- (1.) The appellants are five in number who were prosecuted originally with 11 others under diverse S. of the Indian Penal code which included S. 147 and 148 of the Indian Penal Code and sections 333 and 353 read with Section 149 of the Indian Penal Code. Of the original 16 accused in the case, 11 were acquitted in the court of Session. The high Court, on appeal, confirmed their convictions with some modifications and reduced the sentences passed on them. As a result of the High court's judgment, one of the appellants Gopi stands convicted under Section 326 of the Indian Penal Code with a sentence of six months' rigorous imprisonment and under Section 148 of the Indian Penal Code with a like sentence, the two sentences of imprisonment to run concurrently. Others are convicted only under Section 147 of the Indian Penal Code and have been sentenced to imprisonment already undergone by them which we are told was in the neighbourhood of two weeks. They now appeal by special leave against their conviction and sentences.
(2.) The facts of the case are as follows : In November 1963 a she-buffalo belonging to one Rajbir of village Chhainsa, police station Chhainsa in the district of Gurgaon (then a part of Punjab and now a part of Haryana) was stolen. Rajbir's suspicion was that the appellants Gopi and Munshi had stolen the buffalo and that they were keeping it in village Gunpara, police station dankaur in Bulandshahr district in Uttar Pradesh. There are certain allegations that Gopi and Munshi demanded a sum of Rs. 200. 00 for the return of the buffalo, that the amount was paid but the buffalo was not returned. We are not concerned with the truth of this statement. A report of theft of buffalo was lodged at police station Chhainsa on 26/11/1963. The report was sent to Sub-Inspector Kesar Singh (P. W. 1) who was then at another village and he proceeded in the company of three constables and some other villagers to Gunpara. From the village he took with him two other persons Rajey and chander. The police party was armed with rifles, a revolver and Lathis. They reached the house of Gopi and Munshi at about 11-30 p. m. and found them sleeping in front of their house. Gopi and Munshi were woken up by the police and were informed that the police party had come to search for the buffalo. The prosecution case is that Gopi and Munshi thereupon raised a hue and cry that the police party bad arrived and on that the appellants and some other persons violently attacked the police party causing simple injuries to kesar Singh, Mohar Singh and Sri Ram of the police force and grievous injury to Jodhra Ram. The injury to Jodhra Ram was caused with a Farsa on the head and had fractured his skull. Later, the police party, when it was with drawing, was again waylaid and the allegation is that Kesar Singh was wrongfully confined at Naurangpur. He was then rescued by Mulaim Singh a constable of police station Dankaur and Kesar Singh then went to Gunpara wherehe made a report to the police station officer Dankaur who had by that time returned. It may be mentioned that on behalf of the appellants a report was also lodged at police station Dankaur at 4 a. m. on the night of the occurrence, complaining that a dacoity was attempted to be committed at the house of Gopi and Munshi by some persons who were dressed in police uniform. Investigation then followed and the appellants with 11 others who have since been acquitted were prosecuted.
(3.) The High court considered whether the action of Kesar Singh in conducting the search outside the limits of his police station house was bona fide or under colour of office. It gave a finding that it was not bona fide because kesar Singh could have easily asked the police station house officer of Dankaur to conduct the search under Section 166 (1) of the Code of Criminal Procedure. His explanation that the police at Dankaur were mixed up with the appellants' party was considered a lame excuse. However, the High court felt that the action of the appellants was criminal because they knew that it was a police party.;