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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.

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.