Patna High Court
Bhado Mandal And Ors. vs The State on 19 November, 1962
Equivalent citations: AIR1963PAT199, 1963CRILJ607, AIR 1963 PATNA 199, ILR 43 PAT 709
JUDGMENT G.N. Prasad, J.
1. The petitioners are five in number. Petitioner Bhado Mandal has been convicted under Sections 148 and 325, Indian Penal Code, and sentenced to undergo rigorous imprisonment for two months on the first count with no separate sentence on the second count. Petitioner Lachman Mandal has also been convicted under Section 148 of the Code and sentenced to undergo rigorous imprisonment for two months as well as under Section 324 of the Code under which no separate sentence has been imposed upon him. Each of the remaining three petitioners has been convicted under Sections 147 and 323, Indian Penal Code, and sentenced to undergo rigorous imprisonment for one month on the first count with no separate sentence on the second. All the five petitioners have further been convicted under Section 24 of the Cattle Trespass Act, but no separate sentence has been imposed upon any of them thereunder.
2. At the time when this application was admitted in this Court, a rule was issued upon the petitioners to show cause why the sentences imposed upon them should not be enhanced if their convictions were upheld.
3. Briefly stated the facts are these: On 10th August, 1958, in the afternoon when the complainant Kailu Gope (P. W. 2) went to see his field containing maize, rahar and paddy seedlings situate in Kahuiya Bahiar in village Goradih, he found five heads of buffaloes grazing his paddy seedlings. He seized the animals and proceeded to take them to the pound. But, in the meantime, all the five petitioners came up in a body carrying various weapons. Petitioner Bhado Mandal was armed with a bhala, petition Lachman Mandal with a pharsa and the other three petitioners with a lathi each. They forcibly rescued the animals and in that process each of the petitioners assaulted Kailu (P. W. 2) with their respective weapons. Petitioner Bhado assaulted Kailu with the iron gulli of bis bhala on his nose. Petitioner Lachman Mandal aimed his pharsa at Kailu who in warding off the blow sustained injuries between his fingers. The remaining three petitioners also assaulted Kailu on different parts of his body with their lathis.
4. On hearing the cry of P. W. 2 his brother Bichho Gope (P. W. 5) and one Ajodhi arrived near him. They took him to the office of the Gram Panchayat at Kurudih where they met the Sarpanch (P. W. 6). Under the latter's direction, 'Kailu on the following day got his injuries examined by a doctor at Sabour where he was admitted as an indoor patient in the hospital. P. W. 5 again contacted the Sarpanch who told him, on seeing the injury report of Kailu, that the case Was beyond his jurisdiction. Thereupon P. W. 5 took a Mokhtear to Sabour hospital where Kailu was an indoor patient. A petition of complaint "was drawn up at the hospital itself and filed in the Court of the Sub-divisional Magistrate on the 14th August, 1958. It was on the 29th August, 1958, that P. W. 2 could be examined on solemn affirmation. On the same day cognizance was taken and processes were issued to the petitioners.
5. The defence put forward on behalf of the petitioners was that they had committed no offence and that they had been falsely implicated since P. W. 5 had brought a rent commutation case in which petitioner Paddu Mandal had intervened.
6. Upon a consideration of the materials on ' the record both the Courts below have found the prosecution case to be substantially true.
7. In revision it has been contended by Mr. Prem Shankar Sahay appearing on behalf of the petitioners that the conviction under Section 24 of the Cattle Trespass Act could not be sustained because neither of the two Courts below have recorded any clear finding as to any damage having been caused to the paddy seedlings of P. W. 2 so as to justify his act in seizing the trespassing cattle. In support of his contention Mr. Sahay has relied upon the cases of Dassi Goala v. Sardar Mahton, 1 Pat LT 176: (AIR 1920 Pat 832) and Chokat Ahir v. Suraj Singh, 21 Pat LT 627: (AIR 1940 Pat 299), both being decisions of a Single Judge of this Court. While it may be true that there is no finding in so many words in the judgment of both the Courts below that damage had been caused to the crop of P. W. 2 by the trespassing cattle, there is clear evidence on the record to this effect. Therefore, a finding of damage to the crop would be implicit in view of the fact that the trying magistrate has found the main prosecution story, deposed to and corroborated by the different eye witnesses, to be true. While reciting the prosecution case the learned magistrate has mentioned that P. W. 2 had seized the cattle belonging to the accused persons finding that they were grazing his paddy seedlings. Apparently, therefore, the magistrate has accepted the prosecution case relating to the damage to the paddy seedlings which entitled P. W. 2 to seize the animals in order to take them to the pound. Because, it is inconceivable that while the paddy seedlings had been grazed by the trespassing animals, no damage was caused to the crop.
8. The case reported in 1 Pat LT 176: (AIR 1920 Pat 832) was decided upon its own facts. There, the evidence about damage was not accepted. If, however, it was intended to lay down any broad proposition that in spite of grazing by cattle of some crop no damage could be presumed to have been caused so as to justify the seizure of the trespassing cattle, then with great respect to the learned Judge, who decided Dassi Goala's case, 1 Pat LT 176: (AIR 1920 Pat 832) I am unable to assent to that view.
9. In Chokat Ahir's case, 21 Pat LT 627: (AIR 1940 Pat 299) it was pointed out by Dhavle, J. that a clear finding of damage done by the trespassing cattle is essential for a conviction under Section 24 of the Cattle Trespass Act. This proposition cannot be disputed. But, this case is not an authority for the point raised by Mr. Sahay that the conviction under this section must be set aside for omission to record a finding of damage, even though there is, as in the present case, acceptable evidence on the record in support of the prosecution case of grazing resulting in damage to the crop. In such a case, it would be wrong to set aside the conviction under Section 24 of the Cattle Trespass Act totally ignoring the evidence of damage. In my opinion, the correct view to take in cases of this kind is that expressed by Imam, J. (as he then was) in an unreported decision of this Court (Criminal Revn. No. 1126 of ,1950, Bani Rai v. The State, D/- 16-11-1950 (Pat)). Dealing with an argument similar to the one addressed to us by Mr. Saha, his Lordship observed as follows:
"So far as the conviction under Section 24 of the Cattle Trespass Act is concerned, both the Courts below accepted the story of the complainant that his crop had been grazed by the cattle which they had seized in order to take them to the pound. In my opinion, when cattle, which have trespassed upon a person's land, graze the crop, it follows that that crop was damaged, though the damage may on occasions be very slight. Mr. Sen placed before me the decision of a Single Judge of this Court to show that mere grazing would not be enough for conviction under Section 24 of the Cattle Trespass Act. With great respect to learned Judge, I cannot accept that view. To my mind, when cattle have grazed the crop, damage of some kind must ensue. I have held this view ever since I have been a member of this Court and will continue to hold this view until a larger Bench overrules me and takes a contrary view".
10. With respect, I am in complete agreement with this view. The evidence is clear in this instant case that the trespassing cattle had grazed some of the paddy seedlings in the field of P. W. 2. This must have caused damage to the crop whatever the nature or extent of the damage might be. P. W. 2 was, therefore, perfectly within his rights to seize the trespassing cattle acting under Section 10 of the Cattle Trespass Act in as much as at the time of seizure the cattle had not merely trespassed upon his land but were also doing damage to some crop thereon.
11. It was then urged that as the charges for rioting framed in this case stand, there can be no conviction under Section 147 or 148, I. P. C., since in the charge framed against petitioner Lachman Mandal no mention was made of the fact that the common object of the unlawful assembly was to commit assault in addition to the further common object of rescuing the cattle lawfully seized by P. W. 2, although there was no such defect so far as the charge framed against Bhado Mandal was concerned. But, this contention loses much of its force in view of what I have already held, i.e., that the seizure of the cattle on the part of P. W. 2 was lawful. It would follow that the common object of the unlawful assembly was to rescue the cattle which P. W. 2 had lawfully seized. As such, it is immaterial that the further common object of assault mentioned in the charge framed against petitioner Bhado Mandal was not repeated in the charge framed against petitioner Lachman Mandal.
12. Mr. Sahay in showing cause against the rule of enhancement issued by this Court has sought to raise two points on the merits of the case. He has first drawn our attention to the delay in filing the petition of complaint. It was filed on the 14th August, 1958, whereas the occurrence took place in the afternoon of the 10th August, 1958. No information of the occurrence had been lodged by P. W. 2 or any of his men before the police and there was also some delay in examining Kailu on solemn affirmation. Mere delay in filing the petition of complaint cannot however, be a suffi-
cient ground for rejecting the prosecution case against the petitioners, especially when their case of false implication has been negatived by the Courts below. Besides, there is ample explanation for the delay. The evidence of the Sarpanch (P. W. 6) shows that Kailu (P. W. 2) had met him in the evening of the occurrence when he bad some injuries on his person. P. W. 6 had directed him to bring an injury report. Later on, when Bichho (P. W. 5) brought the injury report in respect of the injuries of P. W. 2, as found by the doctor (P. W. 1), who had examined Kailu in the evening of the 11th August, 1958, then the Sarpanch (P. W. 6) found the case to be beyond the jurisdiction of the Gram Cutcherry, and so he asked P. W. 5 to seek his remedy before the Sub-Divisional Magistrate. It was then that P. W. 5 arranged to take a Mukhtear to the Sadar Hospital where Kailu (P. W. 2) was confined as an indoor patient. The petition of complaint was thereafter drawn up in the hospital and filed in Court on the next day, i.e., on the 14th August, 1958. It was obviously because Kailu was confined in the hospital that he could not be examined on solemn affirmation until the 29th August, 1958. Therefore, there was no wilful delay on the part of Kailu in filing the petition of complaint, which might create any doubt as to the correctness of the prosecution case.
13. The second point raised by Mr. Sahay relates to the actual place where Kailu (P. W. 2) was assaulted at the time of the rescue of the animals. Kailu himself has deposed that it was to the west of the river about 15 or 20 cubits away from his grazed field. On the contrary, the evidence of Dukhan (P. W 3) is that the place of assault lay on the eastern bank of the river, when P. W. 3 was present on the western bank thereof. But P. W. 3 had stated in his examination-in-chief (fiat he was on the east of the river when he had seen Kailu rounding up and driving the animals. According to P. W. 2, the river lay on the western boundary of his grazed field, indicating thereby that he had rounded up the cattle on the eastern bank of the river. Evidently, therefore, it was under some confusion in the matter of direction that P. W. 2 stated in his cross-examination that the assault on him had taken place on the west of the river. A confusion of this nature cannot affect the truth of the main prosecution case.
14. For the reasons which I have given above, I am of the opinion that there is no merit in this application. The learned Additional Sessions Judge, who heard the appeal, has rightly pointed out that the sentence imposed upon the petitioners by the learned trying Magistrate is extremely inadequate. At least against petitioner Bhado Mandal this observation is perfectly correct, since it was he who was responsible for the fracture of the nasal bone of the complainant (P. W. 2) whom he had struck with the iron gulli of his Bhala. Although the sentence is inadequate against the other four petitioners also, I do not think that any interference is called in their case. But so far as petitioner Bhado Mandal is concerned, the sentence must be enhanced to one of rigorous imprisonment for four months in addition to a fine of Rs. 50/-, or, in default, rigorous imprisonment for one month more. The entire amount of fine, if realised, will go to the complainant (P. W. 2) by way of compensation.
15. In the result, the application is dismissed; and, the rule of enhancement is made absolute against petitioner Bhado Mandal alone, as indicated above, and discharged against the remaining four petitioners.
Anant Singh, J.
16. I agree.