Kanai Lal Gowala and Another vs Queen-Empress

Ghose and Wilkins, JJ.—We think, having regard to the terms of Section 79 of the Indian Penal Code, that the conviction in this case is not right. The learned Sessions Judge seems to think that there was no mistake of fact when the petitioner took steps to examine the palki. He says that the petitioner "acted on a mere supposition, on the chance that the judgment-debtor might be in the palki. " We find, however, that the palki was coming out at the time, not of the female but of the male apartments, and the judgment-debtor being in the house in question, the petitioners, in the action they took, naturally thought there was some reason to believe that the judgment-debtor was getting out of the way, (there having been a warrant issued for his arrest) so as to evade the service of such warrant.

The lady who was in the palki has given her evidence in the case; and she says that the whole thing was the work of a moment. That being so, we are unable to say that any harm was really intended by the petitioners when they went to examine the palki, since they had some reason to believe, as is apparent upon this record, that the judgment-debtor might be in the palki. We do not think, therefore, that the petitioners in this case should have been convicted of an offence u/s 341 of the Indian Penal Code, and we accordingly set aside the conviction and sentence and direct that the fines, if realized, be refunded.