Akbar Sheikh vs The State

Mitter, J.—This is a petition for revision of an order of conviction and sentence u/s 429 of the Indian Penal Code.

The prosecution case was that at about 5-30 p.m. on March 20, 1953, the Petitioner suddenly appeared and speared a white milch cow which together with other cattle the complainant was at the time tending in a field. The injury caused to the cow was 3" long, 1" thick and 3" deep, but fortunately it did not cause any permanent disability to the animal. The evidence in support of this case was accepted by both the courts below and we are satisfied, upon an examination of that evidence, that the finding that it was the Petitioner who caused the injury cannot possibly be disputed. On the evidence, the courts below held that the Petitioner had been guilty of maiming the cow within the meaning of Section 429 of the Indian Penal Code. The Petitioner was sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 300, in default, suffer rigorous imprisonment for three months more. It was ordered that out of the fine, if realised, Rs. 100 was to be paid to the complainant as compensation.

Mrs. Mukti Maitra appearing on behalf of the Petitioner has taken two points in support of the Rule. The first point is that on the evidence the Petitioner could not be said to have been guilty of maiming the cow within the meaning of Section 429. The veterinary surgeon who was examined on behalf of the prosecution deposed that the cow had been maimed as a result of the injury concerned. Apparently, this point as to the meaning of the term "maiming" was not considered either by the witness or by the courts below. It is clear to us that the term "maiming" refers to an injury which causes the privation of the use of a limb or a member of the body. It must, in any case, imply a permanent injury affecting the use of a limb or a member of the body. In that view of the matter, it is difficult to say that on the facts it was established beyond any doubt that the cow concerned had been maimed within the meaning of Section 429, Indian Penal Code. It is clear, at the same time, as we read the evidence, that the Petitioner attempted to maim the cow. That being so, although we do not regard a case u/s 429, Indian Penal Code, having been established beyond all reasonable doubt, we must convict the Petitioner of an attempt to commit an offence u/s 429, Indian Penal Code. We would, accordingly, convict the Petitioner u/s 429 read with Section 511 of the Indian Penal Code.

The other point taken by Mrs. Maitra which concerns the credibility of the evidence in the case is of no substance.

As to sentence, we think that a sentence of rigorous imprisonment for three months together with a fine of Rs. 300 and an order to pay Rs. 100 out of the fine, if realised, to the complainant as compensation would meet the- ends of justice. In default of payment of the fine of Rs. 300 the Petitioner must serve a further sentence of three months'' rigorous imprisonment. Subject as aforesaid, the Rule is discharged. The Petitioner must surrender to his bail and serve out the sentence.

Sen, J.

I agree.