S.S. Byas, J.
1. On 29-1-1988, the judgment was pronounced. The appeal was allowed, the judgment of the trial court was set aside and the appellants were acquitted. Reasons were to be stated later on and they are now articulated.
2. By the impugned judgment of the learned Addl. Sessions Judge No. 1, Alwar dated February 8, 1979 out of the nineteen appellants, Moola was convicted under Sections 325, 323/149 and 147, Harkishan was convicted under Sections 323, 325/149 and 147 and the remaining seventeen appellants (12 males and 5 females) were convicted under Sections 325/149, 323/149 and 147 of the Penal Code and each was (except five female accused) sentenced to various terms of imprisonment with fine. The five female accused were released on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958.
3. Narrated in a nutshell, the prosecution case is that DW 1 Jai Lal Meena of village Ronejathan (District Alwar) was wanted as an accused in police case No. 45/1975 pending investigation for an offence under Section 394, IPC at police station Kherliganj (District Alwar). At about 11.00 p.m. on 14-11-1975 - the then Staiion House Officer Surat Singh (PW 23) got a tip from his secret agent that Jailal Meena was staying in the house of appellant Moola in village Samochi situate nearly four miles away from the police station. He collected police force available at the police station and two or three citizens, hired a jeep and went to village Samochi in order to arrest Jailal. The police party reached there in the village Samochi in the mid-night. The police party found Jailal sleeping on a cot in the enclosure of the appellant Moola. PW 23 caught hold of Jailal with the help of the police constables and brought him on the public way where the arrest memo was to be prepared. At that very time, the appellants along with some other persons collected there with lathies and stones in their hands to rescue Jailal. Accused Moola struck a blow with his lathi on the head of Surat Singh. Surat Singh fell down and became unconscious on the spot. Accused Harkishan struck a blow with his lathi to police constable Mahesh Chand (PW 16). Surat Singh was wearing gold chain, gold ring and had a woollen shawl. He was ripped of these articles. The police party put the unconscious Surat Singh (PW 23) in the jeep and returned to police station Kherliganj at about 1.30 a.m. (on 15-11-1975) where the police constable Kamlesh Kumar (PW 12) verbally lodged report Ext. P-17 of the incident. The police registered a case under Sections 307, 336, 332 etc. of the Penal Code. The investigation ensued. The medical examination of PW 23 Surat Singh revealed that he had received grievous injuries on his head. The medical examination of Mahesh Chand (PW 16) was also conducted and simple injuries were found on his person. The appellants were arrested and in consequence of the informations furnished by accused Moola, Ardisal and Ram Singh whilst under police custody, the looted articles chain, ring and shawl were recovered. After when the investigation was over, the police submitted a crime report against the appellants and one Mst. Prem (wife of accused Harkishan) in the court of Munsif and Judicial Magistrate, Laxmangarh, who in his turn committed the case for trial to the Court of Session. The accused Mst. Prem passed away. The case came for trial before the learned Addl. Sessions Judge No. 1, Alwar who framed charges under Sections 147, 307 or 307/149, 225, 332/149, 333/149 and 395, IPC against all of them to which they pleaded not guilty and claimed to be tried. The defence taken by the appellants was that Mst. Prem wife of accused Harkishan who passed away during trial was the daughter of PW 9 Lakhu Ram Meena of Akhegar. Lakhu Ram lodged a report against accused Moola, Harkishan, Mst. Prem a and others at police station Kherliganj in respect of the offences of abduction, theft etc. PW 8 Lakhu Ram wanted to get Mst. Prem recovered by hook and crook. He, therefore, illegally brought the police party to village Samochin in order to get Mst. Prem recovered. Mst. Prem was the wife of accused Harkishan and daughter-in-law of accused Moola. When the police party tried to forcibly take Mst. Prem the villagers collected and resisted the police action. It was during that commotion that the Station House Officer Surat Singh (PW 23) and police constable Mahesh Chand (PW 16) sustained injuries. The appellants had every right to resist the illegal action of the police in recovering and taking Mst. Prem. As such they committed no offence in using the violence or force against the police party who was bent upon committing the unlawful acts. In support of its case, the prosecution examined 30 witnesses and filed as many as 85 documents. In defence, the accused examined Jailal (DW 1). On the conclusion of trial, the learned Addl. Sessions Judge found no case of dacoity and unlawful resistance against the appellants. He, however, held that the appellants had formed an unlawful assembly and in the prosecution of the common object of that assembly, force and violence was used by its members. He further held that accused Moola struck a blow of lathi on the head of PW 23 Surat Singh and accused Harkishan caused simple injuries to PW 16 Mahesh Chand. He, therefore, convicted and sentenced the appellants as mentioned at the very outset. Aggrieved against their conviction, the appellants approached this court in appeal.
4. I had heard Mr. S.K. Jain and N.K. Maloo learned counsel for the appellants and the learned Public Prosecutor Mr. Rizwan All at length. I have also gone through the case file carefully.
5. Before dealing with the contentions addressed by the learned counsel for the appellants, it would be useful to briefly notice the findings of the trial court. They are : --
(1) The prosecution story that the police party went in search of Jailal (DW 1) who was wanted in some criminal case as an accused is totally false and unfounded.
(2) The prosecution story that the dacoity was committed and PW 23 Surat Singh was relieved of his gold ring, chain and woollen shawl, was also equally false and baseless. No dacoity had taken place.
(3) The defence version that the police party had come in search of Smt. Prem (deceased accused who was wife of appellant Harkishan and daughter of appellant Moola) in order to recover her was untrue.
(4) The accused had formed unlawful assembly with the common object of causing injuries -- grievous and simple to the members of the police party. As such they were guilty of the offences under Sections 147, 323/149 and 325/149, IPC.
6. In view of findings Nos. 1 and 2, learned counsel for the appellants had a cake walk in impeaching their conviction. It was argued that when the very cause of the police party in coming to village Samochi as alleged by the prosecution is false and unfounded, the defence version that the police party had arrived to search, recover and take Mst. Prem should be taken to be true. It was argued that the accused are not required to prove their defence to the hilt. A mere preponderance of the probabilities in their favour is sufficient to discharge their burden. It was further argued that the prosecution was guilty of fabricating false facts and evidence. No dacoity was committed. The recovery of the gold ring, chain and shawl was found faked and fictitious. It was argued that the false introduction of the dacoity etc. was in itself sufficient to crumble down the entire prosecution case.
7. In reply, the learned Public Prosecutor strived his best to sustain the judgment and submitted that the appellants were rightly convicted. The learned Public Prosecutor however could not venture to challenge the first two findings of the trial court relating to dacoity and the cause of the police party going to village Samochi. In fact he was not in a position to do so in view of the innumerable holes in the prosecution case.
8. In view of the first two findings of the trial court, the clinching issue arising for decision is as to whether the court below was justified in rejecting the defence taken by the accused that the police party had come in order to recover Smt. Prem without any authority and that this act of the police party was illegal. It is true that the burden to prove the defence in order to bring the case within the exceptions lies on the accused. The standard of proof required to prove the defence is not that much heavy and cannot be equated with the burden of proof lying on the prosecution to prove its case. The accused is not required to prove his defence beyond a reasonable doubt. All that the accused should show is that the defence taken by him is probable. In other words, the accused is not required to prove the defence to the hilt and mere preponderance of probabilities in his favour is sufficient. The defence version should not be measured with the yardstick by which the prosecution evidence is measured. The prosecution case in order to convict the accused 'must' be proved whereas it is sufficient for the accused that the defence taken by him may be true. In order to make out the defence, the accused can rely upon the circumstances borne out from the prosecution evidence.
9. Here in the instant case, there was overwhelming circumstances appearing in the prosecution evidence itself which indicate that the defence taken by the accused is not untrue and unfounded. The trial court has recorded the findings that the police party had not gone to village .Samochi in order to arrest DW 1 Jailal. The trial court also recorded finding that no dacoity as alleged by the prosecution had taken place and PW 23 Surat Singh was not ripped of his ornaments and woollen shawl. The prosecution is thus guilty of fabricating a false case and invent an incident. The cause of the police party for going to village S amochi and the commission of the dacoity there constituted the main substratum of the prosecution case. If this main substratum crumbles down, the entire prosecution case becomes highly suspicious.
10. PW 9 Lakhu Ram is the father of the deceased accused Mst. Prem. Mst. Prem was the wife of accused Harkishan. Accused Harkishan is the son of accused Moola. PW 9 Lakhu Ram deposed that in the night of the incident he was in village Samochi where he had gone to see his daughter Smt. Prem. He further stated that he was sleeping in the house of accused Moola in that night. In cross-examination he admitted that he had lodged a report to police nearly 4 or 5 months before this incident in which he stated that accused Moola, Harkishan and the other accused persons had abducted Mst. Prem from his house and also took away valuable ornaments. The case was registered at police station, Kherliganj. In view of this admission, the relations between PW 9 Lakhu Ram and the accused persons must have become bitter and inimical. Therefore, there was no reason for PW 9 Lakhu Ram to go to village Samochi and stay with the accused persons. It is interesting to notice here that in the FIR Ex. P-17, his name has not been mentioned. PW 23 Surat Singh also admitted in his cross-examination that on the report of PW 9 Lakhu Ram, a case was registered before this incident against the accused persons in respect of the abduction of Smt. Prem.
11. Keeping these circumstances and the first two findings of the court below in view, can it not be said that PW 9 Lakhu Ram had taken the police party to get Mst. Prem recovered? The police party had certainly not gone in search of and to arrest DW 1 Jailal Meena. Therefore, there can be no other reason for the police party to go to village Samochi in the midnight except that of the recovery of Smt. Prem.
12. Smt. Prem was living with her husband Harikishan. The negative final report was given by police in the case registered on the report of PW 9 Lakhu Ram as has been admitted by PW 23 Surat Singh in his cross-examination because no offence of abduction was made out against the husband and his father Moola and their relatives. This negative final report was filed by police before this incident. When PW 9 Lakhu Ram could not succeed in getting his daughter Smt. Prem recovered in the case registered on his report, he sought the police help by other means to get her recovered. The facts of the police party going to Samochi in order to arrest DW 1 Jailal were invented as a ploy to get Smt. Prem recovered. These are the circumstances floating on the surface and speaking loudly against the prosecution. The, defence taken by the appellants, therefore, cannot be taken to be unfounded or untrue, They have satisfactorily discharged the burden of proving their defence.
13. The next pertinent question which arises for consideration is as to whether the appellants were justified in using violence or force against the police party. It was contended by the learned Public Prosecutor that the police employees were public servants and they have been acting in good faith under colour of their office. This act of theirs may not be strictly justifiable by law. Yet because they acted in good faith under colour of their office, the accused had no right to private defence against them. Reliance was placed on the first para of Section 99 of the Penal Code which runs as under : --
'99. Acts against which there is no right of private defence.
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....'
14. It was on the other hand contended by the learned counsel for the appellants that the police party had no right to go in the midnight and to recover Smt. Prem who was not involved in any case nor was required to be recovered for any purpose. The police party wanted to recover her in order to restore her to her father Lakhu Ram (PW 9). These acts of the police persons cannot be said to have been discharged in good faith. The acts were wholly illegal, unjustified and without jurisdiction. The right of private defence was, therefore, available to the appellants. The contention raised by the learned counsel has much substance.
15. Section 99 protects the public servant who acts in good faith under colour of his office though his act may not be strictly justifiable by law. However, there is a marked difference between the acts which are wholly illegal on one hand and the acts which may not be strictly justifiable by law. If the public servant acts without jurisdiction, it cannot be said that he acted in good faith and that this act should be protected even if it is not strictly justifiable by law. The law does not protect the illegal acts and the acts committed by a public servant without jurisdiction. 'Act not strictly justifiable by law' does not cover an act which is wholly illegal and totally without jurisdiction. Section 99 applies to acts where jurisdiction is wrongly exercised but not where there is complete absence of jurisdiction.
16. In the instant case, the police party had no jurisdiction to go to village Samochi to recover Smt. Prem in order to restore her to her father Lakhu Ram (PW 9). These acts of the police party were wholly illegal and totally without jurisdiction. Here is a case where there was complete absence of jurisdiction. PW 23 Surat Singh the Station House Officer acted completely without jurisdiction. His act cannot be said to have been done in good faith. The appellants, therefore, had a right to use violence or force to prevent the police party from recovering and taking Smt. Prem or to restore her to her father Lakhu Ram (PW 9).
17. It cannot be said that the force or violence was used excessively or that more harm was caused than necessary for the purpose of defence. No unlawful assembly can be said to have been formed by the members if they acted in right of private defence.
18. For the reasons aforesaid, the conviction of the appellants is wholly bad and unjustified. They are entitled to acquittal.