JAS RAJ CHOPRA, J. - (1.) THIS is an appeal directed against the judgment of the learned Sessions Judge, Bhilwara, dated 27. 1. 78, whereby the learned lower court has convicted and sentenced the accused-appellants as under : - 1. Kundan (1) for offence u/s 147 and 353-6 months R. I. each. (2) for offence u/s 333 I. P. C. 3 years R. I. and a fine of Rs. 200/- and in default of payment of fine to further undergo 2 months R. I. 2. Dhanna, Ramgopal, Rameshwar, Mishri (1) for offence u/s 147 & 352 I. P. C. Each of them for 6 Nanda, months R. I. for each offence. (2) for offence u/s 333/149 I. P. C. 2 years R. I. & a fine of Rs. 100/- each and in default of payment of fine to further undergo one month R. I.
(2.) THE facts giving rise to this appeal briefly stated are that on 17. 4. 74, the wine contractor of Shahpura i. e. Shri Lal Chand submitted a report marked Ex. P. 2 to the Excise Inspector of Shahpura alleging therein that in village Rajyas certain Bavries, specially Kundan and Nanda were indulging in manufacture and sale of illicit liquor and if a search is made immediately incriminating liquor will be recovered and the accused persons responsible for it can be arrested. It is alleged that Ratan Singh, Excise Inspector immediately prepared a memo Ex. P. 13 (a) under section 47 of the Excise Act and proceeded to village Rajyas along with his two guards i. e. Mohan Lal and Dev Bux. Mahaveer s/o Choga, who is the servant of the wine contractor and Tehal Ram who is son of wine contractor Lal Chand accompanied them from Shahpura. THEy reached village Rajyas by bus on 17. 4. 74 at about 4. 30 p. m. THEy went to the house of Kundan and Nanda. Both of them were found present at their own residence. THEy then entered the guvadi of the house of Kundan and Nanda and found evidence of the existence of a wine-bhatti and some empty earthen pots which were alleged to have contained wash, were lying there. When they started enquiring from these two accused-persons about the illicit trade in country made wine it is alleged that Mishri, Rameshwar, Dhanna, Ram Gopal and some other Bavries came armed with lathies on hearing the noise of Kundan and Nanda. When these persons arrived there Kundan and Nanda also joined them and attacked the Excise Party. Looking to their aggressive intent, Excise Inspector Ratan Singh and Mohanlal guard immediately ran away from the guvadi and came out in the open. Tehal Ram and Dev Bux tried to escape from the other side but it is alleged that Nanda and his companions availed Shri Dev Bux and inflicted injuries to him with lathies and an arm of a cot. Kundan was armed with an arm of a cot and he inflicted a blow to Dev Bux which has resulted in a fracture. After that he fell down and later all the accused persons inflicted injuries to him. He became unconscious. After half an hour he regained consciousness and then he went to the hotel of Sohan Mah-raj situated on the bus stand. When Ratan Singh and others were informed that Dev Bux has been injured and he has gone to the bus stand they went in search of him. When they were going towards the bus stand all these six accused-appellants came in their way and even then they tried to attack the Excise Officials and their companions. However, one Sobhag Singh Rajpoot of that village interfered and saved the Excise Party from the impending attack. Ratan Singh and his companions then went to the bus stand. THEy found Dev Bux sitting in the shop of Sohan Maharaj THEy found him seriously injured. He was bleeding from the wounds. His clothes were soaked with blood. He was then carried on a by-cycle to Kanechan police chowki and from there he was taken to phulia village. THEre, no medical aid was available and therefore, the injured was shifted to Shahpura, where he was admitted in the hospital and medical examination of his injuries was conducted P. W. 5 Dr. C L. Dadich has found five injuries on his person. His injury report has been marked Ex. P. 4. His X-rays film has been marked Ex. P. 3 and the X-ray reading report has been marked Ex. P. 5. It is alleged that on 1 8. 4. 74 Excise Inspector Ratansingh went and lodged a written report Ex P. 4 at police station Phulia on the basis of which a rapat no. 11 was recorded in the Rojnamcha at police station Phulia at about 2. 30 p. m. which has been marked Ex P. 12. THE police literate constable was not competent to record the first information report and, therefore, he recorded a note on a sheet of paper and later when the head constable arrived at the police station, on the same day he registered a case under sections 353, 332, 324, 326 and 147 I. P. C. This note is part of Ex- P. 12. It is alleged that the Excise Inspector submitted with this report, the injury memo of injured Dev Bux marked Ex. P. 4, the complaint Ex. P. 2 made by Lal Chand and a copy of the original memo prepared by him under section 47 of the Excise Act, which has been marked Ex. P. 13. After the usual investigation, the case of the accused persons was challaned in the court of learned Munsif & Judicial Magistrate, Shahpura (Bhilwara) from where it was committed for trial to the learned Sessions Judge, Bhilwara. THE learned Sessions Judge charged the accused Kundan for the offences under sections 147, 333 and 353 I. P. C. whereas, the remaining accused persons were charged with the offences under sections 147, 333/149 and 353 I. P. C. THE accused persons did not plead guilty to the charges and claimed trial. Whereupon, the prosecution examined as many as eight witnesses in the case. THE statement of the accused persons were recorded under section 313. THEy examined D. W. 1 Mithu and D. W. 2 Harnath in their defence. After hearing the parties, the learned trial court decided the case as stated by me above. Aggrieved against this judgment all the six convicted accused persons have preferred this appeal. I heard Shri J. R. Choudhary, learned Amicus Curiae for the accused-appellants and Mr. Basti Chand Bhansali, learned public prosecutor for the State. I have also gone through the record of the case. The learned lower court has held that the Excise Inspector Ratan Singh and the two excise guards who went to village Phulia were on public duty. They went there to search the house of Kundan and others who were indulging in the manufacture and sale of illicit liquor. The Excise Inspector i. e. Ratan Singh has prepared a memo Ex. P. 13 (a) before the search was taken and he has submitted a copy of this memo to the police along with the first information report. The delay in lodging the first information report was held as properly explained because of the anxiety of the Excise Inspector to provide medical aid to Dev Bux so that his acute agony and suffering may be reduced. It was held that all these accused persons formed an unlawful assembly with the common object to obstruct the search of the house of Nanda and Kundan and in pursuance of that common object Kundan inflicted grievous injuries to Dev Bux and, therefore, it held the accused persons guilty of the aforesaid charges and sentenced them accordingly. Now I have to see how far these findings of the learned lower court can be sustained on the basis of the record. Mr. J. R. Choudhary appearing for the accused appellants has argued that the entire evidence of the prosecution, from the time they left Shahpura for village Rajyas, is highly contradictory. Ex. P. 13 (a) is an ex post facto document. The evidence regarding the actual happening of the incident is so doubtful that no conviction can be based on the strength of such an unreliable and mutually contradictory evidence. He did not challenge the conclusion of the learned lower court that Ratan Singh, Dev Bux and Mohanlal are public servants. He also did not challenge the fact that they went to village Rajyas on duty and tried to search the house of Kundan and Nanda The main thrust of his argument has been that these persons had no authority to search the house of Kundan and Nanda and so Kundan and his companions had every right to resist the search and to cause them grievous hurts in the exercise of their right of private defence of the property. He further submitted that from the evidence on record, it has not been proved that any body else then Kundan inflicted any injury and thus according to him this evidence has not been properly scrutinized and appreciated by the learned lower court and it has wrongly recorded the conviction against the accused persons for the offences with which they were charged. The learned public prosecutor appearing for the State vehemently submitted that Ratan Singh and the Investigating Officer have categorically proved that Ex. P. 13 (a) is a genuine document which was prepared before the search of the house of Kundan and Nanda was actually under taken. As these persons were public servants and they were acting under the colour of official duty, no right of private defence was available to the accused persons and lastly, he submitted that the evidence is worth reliance. It cannot be disputed that Dev Bux guard was seriously injured when he was discharging his official duty and, therefore, the conclusion recorded by the learned lower court is perfectly justified on the basis of the evidence recorded in the case.
(3.) I have given my most earnest consideration to the rival submissions made at the bar by both the sides. Initially it was the complaint Ex. P. 2 filed by Lal Chand, wine contractor which set the excise machinery into motion. P. W. 4 Tehal Ram, who is son of Lal Chand, has proved that it bears the signatures of his father Lal Chand at place A to B. Lal Chand himself has not been produced. P. W. 8 Ratan Singh has stated that it was Lal Chand who submitted the report Ex. P. 2. After going through the report, he came to the conclusion that the matter is urgent and, therefore, he preparred a memo under sec. 47 of the Excise Act and then he started for Rajyas accompanied not only by Ram Lal and Dev Bux excise guards but also by motbirs Tehal Ram and Mahaveer. Now the correctness of this statement of the testimony of Shri Ratan Singh has been seriously challenged by the learned counsel for the accused persons. The learned public prosecutor has however, vehemently supported it and submitted that it is a very reliable piece of evidence. I have now to decide how for this part of the testimony of P. W. 8 Ratan Singh can be relied and acted upon. P. W. 8 Ratan Singh has stated that when he submitted Ex. D. 4 written report at police station Phulia, he submitted with it Ex P. 2 report of Lal Chand, Ex P. 4 injury report of Dev Bux and a copy of Ex. P. 13 (a) which he prepared at phulia. He does not remember whether he submitted the original report to the police at that time. When this witness was cross-examined by the counsel for the defence, he admitted in his cross-examination that the memo under section 47 of the Excise Act was prepared by him in the bus when the bus was going from Shahpura to Araniya. The village Araniya is situated at a distance of four miles from Shahpura. Thus he has contradicted him self with his earlier statement made in the examination-in-chief, wherin he has stated that first he prepared the memo and then he started for Rajyas. Now it has to be seen whether this improved version stated by Ratan Singh can also be relied and acted upon. P. W. 2, Mohan Lal guard of the Excise Party has stated that he along with Dev Bux guard travelled with Ratan Singh in the bus from Shahpura to Rajyas. He has admitted in cross-examination that in his presence the Excise Inspector prepared no memo before he took the search. PW. 4 Tehal Ram has stated that he was travelling with the Excise Inspector from Shahpura. In his cross-examination he has stated that the Excise Inspector did not prepare any memo between Shahpura to Rajyas till they reached the house of Kundan. These two persons have travelled with Ratan Singh and they have categorically denied that Ratan Singh prepared any memo in the bus. Ratan Singh him self has given a go by to his earlier statement made in examination-in-chief that he prepared the Parcha under section 47 of the Excise Act before he boarded the bus from Shahpura for Rajyas. The case set up by him in cross-examination is that the Parcha was prepared between Shahpura and Rajyas in the bus. which fact has not been supported either by Dev Bux or by Mohan Lal or by Tehal Ram. He has stated that a copy of this Parcha was submitted at the police station Phulia along with Ex. D. 4. P. W. 7 Gopal Singh Head constable, who is the Investigating Officer in this case was re-called and re-examined about Ex. P. 13 and Ex. P. 13 (a), after the statement of Ratan Singh was recorded. He has admitted in his cross-examination that in his police diary he has recorded a note that the complainant Ratan Singh has submitted along with Ex. D. 4, the original report of Lal Chand Ex. P. 2 and the injury report of Dev Bux marked Ex. P. 4. He has not mentioned that Ex. P. 13 was submitted with Ex. D. 4 in his police diary. He has further admitted that Ex. P. 13 does not bear his signatures or any note of presentation. He has gone on record to say that usually when any document is produced at the police station, a mention of it is made either in the first information report, if it is submitted with the first information report or in the police diary but such a mention about Ex. P. 13 does not find place either in the first information report or in the police diary. This clearly goes to show that this is an ex post facto document prepared by Ratan Singh to cover up the lacuna left by him, otherwise there is no reason why such an important document which formed the very basis of the right to search somebody's house and which affected the liberty of a citizen should have escaped mention by the police officer in his police diary. It is not a case where all other documents were not mentioned but unfortunately, the other two documents which were produced with Ex. D. 4 do find mention in the police diary but this particular document does not. This non-mention abundantly makes it clear that this document was not produced at the time when Ex D. 4 was submitted at police station Phulia. ;