A person has a right of private defence to protect himself from an illegal search of his house.

N.L.Untwalia, J.

1. The sole appellant in this appeal was committed to the Court of Sessions by Shri S.N. De, Judicial Magistrate, 1st Class, Monghyr, to stand his trial on charges under Sections 353, 307 and 323 of the Indian Penal Code. The learned Sessions Judge, Monghyr, by his judgment and order under appeal has acquitted the appellant of the charge under Sec.307. Penal Code, but has convicted him under Sec.353, Penal Code, and sentenced him to undergo rigorous imprisonment for one year. In the Sessions Court in place of the charge under Sec.323, the charge under Sec.332 of the Indian Penal Code was framed and the appellant has been convicted for that charge also and has been sentenced to undergo rigorous imprisonment for two years. The sentences have been directed to run concurrently.

2. The prosecution case is that on the 26th October, 1961, Narain Prasad Singh (P. W. 1), Officer-in-charge of Jamalpur Police Station, was investigating a case under Sec. 457/380, Indian Penal Code, of the said police station and in that connection he suspected that the stolen articles might be found in the house of the appellant in Mahalla Nayagaon within the jurisdiction of Jamalpur police Station. P. W. 1 thought that if the house of the appellant was not quickly searched, the incriminating articles might be removed from there and so he along with Shrikrishna Singh (P. W. 3), Havildar of Nayagaon Town Outpost, and two search witnesses, Sarjug Tanti (P. W. 4) and Baldeo Singh (P. W. 5) went to the house of the appellant at about 6 P.M. on the 26th October, 1961. P. W. 1 called out the appellant) after reaching his house. He came out of it with a chhura in his hand and stood in front of the) searching party near the door of his house and the Sub-Inspector of Police (P, W. 1) told him that a theft was reported and that he had full belief that the stolen articles would be found in his house and that he wanted to search his house in presence of the two witnesses. The appellant then said that he would not allow his house to be searched. P. W. 1 replied that he must search his house and that the appellant could not legally obstruct him, from doing so. He asked him to take his personal search. The appellant wanted to strike P. W. 1 on his neck with the chhura in his hand and said that he would kill him. The Havildar (P. W. 3) wanted to snatch away the chhura from the hand of the appellant but the latter attempted to strike him. The Havildar had a small stick in his hand and he struck the hand of the appellant with the stick as a result of which the chhura fell down. Thereafter, there was a scuffle between the Havildar and the appellant and the latter, according to the prosecution version of the occurrence, bit the hand of the havildar with his teeth and scratched his nose with his nails and he further assaulted him with stone chips. Subsequently, P. W. 1 and the search witness (P. W. 4) caught hold of the appellant and took charge of the chhura. A search list was prepared. Later on, the house of the appellant was searched but nothing incriminating was recovered. P. W. 1 prepared a fardbeyan (Ext. 2) on his own statement on the basis of which first information report (Ext. 3) was drawn up by P. W. 1, who then directed the Junior Sub-Inspector (P, W. 7) to make investigation of the case. After investigation the charge sheet was submitted by the investigating officer (P. W, 7).

3. The defence of the appellant is that he committed no offence and the false case has been engineered against him by the police officers with the false evidence of their stock witnesses (P. Ws. 4 and 5). The enmity between the appellant and the havildar is said to be over some quarrel for free supply of pan (betel) to the havildar. The defence further is that when P. Ws. 1, 3, 4 and 5 arrived at the house of the appellant, he did not obstruct them from searching his house but he told the police officers that they should bring independent search witnesses for search