R.R. Prasad, J.@mdashThis revision application filed u/s 397/401 of the Code of Criminal Procedure is directed against the judgment dated
16.8.2001 passed by Additional Sessions Judge, Pakur in Cr. App. No. 13/16 of 1994 whereby learned Additional Judge affirmed the judgment
passed by Sub-divisional Judicial Magistrate, Pakur in G.R. Case No. 557 of 1990/T.R. No. 704 of 1994 whereby he convicted the petitioner
No. 1 Radha Sah @ Radha Saha under Sections 354 and 379 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for
six months u/s 354 of the Indian Penal Code and further to undergo rigorous imprisonment for one year u/s 379 of the Indian Penal Code whereas
petitioner Nos. 2 to 4 were convicted u/s 225 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for six
months.
2. The case of the prosecution is that on 23.10.1990 at about 11 A.M. Sabita Devi, the informant (P.W.6) had gone to a well with her maternal
aunt Champa Devi and then Sabita Devi alone went for easing herself and while she was returning, petitioner No. 1 Radha Sao @ Radha Saha in
order to outrage her modesty caught hold of her and when she raised alarm, some persons rushed to that place but in the meantime, the said
Radha Sao fled away by snatching golden chain from her. Subsequently, she as well as villagers caught hold of Radha Sao and handed over him to
the custody of Chaukidar Barka Tudu (P.W.5) and while the Chaukidar as well as the witnesses were taking Radha Sao to the police station, the
other petitioners, namely, Chhabi Lal Saha, Nagendra Saha and Janardan Sah @ Janardan Saha got Radha Sao rescued from the custody of the
Chaukidar.
3. Thereafter the informant Sabita Devi submitted written report to the Officer-in-Charge, Maheshpur Police Station, upon which a case was
registered and the matter was taken up for investigation. After completion of investigation, charge sheet was submitted and cognizance of the
offence was taken and the accused persons were put on trial. The learned Sub-divisional Judicial Magistrate having found the petitioner No. 1
Radha Sao guilty for the offences under Sections 354 and 379 of the Indian Penal Code sentenced him as aforesaid and other petitioners were
found to be guilty for an offence u/s 225 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for six
months.
4. Being aggrieved with that the appeal was preferred which was dismissed and the judgment passed by the trial court was affirmed.
5. Now this revision application has been preferred by the petitioners.
6. Learned Counsel appearing for the petitioners submits that he is quite aware that it is impermissible for the revisional court to reappreciate the
evidences upon which the order of conviction and sentence has been recorded but where finding of guilt recorded by the court below is manifestly
perverse and patently erroneous, there is no bar for the High Court under revisional power to interfere with the finding for the sake of justice.
7. Learned Counsel appearing for the petitioners further submits that it is the case where the court below has failed to consider certain important
evidence going root of the case and has relied upon inadmissible evidence and, therefore, for the sake of justice this Court by exercising revisional
jurisdiction can certainly reappreciate the evidence adduced on behalf of the prosecution. In order to substantiate his submission that on account of
non-consideration of important piece of evidence and putting reliance on inadmissible evidence, there has been flagrant miscarriage of justice it was
pointed out that P.W.6, the informant though in her written report has named petitioner No. 1 Radha Sah as the person who with ill motive caught
hold of her and snatched her golden chain but in cross-examination she has said that before the occurrence she was not knowing the name of the
petitioner No. 1 nor she had had any occasion previously to come across with him and on the day of occurrence it was first occasion for her to see
petitioner No. 1 Radha Sah. If that was the situation, then it appears quite strange as to how name of petitioner No. 1 Radha Sah did figure in the
written report. The prosecution has completely failed to put any explanation to this vital aspect of the matter. But none of the courts below did take
into consideration this aspect of the matter. It was also submitted that though the courts below did accept the versions of P.W.1 Rajendra Sah and
P.W.2 Sitaram Sah on account of being the eye witnesses, but none of them in view of other evidences such as evidence of P.W.4 Chhabi Lal
Saha and P.W.6 Sabita Devi is an eye witness. That apart, P.W.1 Rajendra Sah never claimed before the Investigating Officer to have seen the
occurrence though claimed to be an eye witness before the court and, therefore, suggestion to that effect was given to P.W.1 to which he denied,
still the courts below have taken him as an eye witness. Thus it was submitted that it is a fit case where the court in exercise of revisional jurisdiction
needs to reappraise evidence adduced on behalf of the prosecution for the sake of justice.
8. As against this, learned Counsel appearing for the State submits that though the court may have overlooked those evidences but the defect is not
so glaring that this Court in exercise of revisional jurisdiction should go for reappraisal of the evidence.
9. Having heard learned Counsel appearing for the parties and on perusal of the records I do find that P.W.6 Sabita Devi submitted a written
report before the Maheshpur Police Station alleging therein that while she was returning after easing herself, petitioner No. 1 Radha Sah caught
hold of her with ill motive and when she raised alarm, Radha Sah after snatching golden chain from her neck fled away. But in course of cross-
examination she said that she for the first time had had occasion to see Radha Sah on that day and before that she had no occasion to see him. This
piece of evidence certainly poses a question mark as to how she named the accused Radha Sah as the person who caught hold of her and
snatched away her golden chain. The prosecution does not seems to have thrown any light on it. However, one can foresee in the facts and
circumstances of the case that name must have been disclosed by other witnesses such as P.W.1 and P.W.2, who claimed to have seen the
occurrence but the evidence of P.W.6 seems to be otherwise as she has said that when she raised alarm P.W.1 and P.W.2 came over there to
whom she disclosed about the act committed by Radha Sah, The doubt which has arisen on account of the aforesaid fact deepens further in the
fact of the case that Radha Sah was apprehended at about 2-2.30 P.M. whereas occurrence took place at 11 A.M. and at that time P.Ws.1 and
2 claimed to have seen the occurrence and at one point of time they were just 5 ft. away from the petitioner Radha Sah but strangely none of them
chased and tried to catch hold of him, but all these aspects of the matter were never considered by the trial court.
10. Coming further I do find that P.W.1 and P.W.2 have claimed to have seen Radha Sao catching hold of Sabita Devi (P.W.6) and snatching
golden chain but they never seem to be the eye witnesses. So far P.W.1 is concerned, his attention was drawn towards the earlier statement made
before the police not claiming to be eye witness, rather claimed to have knew about the occurrence subsequently. Further claim of P.W.1 and
P.W.2 of being eye witnesses is belied by the evidence of P.W.4 Chhabi Lal Saha, who has testified that P.W.1 Rajendra Sah, P.W.2 Sitaram
Sah came along with others and told him that Sabita Devi (P.W.6) had disclosed them that when she had gone to ease herself Radha Sah caught
hold of her and when she raised alarm he fled away after snatching golden chain. This fact certainly belies the claim of P.W.1 and P.W.2 of being
the eye witnesses. It further gets strengthened from the evidence of P.W.6 Sabita Devi where she has disclosed in her evidence that when she
raised alarm P.W.1 and P.W.2 came and then she told about the occurrence to them. Those evidences go to show conclusively that P.W.1 and
P.W.2 were never eye witnesses. All these aspects of the matter raises a grave doubt over the prosecution case that Radha Sao did commit
offence under Sections 354 and 379 of the Indian Penal Code and hence both the courts below wrongly found him guilty for the aforesaid charges.
11. Coming to the case of other petitioners it be noticed that it is the case of the prosecution that when P.W.1, P.W.3, P.W.4, P.W.6 and other
persons (not examined) apprehended the petitioner Radha Sah at about 2-2.30 P.M. from a field, custody of the petitioner was given to
Chaukidar Barka Tudu (P.W.5) for taking him to police station and while they (P.Ws 1,3,4, 5 and 6) were taking to police station on Bus,
petitioner Nos. 2 to 4, namely, Chhabi Lal Saha, Nagendra Saha and Janardan Sah @ Janardan Saha, who were also sitting in the same Bus got
down from the Bus along with Radha Sah at village Bella Patra and in this way accused persons as per prosecution case rescued Radha Sah from
the custody of the Chaukidar and other witnesses. It may be relevant to point out here that all the witnesses, namely, P.W.1, P.W.3, P.W.4,
P.W.5 and P.W.6 have testified that petitioner Nos. 2 to 4 took away Radha Sah but none of them has said about any overt act committed by the
petitioner Nos. 2 to 4 in getting Radha Sah rescued. Therefore, in this backdrop it is to be seen whether any offence is made out u/s 225 of the
Indian Penal Code. Section 225 of Indian Penal Code reads as follows:
Resistance or obstruction to lawful apprehension of another person - Whoever intentionally offers any resistance or illegal obstruction to the lawful
apprehension of any other person, for an offence, or rescues or attempts to rescue any other person from any custody in which that person is
lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine,
or with both;
12. From bare perusal of the provision it appears that the person from whose custody the rescue is effected must have authority to detain lawfully
the person rescued. Otherwise, no offence is committed for effecting the rescue. It is not necessary that the custody from which offender is rescued
should be that of a police man, it is enough that the custody is one which is authorized bylaw and it must be proved that the person rescued was in
lawful custody at the time. It would be very apt to mention that u/s 43 of the Criminal Procedure Code even a private individual can have authority
to take culprit in custody. But that power is not unlimited, rather it is a limited which would be evident from the provision as enshrined in Section 43
of the Code of Criminal Procedure, 1973 which reads as follows:
Arrest by private person and procedure on such arrest -Any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made
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.
13. From perusal of the provision it is evidently clear that it empowers a private person to arrest or cause to be arrested (i) a proclaimed offender
(ii) any person, who in his presence commits non-bailable and cognizable offence but not after the completion of such offence.
14. Here in the instant case admittedly Radha Sao was not arrested by the witnesses at the time of commission of the offence, i.e. at 11 A.M.,
rather as per the evidence of the, witnesses Radha Sah was arrested at 2-2.30 P.M. much after the occurrence. Moreover, P.W.1 and P.W.2
who claimed to have seen the occurrence have not found to be the eye witnesses hereinbefore and, therefore, none of the witnesses who claimed
including P.Ws 1 and 2 to have arrested Radha Sao had authority to arrest him as neither the occurrence took place in presence of them nor as
per their own version arrested the accused at the time of occurrence. Therefore, the petitioner No. 1 Radha Sao can never be said to have been
lawfully detained by the witnesses and once detention of the accused was not lawful, question of committing offence by other accused for rescuing
Radha Sah u/s 225 of the Indian Penal Code never arises. That apart, one can be held guilty for an offence u/s 225 if he rescues a person who was
detained lawfully. Here the word ''rescue'' though not defined in the code will always mean an act of getting a person free forcibly from custody
against the will of person in whose lawful custody he was. Therefore, some overt act needs to be there if one is said to have rescued a person from
the lawful custody. But here prosecution has not come with a case that in what manner petitioner Nos. 2 to 4 got petitioner No. 1 rescued. In other
words, no overt act if any played by the petitioners has been alleged. In this view of the matter, petitioner Nos. 2 to 4 cannot be said to have
committed offence u/s 225 of the Indian Penal Code. All these aspects of the matter were not taken into consideration by the courts below. Thus, I
do find that this is a fit case where this Court does not interfere with the finding given by the courts below, there would be miscarriage of justice.
Accordingly, the order of conviction and sentence passed by both the courts below are hereby set aside and the petitioners are hereby acquitted of
the charges levelled against them.
15. In the result, this revision application is allowed.