Patna High Court
Udit Singh And Ors. vs Emperor on 22 January, 1925
Equivalent citations: 86IND. CAS.988, AIR 1925 PATNA 762
JUDGMENT Jwala Prasad, J.
1. The petitioners seven in number have been convicted of assault. Petitioners Udit Singh, Narain Singh and Khiro Singh have been convicted under Section 325, Indian Penal Code, and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 100 each. The remaining petitioners Dipan Singh, Baldeo Singh, Gursahai Singh and Daso Singh have been convicted under Section 323, Indian Penal Code, and sentenced to pay a fine of Rs. 50 each. Two other persons Rameshwar Lall and Ram Sarup Singh were also put on their trial along with the petitioners. They have, however, been acquitted.
2. Rameshwar Lall is the patwari of the malik; Ram Sarup Singh is his gomashta and Udit Singh, Narain Singh and Dipan Singh are barahils of the malik. The accused are residents of a village called Handia and the complainant Chhotoo is a resident of village Ekowna. The khudkasht lands of village Handia are just after the lands of village Ekowna. The complainant is son of the Bidu Gope, Mithu is his brother. They are residents of village Ekowna. The case for the prosecution is that on the day of occurrence the abovenamed barahils of the malik, namely, petitioners Narain Singh, Udit Singh and Dipan Singh went to the complainant's house and asked him to supply five seers of milk and one pot of curd for the tilsankranti festival. The complainant declined on the ground that he had no milk cow. The accused began to abuse the complainant who returned their abuse. The accused went away threatening him, and in the evening they came in the company of other accused in a mob of about 125 persons in number, all armed with lathis, to the complainant's khalihan where he was with his brother Mithu and his father Bidu Gope. Patwari Rameshwar Lall and gomashta Ram Sarup Singh ordered his companions to assault the complainant and his men to remove paddy and to impound his cattle. Thereupon Khiro Singh and Narain Singh assaulted Bidu Gope on his palms causing fracture of left ring finger and right thumb while Dipan Singh assaulted on his head and Udit Singh on his left leg. Baldeo Singh, Daso Singh, Gursahai Singh and Khiro Singh assaulted Mithu Gope. The complainant fled to a distance of four or five bamboos out of fear. The accused then removed sixty maunds of paddy worth about Rs. 90 and drove away 18 heads of cattle from the Bathan and impounded them in the Nardiganj pound. The complainant afterwards got them released on payment of Rs. 13-8-0.
3. The defence story is that the complainant and his witnesses were grazing their buffaloes about 40 in number in the khudkasht land of the malik of Handia and the jagir laud of Paro Singh when Janki Kahar, Gokhal Singh and the petitioners Khiro Singh and Dipan Singh seized them and were driving them to the pound when the complainant and his men came armed with lathis and forcibly rescued the cattle after assaulting Janki Kahar and Khiro Singh. That was the subject of a counter-case.
4. The learned Magistrate held that the prosecution failed to establish the motive alleged by the complainant for the commission of the offence by the accused. The motive alleged was the refusal on the part of the complainant to supply milk and curd to the accused. The Magistrate has held, upon excellent reasons given by him that the motive alleged is "absurd," on the other hand, the Magistrate has accepted the origin of the occurrence as stated by the accused. He says: "The village Handia is at a distance of about half a mile from Ekowna and the khudkasht land of the proprietor of Handia begins after the land of Ekowna. It is also admitted by the prosecution witness No. 5 that the, cattle of Ekowna go to Handia for grazing. It is, therefore, no wonder that the cattle of the complainant and his witnesses were seized by the accused for grazing the crop and that the complainant and his witnesses in the attempt to rescue the cattle received injuries, but being overpowered the accused succeeded in impounding 18 heads of cattle." "The counter-complaint (of the defence) was filed quite in time, whereas this complaint was filed in the last hour at about 5 P.M. after taking time to concoct the motive.... I have no reason to disbelieve the defence story." The Magistrate disbelieved the case of the prosecution that the cattle of the complainant were removed from his Bathan and that sixty maunds of paddy was also removed by the accused. The Magistrate says "I am not prepared to believe this part of the story." He accepts the defence case that "the complainant and his witnesses were grazing their buffaloes in the khudkasht field of Handia and the accused Khiro Singh and others began to drive the cattle to pound when the complainant and his men raised alarm and forcibly rescued about 22 heads of cattle after assaulting Khiro Singh and Janki Kahar who, however, succeeded in impounding 18 heads of cattle." Upon these findings the Magistrate acquitted the accused of the charges under Sections 147, Indian Penal Code, of rioting and 379, Indian Penal Code of theft. After this, the only charge against the accused was of assault under Sections 325 and 323, Indian Penal Code.
5. The accused pleaded right of defence with respect to this part of the prosecution case. The Magistrate has refused to give the accused the right of private defence upon the ground that the Cattle in question belonged to the complainant and in trying to rescue them from the accused, who had seized them while trespassing in their field and were taking to the pound, the complainant was not committing any theft, robbery or mischief, whereas Section 97, Indian Penal Code, gives right of private defence to defend a property only against an offence following the definition of theft, robbery, mischief or criminal trespass. In the present case the Magistrate says that the cattle belonged to the complainant and, therefore, there could be no theft and hence no right of private defence against the rescue of the same accrued to the accused. Another reason why the Magistrate refused the right to private defence to the accused is stated by him to be that there was time to have recourse to the protection of public authorities and consequently there was no occasion for the exercise of right of private defence. This view of the Magistrate is entirely wrong After having taken this view the Magistrate held that the accused were not justified in causing severe injuries to Bidu Gope and simple hurt to Mithu Gope. The view taken by the Magistrate will not stand a critical examination of it. The learned Sessions Judge has lightly treated this point and has not entered into any discussion. He simply says in his judgment: "The decision of the lower Court on the question of the right of private defence is in my opinion, sound and in view of this I uphold the conviction."
6. Upon the findings of the Magistrate the accused were exercising the right given to them under Section 10 of the Cattle Trespass Act (I of 1871). According to his finding the complainant and his men were grazing their cattle upon the land of the accused and were doing damage thereto. The accused were, therefore, interested in seizing the cattle and taking them to the pound. Section 24 of the Act forbids resistance or opposition to the seizure of cattle liable to be seized Under the Act. Therefore the complainant and his men were not entitled to oppose the seizure of the* cattle when they were being taken to the pound by the accused. Therefore the accused were lawfully in possession of the property under the Cattle Trespass Act when they were taking them to the pound. The fact that the accused were not the owners of the property does not affect the question, for Illustrations (j) and (k) to Section 378 will show that removal from the lawful possession of a person is theft even by the owner of the property if the removal is with dishonest intention. In the present case, as observed above, the accused were lawfully in possession of the property; they had not only right but were bound to take the cattle to the pound within 24 hours of the seizure. The complainant and his men in trying to rescue the cattle were trying to remove them from the lawful possession of the accused with the dishonest motive of causing wrongful gain to themselves, at least with respect to the fee which they would have to pay in getting the cattle released from the pound. As a matter of fact the accused had seized 40 heads of cattle; the complainants rescued 22 heads and thus saved to themselves the fee for those cattle, and got a release of the remaining 18 heads of cattle on payment of Rs. 13-8 only. In the present case it is absurd to say that there was time to have recourse to public authorities. The cattle were doing damage to the accuseds field, and they consequently seized them and were taking them to the pound. In the meantime the complainant and his men came and began to rescue the cattle. The accused, however, succeeded in taking some of the cattle to the pound. Where was the time to go to the public authorities? The suggestion of the Magistrate is that the accused should have left the cattle and allowed them to be rescued, and then they ought to have lodged a complaint against the complainant for illegal rescue. This is no doubt a very good suggestion of the principle of nonviolence to be exercised on the part of the accused, but they had a right to commit violence and to protect the cattle from being illegally rescued and also to protect their own person from the attacks of the complainant and his party; and I wonder if the exercise of the principle of non-violence would have saved the accused in the situation in which they were placed and I am afraid if they had not stood up boldly and fought against the unlawful act of the complainant they would have received severer injuries than what they received. Suppose for the sake of argument that the rescue by the complainant of the cattle seized by the accused was not an act of the theft. Still the question remains that when the complainant and his men came and actually rescued about 22 heads of cattle more than half the number, they could not do so without using violence, and if they used violence the accused were entitled to return the blows in order to' defend themselves from the attacks of the complainant and his men. The question of exceeding the right of private defence does not always depend upon the amount of injuries caused. Both sides were admittedly injured in the present case, although the injuries on the person of the men of the complainant were more in number and severer in nature, still the accused having the right of private defence were justified in causing more injuries to the party of the complainant than they themselves received for if they had not done so, they would not have been able to save themselves and the 18 heads of cattle which they successfully took to the pound. This aspect of the case has not been looked into by the Courts below. Rescue of cattle is a very serious thing and must be put an end to, for the owners of fields cannot tolerate the cattle of other persons trespassing upon their lands. Consequently the law has given them power to seize the cattle and put them into pound. Forcibly rescue has also been held to be illegal. Therefore the complainant and his men were aggressors in the present case as held by the Court below and they must thank themselves if in their illegal attempt to rescue the cattle they received injuries on their person. There is nothing to show, and the facts found are not clear, that the accused inflicted more injuries than were absolutely necessary to defend themselves and the cattle in their possession.
7. The result is that the application is allowed, the convictions and the sentences are set aside, and the fine, if realised, should be refunded.