Bharat Singh and Others vs State

B.N. Katju, J.—Bharat Singh, Subedar Singh, Phool Singh, Shankar Singh, Ram Sanehi and Hori Lal have filed this appeal against the judgment of II Civil and Sessions Judge, Etawah dated 8-1-1974 passed in Sessions Trial No. 19 of 1973. Ram Sanehi Appellant has been convicted Under Sections 302, 307/149, 323/149 and 148 IPC and has been sentenced to imprisonment for life, four years R.I., four months RI and two years RI respectively. Hori Lal Appellant has been convicted u/s 302/149, 307, 323/149 and 148 IPC and has been sentenced to imprisonment for life, five years R.I., four months RI and two years RI respectively. The remaining Appellants, namely, Bharat Singh, Phool Singh, Subedar Singh and Shanker Singh, have been convicted Under Sections 302/149, 307/149, 323/149 and 147 IPC and have been sentenced to imprisonment for life, four years R.I., four months R.I. and 1-1/2 years R.I. respectively. All the sentences have been ordered to run concurrently.

Subedar Singh, Phool Singh, Shanker Singh, Ram Sanehi and Hori Lal Appellants are the sons of Bharat Singh Appellant. Sheodan Singh co-accused is the nephew of Bharat Singh Appellant. All the Appellants and Sheodan Singh co-accused are residents of village Nagla Pokhi. Chandrapal (PW 1) and Netrapal (PW 2) are the sons of Dhakan Singh. Bhoop Singh (deceased) was also a son of Dhakan Singh. Chandrapal (PW 1) and Netrapal (PW 2) are residents of village Bania Dhera and Bhoop Singh (deceased) also resided in that village. The distance between village Bania Dhera and village Nagla Pokhi is about 2-1/2 furlongs.

The case of the prosecution is that on 19-10-1971 at about 10 AM when Netrapal (PW 2) and Bhoop Singh (deceased) went to their field in Ratia. Har situated at a distance of about two furlongs from village Bania Dhera and village Nagla Pokhi in order to cut fodder, they found the cattle of the Appellants grazing their field. They rounded them up and began to take them to the cattle pound in Patiali. In the meantime Chandrapal (PW 1), Baljit (PW 3) and Kaptan also came there and assisted them. When the cattle reached the Tiraha they bolted and ran towards Nagla Pokhi. The aforesaid persons, however, followed them and after the cattle reached Nagla Pokhi they again rounded them up. When Sheodan Singh co-accused and Bharat Singh Appellant asked them why they were rounding up their cattle they replied that the cattle had damaged their field and they would take them to the cattle-pound. Sheodan Singh co-accused and Bharat Singh Appellant then told them that they would not allow them to do so and an exchange of abuses thereafter took place between them and Bharat Singh Appellant and Sheodan Singh co-accused told the other Appellants to bring their guns. In the meantime Raghubir Singh, Himmat Pal Singh, Jagan Jatav and Kaptan Singh also came there. Phool Singh, Subedar Singh and Shankar Singh Appellants then brought their lathis and Hori Lai Appellant brought the unlicensed gun and Ram Sanehi apppellant brought the licensed gun of his father and Phool Singh, Shanker Singh and Subedar Singh Appellants assaulted Netrapal (PW 2) with their lathis. Thereafter on the instigation of Bharat Singh Appellant and Sheodan Singh co-accused Ram Sanehi Appellant fired at Bhoop Singh (deceased) as a result of which he received gun shot injuries and Hori Lal Appellant fired twice causing gun shot injuries to Netrapal (PW 2), Baljit (PW 3) and Kaptan. All the Appellants and Sheodan Singh co-accused then ran away.

The first information report was scribed by Himmat Singh at the dictation of Chandrapal (PW 1) and was lodged by Chandrapal (PW 1) at PS Patiali at 5-30 PM on the same day (19-10-1971).

The injuries of Baljit (PW 3), Kaptan and Netrapal (PW 2) were examined by Dr. C.K. Sharma on 20-10-1971 at 12-30 PM, 12-45 PM and 1 PM respectively and the undermentioned injuries were found on their persons:

* * * * 6. All the injuries were caused by firearms and were about one day old.

Bhoop Singh (deceased) died at about 6.30 P.M. on the same day (19-10-1971) as a result of the injuries received by him.

The post-mortem examination was conducted by Dr. M.K. Agrawal (P.W. 11) on 21-10-1971 at 10.30 A.M. and the undermentioned ante-mortem iajuries were found on the body of the deceased:

* * * * 9. On internal examination gunshot wound was found in the heart and a pel-let was found in the pericardium cavity. Gunshot wounds were also found in the stomach, small intestines, mesentery, liver, spleen and left kidney. In the opinion of Dr. Agrawal, the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death.

The prosecution examined five eye-witnesses, namely, Chandrapal (P.W. 1), Netrapal (P.W. 2), Baljit (P.W. 3), Raghubir Singh (P.W. 4) and Himmat Pal Singh (P.W. 7).

All the Appellants pleaded not guilty and set up a counter version of the occurrence. According to their version, on the day of occurrence at about 10 A.M. when Ram Sanehi and Hori Lal Appellants went to their Bahadurwala Chak they found Bhoop Singh (deceased), Netrapal, Baljit, Kaptan and Gajraj cutting their Bajra crop. When they objected a quarrel took place between them and Netrapal (P.W. 2) was also assaulted and received lathi injury. On the alarm raised by Bhoop Singh (deceased) and Ors. 15 or 16 persons including Raghubir, Malkhan Singh, Sadhu Singh and Shripal came there and they advanced to attack Ram Sanehi and Hori Lal Appellants. Both these Appellants then ran towards their house but were chased by Bhoop Singh (deceased) and others and Bhoop Singh (deceased) and Netrapal (P.W. 2) fired at them but they managed to enter their house. Some of the members of the party of Bhoop Singh (deceased) entered their house and tried to catch them and began to loot their property and also tried to molest their women folk and some of them also began to untie their cattle. Bharat Singh Appellant then told them not to do so but when they did not stop he fired at them in the exercise of the right of private defence of person and property.

A counter report regarding the incident was lodged by Bharat Singh Appellant at P.S. Kotwali Etah on 20-10-1971 at 6.05 P.M.

Three witnesses were examined in defence, namely, Ram Singh (DW 1), Subedar (DW 2) and Siyaram (DW 3).

The trial Court after considering the evidence on record came to the conclusion that the prosecution had succeeded in establishing the guilt of the Appellants and convicted and sentenced them as mentioned earlier. Sheodan Singh co-accused was, however, acquitted.

Chandrapal (P.W. 1), Netrapal (P.W. 2), Baljit (P.W. 3), Raghubir Singh (P.W. 4) and Himmat Pal (P.W. 7) supported the prosecution case regarding the incident. The evidence of Chandrapal (P.W. 1) is corroborated by the first information report lodged by him in which Netrapal (P.W. 2), Baljit (P.W. 3), Raghubir Singh (P.W. 4) and Himmat Pal (P.W.7) have been mentioned as eye-witnesses. The presence of Netrapal (P.W. 2) and Baljit (P.W. 3) is also established by the injuries received by them. It was stated by Chandrapal (P.W. 1) that he was also assisting Netrapal (P.W. 2) and Bhoop Singh (deceased) in taking the cattle to the cattle pound at Patiali when they bolted and ran towards village Nagla Pokhi and he also ran after them along with the deceased, Netrapal (P.W. 2) and Baljit (P.W. 3). The explanation given by him for his presence at the time of the incident appears to be convincing. It was stated by Raghubir Singh (P.W. 4) that he was at his field at a distance of about 1 1/2 furlongs from the place of occurrence at the time of the incident and he came to the place of occurrence on hearing noise. It was stated by Himmat Pal (P.W. 7) that he was going to village Bania Dhera from the grove of his father in Ratia Har when he heard some noise and he went to the place of occurrence. The explanation furnished by both these witnesses regarding their presence at the time of the incident also appears to be convincing. It was, however, stated by all the eye-witnesses that Subedar Singh, Phool Singh and Shankar Singh Appellants assaulted Netrapal (P.W. 2) with lathis but this cannot be accepted as only one lathi injury was found on the person of Netrapal. It appears that one of them caused the lathi injury found on the person of Netrapal (P.W. 2) but as it is not possible to determine who he was, all these three Appellants are entitled to the benefit of doubt and deserve to be acquitted. The evidence of all the eye-witnesses that Bharat Singh Appellant and Sheodan Singh, co-accused asked the other Appellants to bring guns and thereafter instigated Ram Sanehi and Hori Lal Appellants to fire at the party of the complainant cannot also be accepted as it is highly improbable that both of them would have done so in a chorus.

Both these Appellants are, therefore, also entitled to the benefit of doubt and deserve to be acquitted. It appears that when an exchange of abuses was taking place between Bharat Singh Appellant and Sheodan Singh co-accused on the one hand and the complainant''s party on the other over the rounding up of the cattle of Bharat Singh Appellant by the complainant''s party for taking them to the cattle-pound, Hori Lal and Ram Sanehi Appellants brought their guns and fired at the complainant''s party causing gunshot injuries to Bhoop Singh (deceased), Netrapal (P.W. 2), Baljit (P.W. 3) and Kaptan. It may also be mentioned that the statements of the eye-witnesses that Ram Sanehi Appellant fired at Bhoop Singh (deceased) causing gunshot injuries to him and Hori Lal Appellant fired twice causing gunshot injuries to Netrapal (P.W. 2), Baljit (P.W. 3) and Kaptan cannot also be accepted as this was neither stated in the first information report nor in the statements of the witnesses made to the investigating officer u/s 161 Code of Criminal Procedure and it appears to have been stated by them for the first time in the trial Court.

The question that, however, remains to be considered is whether Ram Sanehi and Hori Lal Appellants can be held guilty of any offence for causing gunshot injuries to Bhoop Singh (deceased) Netrapal (P.W. 2), Baljit (P.W. 3) and Kaptan.

It has been stated by Chandrapal (P.W. 1) in the first information report and in his statement made to the investigating officer u/s 161 Code of Criminal Procedure that the cattle of Bharat Singh Appellant had reached their enclosures when they were being rounded up by the complainant''s party for being taken to the cattle-pound. This was also stated by Netrapal (P.W. 2) and Baljit (P.W. 3) in their statements recorded by the investigating officer and it was admitted by Chandrapal (P.W. 1) that there are only four houses in village Nagla Pokhi which belong to the Appellants and their relations and the cattle had reached Nagla Pokhi when they were being rounded up by the complainant''s party. In these circumstances, it appears that the cattle of Bharat Singh Appellant had reached their Gher (enclosure) in Nagla Pokhi and were being rounded up by the complainant''s party at the time of the incident.

Section 10 of the Cattle Trespass Act, 1871 runs as follows:

Cattle damaging land.- The cultivator or occupier of any land,

or any person who has advanced cash for the cultivation of the crop or produce on any land,

or the vendee or mortgagee of such crop or produce, or any part thereof,

may seize or cause to be seized any cattle trespassing on such land, and doing damage thereto or to any crop or produce thereon, and send them or cause them to be sent within twentyfour hours to the pound established for the village in which the land is situate.

Police to aid seizures-All officers of police shall, when required, aid in preventing (a) resistance to such seizures and (b) rescues from persons making such seizures.

It has been held in Jiwana v. Emperor AIR 1947 Lah. 380:

In order to cover the act of the owner or occupier of a field who pursues a trespassing animal and captures it outside the field which has been damaged, the words "cattle trespassing on such land" have to be given an extended meaning and such an expression must be confined within reasonable limits. I do not think that the words can be stretched to cover the circumstances of the present case. At the most, the act of seizure may be within Section 10, Cattle Trespass Act, if it is effected at a spot within easy reach of the field damaged, but in this case the distance is very great, and moreover the cattle had already come, not merely constructively but actually, within their owners'' possession. It follows from this that in seizing and attempting to remove the animals, the act of Mammu and his brothers was not only not covered by Section 10 Cattle Trespass Act, but it also amounted technically to an offence of theft within the meaning of Section 378, Penal Code. Consequently, the owners of the animals were entitled u/s 104, Penal Code, to use force to any extent short of causing death in order to prevent Mammu and his brothers, from carrying out their purpose.

It has been held in AIR 1934 258 (Nagpur) :

No doubt the right of capture of the cattle would not extend to following them to their sheds and seizing them from there...

In our opinion, the right to seize cattle given to the cultivator or occupier of land u/s 10 of the Cattle Trespass Act does not extend to seizing the cattle which were trespassing and causing damage to the land after they had escaped while they were being taken to the cattle-pound and had reached their enclosure (Gher) and had come in possession of their owners. The complainant''s party was, therefore, guilty u/s 379 IPC in rounding up the cattle from the enclosure (Gher) of the Appellants and the Appellants could cause any injury short of death to the complainant''s party in the exercise of the right of private defence of property. In the present case, as it is not established as to whether Ram Sanehi Appellant or Hori Lal Appellant caused the gunshot injuries to the deceased which resulted in his death, none of these two Appellants can be held guilty of exceeding the right of private defence. The result, therefore, is that neither of these two Appellants can be held guilty u/s 302 IPC.

The prosecution has thus failed to establish the guilt of the Appellants under any of the Sections under which they have been convicted by the trial Court.

This appeal is accordingly allowed and the conviction and sentences of the Appellants are set aside.

All the Appellants are on bail. They need not surrender. Their bail bonds are discharged.