Bishan Narain, J.
1. The three appellants before us were tried under Section 452, I. P. C., for having committed criminal trespass in the house of Kartar Singh (P. W. 14) on the night between the 12th and 13th of January 1954 with the intention of committing theft of his cattle after having made preparation for causing hurt to the inmates of the house, and under Section 302/34, I. P. C., for having murdered Waryam Singh and also under Section 323/34 and Section 324/34 I. P. C., for having caused hurt to Jogindar Singh and Sundar Singh.
The Additional Sessions Judge, Amritsar, convicted all the accused persons under Section 452, I. P. C., and sentenced them to two years' rigorous imprisonment each. He also convicted them under Section 323/34, I. P. C., awarding a sentence of four months' rigorous imprisonment each, but the sentences under both the counts were ordered to run concurrently. He, however, acquitted them of all the other charges framed against them,
The appellants have appealed to this Court against their convictions and sentences while the State has appealed against the order of acquittal of the accused persons under Sections 302/34 and 324/34, I. P. C. It will be convenient to decide both the appeals (Criminal Appeals Nos. 622 of 1954 and 81 of 1955) by this judgment.
2. The prosecution case is that Kartar Singh P. W. 14 is the owner of a 'haveli'. On the night between the 12th and 13th of January 1954 he was sleeping in a room with his two sons and other members of the family while his son Anokh Singh was sleeping in the verandah keeping guard on the cattle tethered in the courtyard. At about 11 p.m. he woke up on hearing the barking of a dog and found the appellants along with Darshan Singh standing near the cattle in the courtyard. He raised an alarm and all the family members came out Darshan Singh fired from his pistol.
Jogindar Singh, one of the appellants before us, gave a 'dang' blow on the head of Jogindar Singh (P. W. 16) son of Kartar Singh. The culprits then ran away. The family members excepting the injured person and other persons living in the locality, all numbering about 60 or 70, pursued the intruders. Waryam Singh and his son Piara Singh were among them. They overtook the culprits about 200 karams from Kartar Singh's house. I may state here that it was a moonlit night. Darshan Singh and Jogindar Singh were armed with a pistol and a 'dang' respectively while the other two accused were armed with a spear each.
The pursuit party was armed with 'dangs', spears 'kirpans' and 'kulharis'. Darshan Singh fired without hitting anybody. Waryam Singh was armed with a 'kulhari' and was ahead of the pursuit party. When he got near the culprits Kartar Singh appellant gave a spear blow in the abdomen of Waryam Singh who fell down on receiving this injury. In the meanwhile the other two appellants gave blows with their weapons to Sundar Singh another member of the pursuit party.
The villagers then fell upon Darshan and killed him on the spot. Kartar Singh appellant was captured but the other two escaped. After investigation the three appellants were tried and convicted as stated above.
3. The appellants pleaded not guilty and alleged that they had bean falsely implicated on account of enmity. They, however, produced no evidence 'in defence.
4. Taking the appeal of the convicts, the prosecution case is supported by the evidence of Kartar Singh and his sons particularly Anokh Singh P. W. 15 who was sleeping in the verandah and woke up on the barking of a dog. Jogindar Singh P. W. who was hit on the head with a 'dang' has also supported the prosecution case. The night being moonlit it is only natural that the inmates should have seen the appellants.
There is no reason for these persons to implicate the appellants falsely. The fact that the appellants were armed and entered the 'haveli' about 11 p.m. and were found standing near the cattle shows and proves that they had entered the 'haveli' with a view to commit theft of cattle.
5. It was argued on behalf of the appellants that they had entered only a courtyard and therefore they cannot be said to have entered a building and therefore they were not guilty under Section 452, I. P. C. There is, however, no doubt that the building in the present case was used as a human dwelling. Kartar Singh (P. W. 14) the complainant has described his 'haveli' in the following words--
'My residential house is situated in the out skirts of village Thathian. I also tether my cattle in that house and reside there with family. Its enclosure wall is 'about three feet high I, Tarlok Singh, Jogindar Singh and Anokh Singh P. Ws. who are my sons and other members of my family reside in that house.'
This description is supported by the plan produced in the case. Kartar Singh (P. W. 14) was not cross-examined regarding this matter. I therefore hold that the courtyard which the appellants entered was in the circumstances a building and therefore they were rightly convicted under Section 452, I. P. C. The sentence of two years' rigorous imprisonment cannot be considered to be excessive when one remembers that one of the offenders was armed with a pistol and two of them were armed with spears.
6. As regards the conviction of the appellants under Section 323/34, I. P. C., for causing hurt to Jogindar Singh (P. W. 16) in the courtyard, the case is proved beyond reasonable doubt against the appellants by the evidence on the record including the statement of Jogindar Singh himself. In fact no argument was advanced before us attacking their conviction under Section 323/34, I. P. C. I therefore maintain the conviction and the sentence under this Charge. The result is that Cri. App. No. 622 of 1954 fails and 1 would dismiss it.
7. Now, I shall deal with the appeal (Cri. App. No. 81 of 1955) filed by the State. The learned Additional Sessions Judge found that under Section 59 (1), Criminal P. C., Waryam Singh deceased and Sundar Singh were not authorised to arrest the culprits as the offence under Section 452, I. P. C. had not been committed in their presence or within their sight and therefore the appellants had a right of private defence of their bodies and as the victims, Waryam Singh and Sundar Singh, were armed with kulhari and stick respectively, the appellants cannot be said to have exceeded their right of private defence.
It is on these findings that the appellants were acquitted under Section 302/34 and Section 324/34, I. P. C. The learned counsel for the State has questioned the correctness of this position and according to him Waryam Singh and Sundar Singh had a right to arrest the accused in the circumstances of the case and for this purpose be has relied on -- 'Sheo Balak v. Emperor', AIR 1948 All 103 (A).
It is clear from the evidence in the present case that the villagers on hearing the alarm of their neighbour Kartar Singh and his family members came out and saw the culprits running away after they had left the 'haveli' of Kartar Singh. It is common ground that the appellants had not in fact committed any theft and were not carrying any stolen cattle or other goods with them. It follows that the offence under Section 452, I. P. C. was not committed in their presence or within their sight.
They pursued the culprits as their neighbour Kartar Singh and his sons etc. had stated |hat the accused had committed the offence and were themselves pursuing the culprits. The question arises whether Section 59 (1), Criminal P. C., authorises a private person to arrest the alleged accused persons. Section 59 (1) reads:--
'Any private person may arrest any person who in his view commits a non-bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any person so arrested to a police-officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.'
The question arises whether the phrase 'in his view' should be construed as 'in his presence or sight' or as 'in his opinion'. A person may be certain in his mind that the accused who is running away had committed a non-bailable and cognizable offence because of the statement of his neighbour which he believes and because of what he himself sees immediately after the commission of the offence, and yet, as far as I can see, he has no right to arrest the alleged culprits.
It was held in -- 'Kalai v. Kalu Chowkidar', 27 Cal 366 (B), by a Division Bench of that Court that a private person under Section 59(1), Criminal P. C., has no right to effect arrest unless the offence was committed in the view of such a person, and this decision has been followed since then by the High Courts in India whenever this question has arisen.
With due respect I agree with these decisions as it appears to me that it would be extremely dangerous to allow a private person to arrest another person under Section 59 (1), Criminal P. C. on the basis of his mere opinion, however definite it may be, that the offender had committed a non-bailable and cognizable offence. It would be dangerous to allow a private person to arrest an alleged offender on the basis of his opinion even if it is based on unimpeachable evidence as it would be open to serious misuse.
All the decisions are to the effect that the legislature did not intend to allow a private person to arrest another person on the basis of his opinion only. There is, however, another aspect of the matter. When the commission of a particular offence is completed, does the offender continue in the commission of his offence when he is running away? It was held in AIR 1948 All 103 (A), by a Division Bench of that Court that
'When a man is found committing a non-bailable and cognizable offence and then tries to escape, the whole is to be treated as one single transaction and any person who either sees him committing the offence or finds him running away immediately after the commission of the offence would be entitled to arrest him under Section 59, Criminal P. C.'
There is much to commend for this view as otherwise a private person would hardly ever be in a position to render assistance to a victim of an offence by arresting the offender and this state of law obviously makes the escape of the offender easy. Now, the decision of the Allahabad High Court is based on English law where under common law it was held in -- 'Rex v. George Howarth', (1824-37) 1 Moody's Crown Cases 207 (C),
'The conviction was lawful, for as he was seen in the out-house, and was taken on fresh pursuit before he had left the neighbourhood, it was the same as if he had been taken in the out-house, or in running away from it, that it was all one transaction.'
On the basis of a statute it was observed in --'Downing v. Capel', (1867) 2 CP 461 (D), by Keating, J.,--
'The intention of the statute evidently is, that the criminal should be apprehended immediately on the commission of the offence. It is sufficient, if the person apprehended has been seen in a position which justified the belief that he had committed the offence; ..................'
In the English statute it was provided that 'any person found committing an offence ..........
may be immediately apprehended without a warrant by any person'. It appears to me therefore that the view taken in the Allahabad case does not run counter to Section 59 (1), Criminal P. C. It is, however, not necessary to decide this point in the present case as to whether Waryam Singh and Sundar Singh had a right to arrest the appellants or not. It is clear that the pursuing party consisting of 60 to 70 persons were fully armed with 'kulharis' and 'kirpans' etc. They were all brandishing their weapons.
Waryam Singh was ahead of the party and was armed With a 'kulhari'. On reaching the appellants the pursuit party surrounded them. Darshan Singh was attacked and was injured with sharp-edged weapons and was killed on the spot. Kartar Singh was found to have received eight injuries when he was arrested. In the circumstances it cannot be said that the appellant Kartar Singh did not have reasonable apprehension that he was likely to be killed by the members of the pursuit party. He was therefore justified in defending himself. He gave only one blow with his spear which unfortunately proved fatal.
In the circumstances it cannot be said that the appellants exceeded their right of private defence. The same remarks apply to those appellants who injured Sundar Singh. I am therefore of the opinion in agreement with the finding of the trial Court that the appellants were entitled to acquittal under the charges framed against them under Sections 302/34 and 324/34, I. P. C. I would therefore dismiss this appeal also.
8. The result is that I would dismiss both Crl. Apps. Nos. 622 of 1954 and 81 of 1955.
9. I agree.