. Learned counsel for the defence has vehemently argued that the two police personnel were confined to show them to the police inspector and to make protest against the action and misbehaviour of the police personnel. As regards the contention that the police personnel misbehaved with the family members of the accused, there is no whisper in this regard in the statements of the accused persons under Section 313 Cr. P.C., nor in the statement of Kedar Pandey (D.W. 2). The police party had gone in police uniform in the morning hours and it does not stand to reason that they would go to the house of the accused persons for misbehaving or ransacking as alleged after making entry of departure in the General Diary.
33. As regards the prosecution version of the occurrence, the same has been fully established by the testimony of Constable Rajendra Prasad Tiwari (P.W. 1), Constable Shripat Ram (P.W. 2) and H. C. Raghunath Rai (P.W. 4), who were injured in the occurrence and whose presence is not disputed by the defence. Their testimony regarding their visit to village Jugdishpur to arrest accused Dhananjai Pandey is amply proved by the testimony of prosecution witnesses, which finds corroboration from the entry in the General Diary and the F.I.R. which was. lodged promptly. Constable Rajendra Prasad Tiwari has deposed that they arrested Dhananjai Pandey at his door and that when they were bringing him to police station and had reached near the house of accused Ramnath Pandey, the accused persons along with 3-4 others came there and they were armed with Lathis and they surrounded the police party and asked them to show warrant, which was shown and also read out to them. The details of the manner of occurrence have been given by the prosecution witnesses, which need not be repeated again. It is in evidence that H. C. Raghunath Rai as well as Constable Sripat Ram snatched Lathis from the accused and used the same in self-defence. Seeing the number of persons swelling, Constable Rajendra Prasad Tiwari ran away from that place and rushed to the police station, where he lodged the oral report (Ex. Ka. 1). He was cross-examined regarding snatching of Lathis regarding which he had not mentioned in the F.I.R. This witness stated that at that time he was puzzled and, therefore, he had omitted to mention this fact in the F.I.R. It is quite natural that at that moment when this witness had rushed from the place of occurrence to the police station and lodged oral report in hurry, even not mentioning about his injuries. At that moment, it is not expected that he will give out each and every details of the incident. At that time his anxiety was to get rescued his two associates who had been captured and confined by the accused party. The other two prosecution witnesses, namely Constable Sripat Ram (P.W. 2) as well as H. C. Raghunath Rai (P.W. 4) have corroborated the testimony of Constable Rajendra Prasad Tiwari in substance. These two witnesses were also attacked by the accused party causing injuries to them. Constable Sripat Ram also managed to snatch a Lathi and used the same in self-defence. In the searching cross-examination of Constable Rajendra Prasad Tiwari nothing has been elicited out which may cast doubt on his testimony. His testimony has been corroborated by Sripat Ram (P.W. 2) who deposed that while going to arrest Dhananjai Pandey to Jagdishpur no one met them on the way except Dhananjai Pandey at his door and that Dhananjai Pandey had not asked them anything before his arrest. This witness, however, could not tell as to who had received injuries on the side of accused persons but affirmed that the accused persons received injuries when they rescued Dhananjai Pandey and that Marpit had taken place from both sides. H. C. Raghunath Rai (P.W. 4) has also corroborated the prosecution story. He was also confined by the accused party near the Plani (Thatch) of Ramdeo Pandey. He deposed that he had also used Lathi-Dhanda in self-defence, as a result of which the accused persons received injuries. He also deposed that he had shown the order of arrest (warrant) of accused Dhananjai Pandey when demanded, but even then the accused persons attacked the police party and rescued Dhananjai Pandey. In his cross-examination, he categorically deposed that the written order of arrest was received at the police outpost 7-8 days earlier and the same is entered in the 'Raseed-bahi' of the police out-post. He has denied the suggestion of the defence that no written order of arrest had been received at the police out-post. Ex. Ka-8 is the written order for arrest of Dhananjai Pandey, son of Ramnath Pandey, r/o Village Jagdishpur under Section 380 I.P.C. in Case Crime No. 42 of 1990, issued on 15-2-1980 by S. I. Shyam Surat Misra of police station Baria, Ballia and this direction was given to the aforesaid three witnesses-Constable Rajendra Prasad Tiwari, Constable Sripat Ram and H. C. Raghunath Rai. He categorically deposed that the accused persons received injuries when they were trying to rescue Dhananjai Pandey. He had denied the suggestion thrown by the defence that he had not received any injury in the incident and that he got fabricated the same after pressurising the Doctor. As regards the injuries of these three police personnel, Dr. V. P. Pandey (P.W. 9) has proved the injuries of Constable Rajendra Prasad Tiwari, Constable Sripat Ram and H.C. Raghunath Rai (vide Exs. Ka-14 to Ka-16) and, according to the doctor, these injuries could have been caused on 21-2-1980 at 7.30 a.m. There is nothing in his searching cross-examination which may cast any doubt on his testimony. He unequivocally repelled the suggestion that injuries of Constable Rajendra Prasad Tiwari, Constable Sripat Ram and H. C. Raghunath Rai were superficial. Dr. Pandey denied the suggestion that the aforesaid police personnel had not received any injury and that the injuries have been fabricated in league with police. Dr. Pandey is an independent witness and he had no hostility towards the accused, nor he could be interested in the prosecution version as he had no axe to grind against the accused persons. The suggestion of the defence is, therefore, without any substance. The evidence of the prosecution witness is backed by the medical evidence. Conjectural alternatives as against the eye-witnesses account cannot be substituted in place of accepted evidence of those who had actually seen the incident. If the accused party can capture and confine two police personnel and when accused party was armed with Lathis-Dandas it cannot be ruled out that they had attacked and inflicted injuries to the aforesaid three police personnel. As already stated neither their presence is disputed, nor the incident of Marpit is disputed by the defence. Hence the defence suggestion is devoi1 of any force.
34. The aforesaid police personnel have given the details of the manner in which the occurrence had taken place and it. may be mentioned that the occurrence had taken place abruptly when the police party was taking arrested accused Dhananjai to police station and the accused party emerged from behind wielding Lathis and they attacked and inflicted injuries to police party and rescued Dhananjai Pandey. At that juncture it is not expected, nor is it probable for these witnesses that they would have noted each and every details. In that situation they are also not expected to give more than a general account of the incident. It could not be possible for these witnesses in that situation to have noticed the manner, sequence and each and every detail of the incident and to give graphic description of the occurrence. It is quite natural for these witnesses to get confused about the details of the manner of the incident and to have mistaken impression or belief. In most cases the witnesses, when asked about the details, venture to give some answer not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed or in which they are involved but that is not to say that their evidence as to the salient feture of the case after cautious scrutiny cannot be considered. The courts have to rely more on human probabilities than on the assertions of the witnesses. The substratum of the prosecution case that the police party had gone to arrest Dhananjai Pandey and after his being arrested when he was being brought to police station the accused party attacked police party and rescued Dhananjai Pandey is not destroyed by mere omissions of details or descrepancies or contradictions in the details of the manner of the occurrence. The prosecution has thus proved beyond reasonable doubt the prosecution story.
35. The fact that H. C. Raghunath Rai (P. W. 4) and Constable Sripat Ram (P.W. 2) were confined and rescued is not disputed and is amply proved by the testimony of Constable Sripat Ram (P.W. 2), H. C. Raghunath Rai (P.W. 4), S. O. Harish Chandra Misra (P;W; 7) and Barmeshwar Misra (P;W, 6). S. O. Harish Chandra Misra (P.W. 7) arrested accused Yadunath Pandey, Chandra Deep Pandey, Raj Nath Pandey, Deena Nath Pandey, Ramanand Pandey, Ramdeo Pandey, Ram Nath Pandey and Uma Shankar Misra on the spot where they had confined Constable Sripat Ram and H. C. Raghunath Rai. Barmeshwar Misra (P.W. 6) is a public witness, who had accompanied the police force and had also witnessed the rescuing of the confined police personnel and the arrest of the aforesaid eight accused persons.
36. Thus the prosecution case is fully established beyond reasonable doubt by positive and direct evidence. This evidence cannot be ignored merely on the basis of chimerical speculations and cannot be rejected merely on the basis of the suggestions put on behalf of the defence. After careful scrutiny of evidence on record, in my opinion, the prosecution version regarding the manner of occurrence is acceptable and the testimony of the prosecution witnesses inspires confidence. There is no logical ground to discard the testimony of these prosecution witnesses, while the defence version regarding the manner of occurrence is not at all probabilised.
37. The argument of the learned counsel for the appellants that 30 injuries on the person of seven accused persons in the occurrence cannot be received in the manner of occurrence suggested by the prosecution has no force. The fact remains that seven accused persons received 32 injuries at the hands of three police personnel. So far as number of injuries are concerned, it is immaterial whether the occurrence had taken place as alleged by the defence or as alleged by the prosecution. However, the prosecution has proved its version of the occurrence and the injuries of seven accused persons which could be received in the occurrence. It is also possible that these seven injured accused who were arrested by the police force headed by S. O. Harish Chandra Misra might have received some of the injuries at the time of their arrest. The contention of the learned counsel for the appellants has thus no force.
38. As regards the next contention that the warrant was not torn off and damaged during the attack goes to indicate that the warrant was not with the police party, this contention also has no force because H. C. Raghunath Rai (P.W. 4) has categorically deposed in his cross-examination that he had shown the order of arrest of the accused (warrant) and thereafter he kept it inside his pocket.
39. The third and fourth arguments of the last limb of criticism, that the police party had ransacked the house and misbehaved with the family members of the accused have also no force. These arguments depend on the veracity of the defence version regarding the manner of the occurrence that the police party had misbehaved with the family members of the accused and ransacked the house of the accused persons. No doubt, if the defence version would have been true, it could be said that the police personnel had not acted in the discharge of their official duty or under the colour of their office. In the present case, the police party had written order of arrest of accused Dhananjai Pandey and they had gone to village Jagdishpur for the said purpose and it was in discharge of their official duty that they had arrested accused Dhananjai Pandey. The action of the accused party was illegal and is not protected by any provision of law. No doubt, if the police party had entered into the house of the accused without the written order of arrest, i.e. warrant, or authority of law to search out and try to molest the women folk then the accused had certainly every right to inflict injuries and apprehend the police personnel in the exercise of right of private defence. In the present case, the police personnel were acting in lawful discharge of their official duty within the meaning of Saction 332 of the Indian Penal Code and consequently the accused cannot plead the right of private defence.
40. Now we come to the offences which have been committed by the accused-appellants. The trial court found all the accused-appellants guilty for the offences under Sections 332 I.P.C. and 225 I.P.C. and found all the accused-appellants except Dhananjai Pandey guilty for the offence under Section 342 and sentenced them under all these sections as indicated above.
41. As already stated, Constable Rajendra Prasad Tiwari(P.W. 1), Constable Sripat Ram (P.W. 2) and H.C. Raghunath Rai (P.W. 4) had gone to arrest accused Dhananjai Pandey under the written order of S. I. Shyam Surat Misra of Police Station Bairia. After arresting the said Dhananjai Pandey while they were bringing him to police station and had reached near the house of Ramnath Pandey-accused in village Jagdishpur, the remaining 12 accused persons along with 4-5 others armed with Lathis are alleged to have emerged out and surrounded them. As alredy stated, they wanted to see the warrant of arrest of Dhananjai Pandey, which was shown to them and read out to them. This, however, did not satisfy the accused party. They attacked the said police personnel and rescued accused Dhananjai Pandey. Now let us find out as to who were the accused persons who had participated in securing the release of Dhananjai Pandey. Constable Rajendra Prasad Tiwari (P.W. 1) was holding the accused and when H. C. Raghunath Rai (P.W. 4) showed and read out the warrant to them, in the meantime accused Yadu Nath Pandey, Ramdeo Pandey, Barmeshwar Pandey, Shiv Prasad Pandey caught hold of Rajendra Prasad Tiwari (P.W. 1) in an attempt to rescue Dhananjai Pandey. Accused Prithvi Nath Pandey gave Lathi blow on his right hand and snatched his gun. This theory of snatching the gun has not been accepted, hence the role of Prithvi Nath Pandey in this act is not acceptable. It is further stated that in the meantime when his associates Constable Sripat Ram and H. C. Raghunath Rai advanced, accused persons caught hold of them and started attacking. According to Rajendra Prasad Tiwari, accused Raj Nath Pandey snatched the gun of Constable Sripat Ram and handed over to accused Chandra Deep Pandey. Constable Sripat Ram (P.W. 2) corroborated the testimony of Constable Rajendra Prasad Tiwari (P.W. 1) and deposed that when he and H. C. Raghunath Rai advanced towards Constable Rajendra Prasad Tiwari and to apprehend accused Dhananjai Pandey, in the meantime, accused Raj Nath Pandey, Ramnath Pandey and Ram Adhar Pandey surrounded them and started attacking and accused Raj Nath Pandey snatched his gun and handed over to accused Chandra Deep Pandey. The theory of snatching of the gun has been discarded and accused Chandra Deep Pandey had not been assigned any other role except that the gun was handed over to him, hence his participation in the alleged act is also not acceptable. The participation of accused Ramnath, who is non-agrarian and who did not take any active role in the occurrence, also appears doubtful and, therefore, he is also entitled to benefit of doubt.
42. H. C. Raghunath Rai (P. W. 4) has corroborated the testimony of Constable Sripat Ram (P. W. 2) and deposed that accused Uma Shankar Misra, Ramnath Pandey, Ishwar Dayal and 3-4 others caught hold of him and started beating him and then Constable Sripat Ram also used lathi in self-defence, as a result of which accused persons received injuries.
43. It is thus quite evident that accused Yadunath Pandey, Ramdeo Pandey, Barmashwar Pandey, Shiv Prasad Pandey, Rajnath Pandey, Ramanand Pandey, Ram Adhar Pandey, Uma Shamkar Misra and Ishwar Dayal had participated in securing the release of Dhananjai Pandey from the custody of police party and they had voluntarily caused hurt to Constable Rajendra Prasad Tiwari, Constable Shripat Ram and H. C. Raghunath Rai who were taking accused Dhananjai Pandey after arrest in discharge of their duty being public servants to the police station. These 9 accused persons had used criminal force in securing the release of accused Dhananjai Pandey. Accused Dhananjai Pandey had been legally arrested by them and they were taking him to police station when these 9 accused persons by attacking them forcibly secured the release of Dhananjai Pandey. Thus, the aforementioned 9 accused persons committed offence punishable under Section 225 I.P.C. as well as under Section 332 I.P.C.
44. So far as accused Prithvi Nath'Pandey, Chandra Deep Pandey and Ram Nath Pandey are concerned, their active participation in the aforesaid offences under Sections 225 and 332 I.P.C. is not proved beyond reasonable doubt and consequently they are entitled to benefit of doubt.
45. As regards accused Dhananjai Pandey, it may be mentioned here that definite case of the prosecution is that the accused party had rescued Dhananjai Pandey forcibly from the legal custody of police party when they had legally arrested him. There is neither any allegation in the F.I.R. (Ex. Ka. 1), nor is there any cogent and reliable evidence to indicate that Dhananajai Pandey had also attacked the police party or had made any effort with intent to prevent or deter the police personnel from discharging their duty as public servants. There is only the evidence of H. C. Raghnath Rai (P.W. 4) whq deposed that when accused party started rescuing Dhananjai Pandey, the said accused himself also made attempt to save himself from arrest. It is not the prosecution case that when they had gone to arrest Dhananjai Pandey he had made any attempt to prevent or deter the, police party from arresting him, nor that he had asked the police party to show the warrant (written order of arrest). The theory of the prosecution that serious attempt was made to apprehend Dhananjai Pandey who was rescued is not believable in the circumstances of the case. The three police personnel who had come to arrest Dhananjai Pandey and were taking him to police station after arresting him were attacked by accused party and they had forcibly secured the release of the accused Dhananjai Pandey. Further both sides received injuries in the said scuffle but Dhananjai Pandey did not receive any injury. This also indicates that no attempt was made by the police party to apprehend him after he was rescued. In fact, there was no occasion for the police party to do so because Constable Rajendra Prasad Tiwari had escaped from the place of occurrence and two other police personnel were captured by the accused party and were wrongfully confined near the Plani of Ramdeo Pandey wherefrom they were subsequently got released by the police force. Thus, we do not find any participation of accused Dhananjai Pandey in the offence under Section 332 I.P.C. and he has been wrongly convicted and sentenced under Section 332 I.P.C. No doubt, Dhananajai Pandey was rescued by accused party and he himself thereafter escaped from the lawful custody but for such of his act he cannot be held guilty for the offence punishable under Section 225 I.P.C. Section 225 I.P.C. refers to the rescue of another person. Accused Dhananjai Pandey who himself was rescued by the acccused party cannot be held guilty and convicted under Section 225 I.P.C. The correct provision in this regard is Section 224 I.P.C. which relates to escape from any custody in which he is lawfully detained for any offence. Accused Dhananjai Pandey was legally arrested in respect of the offence under Section 380 I.P.C. in Case Crime No. 42 of 1990 and he was in lawful detention of the police personnel at the relevant time when he was rescued by the accused party. Though Dhananjai Pandey made no resistence himself and he was rescued by the accused party but having taken advantage of his release he was guilty of escaping from lawful custody. Thus, though Dhananjai Pandey is not guilty for the offence under Section 225 I.P.C. but is guilty for the offence under Section 224 I.P.C.
46. Now I come to the offence under Section 342 I.P.C. It is not in dispute that Constable Sripat Ram (P.W. 2) and H. C. Raghunath Rai (P.W. 4) were made to sit near the Plani of accused Ramdeo Pandey where they were taken by the accused party from the place of occurrence. It is also proved by the prosecution evidence that the said two police personnel were taken from the place of occurrence where the police party was attacked and Dhananjai Pandey was rescued forcibly and were taken to the place near the Plani of accused Ramdeo Pandey and were confined there by the accused party. Regarding this part of the occurrence, Constable Sripat Ram (P.W. 2) and H. C. Raghunath Rai (P.W. 4) have made a general statement that the accused persons took them near the Plani of accused Ramdeo Pandey and were made to sit there and they were not allowed to go anywhere. These two police personnel were rescued by the S. O. Harish Chandra Misra (P.W. 7) and he had arrested 8 accused persons, namely accused Yadu Nath Pandey, Chandra Deep Pandey, Rajnath Pandey, Prithvi Nath Pandey, Ramanath Pandey, Ramdeo Pandey, Ramanand Pandey and Uma Shankar Misra from the place where the two police personnel were wrongfully confined. H. C. Raghunath Rai (P.W. 4) deposed that some of the accused persons ran away from that place and he has not specifically mentioned the names of those accused persons who are said to have escaped. Out of these 8 arrested accused persons, 7 accused persons except Ramnath Pandey are the persons who were injured. In order to prove the offence of wrongful confinement under Section 342 I.P.C. it has to be proved that such obstruction was voluntary; that the effect of such obstruction was to restrain that person from proceedings from a certain limit and that the restrain was wrongful.
47. It has been discussed above that all the accused persons excepting accused Prithvi Nath Pandey, Chandra Deep Pandey and Ram Nath had participated in attacking the police party and forcibly securing the release of Dhanajai Pandey from lawful custody. The presence of other persons -at that moment cannot be ruled out and it is admitted by Constable Sripat Ram (P.W. 2) that 5-7 onlookers were present besides the accused persons when Dhananjai Pandey was rescued after scuffle. He had even named accused Ram Nath Pandey, son of Chandrika, as one of them but could not tell the names of other persons. The definite case of the prosecution is that from that place the accused party had taken Constable Sripal Ram and H. C. Raghunath Rai after seizing them to the place near the Plani of accused Rameo Pandey where they wrongfully confined. It would thus appear that only those accused persons who had actually participated in attacking the police party and in rescuing Dhananjai Pandey had seized these two police personnel and had wrongfully confined them. The presence of other persons of the village near the Plani of Ramdeo Pandey cannot be ruled out as it is quite common in village people that they assemble as spectators particularly when two police personnel had been made to sit in the village at that place. Accused Prithvi Nath Pandey and Chandra Deep Pandey had been found to have no role in the occurrence in which accused Dhananjai Pandey was rescued. The prosecution has nowhere given evidence that from that place accused Prithvi Nath Pandey and Chandra Deep Pandey and also seized the said two police personnel and had brought them along with other accused who had attacked them to the place near the Plani of accused Ramdeo Pandey. No doubt, these two accused persons haye received injuries but that is not abnormal or unnatural as the police had arrested them from the spot and they might have used force to affect their arrest. H. C. Raghunath Rai in his cross-examination showed his ignorance about the injuries caused to accused persons at the time of their arrest. The presence of Prithvi Nath Pandey and Chandra Deep Pandey though at the time of arrest cannot be disputed at the place from where the said two police personnel were rescued but it does not necessarily indicate that they had also seized and confined the said police personnel. In my opinion, accused Prithvi Nath Pandey and Chandra Deep Pandey having not participated in the act of securing the release of accused Dhananjai Pandey after attacking the police party cannot be held guilty for the offence under Section 342, I.P.C. merely because they were present near the Plani of accused Ramdeo Pandey in the absence of any cogent and reliable evidence that they had seized and wrongfully confined the said two police personnel. They are thus not found guilty for the offence under Section 342, I.P.C.
48. It may also be mentioned here that accused Prithvi Nath Pandey is the person against whom prosecution has alleged the recovery of D.B.B.L. guns which has been found false by the trial court and also by this Court. It was thus quite natural for the police to have arrested accused Prithvi Nath Pandey even though he had no role in the act of wrongful confinement of the police personnel. Similarly accused Ram Nath Pandey, who is non agrarian, was also arrested but he had not received any injury on his person. He is father of accused Dhananjai Pandey. His presence at the place of occurrence is doubful for two reasons. Firstly, he is father of accused Dhananjai Pandey who was rescued and admittedly accused Dhananjai Pandey is not involved in the wrongful confinement of the two police personnel. Secondly, H.C. Raghunath Rai (P.W.4), who himself was wrongfully confined, has deposed in his cross-examination that he could not tell, whether, Dhananjai Pandey or his father Ramnath Pandey had gone to the place where the said two police personnel were wrongfully confined. Accused Ram Nath Pandey is non-agrarian and his participation in the alleged offence does not appear to be probable in the circumstances of the case and, therefore, accused. Ram Nath Pandey cannot be held guilty for the offence under Section 342, I.P.C. and he is entitled to the benefit of doubt.
49. The contention of the learned counsel for the appellants that accused Chandra Deep Pandney and Shiv Prasad Pandey were minors at the time of the occurrence is without substance in view of their statements recorded under Section 313, Cr.P.C.
50. In view of my foregoing discussion and on consideration of the entire facts and circumstacnes of the case, nine accused-appellants, namely Ramanand Pandey, Ramdeo Pandey, Rajnath Pandey, Yadunath Pandey, Shiv Prasad Pandey, Barmeshwar Pandey, Ram Adhar Pandey, Ishwar Dayal Pandey and Uma Shankar Misra, are found guilty for the offences committed under Sections 332 and 225, I.P.C. and, therefore, their conviction under these sections is upheld.
51. However, the finding of the trial court regarding Prithvi Nath Pandey, Chandra Deep Pandey and Ram Nath Pandey under Section 332 and 225, I.P.C. is set aside and they are acquitted of the offences under Sections 332 and 225, I.P.C.
52. Accused Ramanand Pandey, Ramdeo Pandey, Rajnath Pandey, Yadunath Pandey, Shiv Prasad Pandey, Barmeshwar Pandey, Ram Adhar Pandey, Ishwar Dayal Pandey and Uma Shankar Misra are also found guilty for the offence punishable under Section 342, I.P.C. and, therefore, their conviction by the trial court under Section 342, I.P.C. is accordingly upheld.
53. However, accused Prithvi Nath Pandey, Chandra Deep Pandey and Ram Nath Pandey are not found guilty for the offence under Section 342, I.P.C. and, therefore, the finding of the trial court in that regard is set aside and they are acquitted of {he offence under Section 342, I.P.C.
54. The finding of the trial court for convicting accused Dhananjai Pandey under Section 332, I.P.C. is set aside and he is acquitted of the offence under Section 332, I.P.C. The trial court has convicted him wrongfully under Section 225, I.P.C. instead of under section 224, I.P.C. as stated above. Consquently, while upholding the conviction of accused Dhananjai Pandey on that score, he is convicted under Section 224, I.P.C. in place of 225, I.P.C.
55. As regards the sentences awarded to the accused persons, the trial court has awarded three years' R.I. under Section 332, I.P.C, one year's R.I. under Section 225, I.P.C. and one year's R.I. under Section 342, I.P.C. and all the said sentences have been made to run concurrently. On the facts and circumstances of the case, the intention of the accused party was to rescue accused Dhananjai Pandey. 'Rescuing' implies intention and use of violence to affect the object desired. The act of rescuing is always accompanied by the use of certain amount of criminal force in freeing a person from custody against the will of those who have held him in custody. The police personnel h,ad received injuries in securing the release of Dhananjai Pandey and in that very process the accused Party caused hurt to them being public servants in the discharge of their duty as such public servants. There is overlapping of the facts and evidence" in the present case with regard to the offences which v/as described by the accused party. Hence in my opinion, ends of justice would be served by awarding one year's R.I. to the accused-appellants who have been found guilty under Section 332, I.P.C. instead of three years' R.I. each.
56. As regards the sentences under Sections 225, I.P.C. and 342, I.P.C. the sentence awarded by the trial court is upheld. Accused-appellant Dhananjai Pandey is, however, sentenced to one year's R.I. under Section 224, I.P.C.
57. In the result the appeal is partly allowed to the extent that the convictions and sentences awarded to appellants Prithvi Nath Pandey, Chandra Deep Pandey and Ram Nath Pandey under Sections 332, 225 and 342, I.P.C. are set aside and they are acquitted of all the said offences. They are on bail. They need not surrender. Their bail bonds are discharged.
58. The appeal of the rest of the accused-appellants, namely Ramanand Pandey, Ramdeo Pandey, Rajnath Pandey, Yadunath Pandey, Shiv Prasad Pandey, Barmeshwar Pandey, Ram Adhar Pandhey, Ishwar Dayal Pandey, Dhananjai Pandey and Uma Shankar Misra is hereby dismissed with the modification regarding their sentences as indicated above. These all the accused appellants are on bail. Their bail bonds are cancelled. They shall be taken into custody to serve out their sentences as indicated above, which shall run concurrently in accordance with law.