Durga Singh and Others vs Emperor

Ross, J.—This is an application by six persons who have been convicted of offences under Sections 147, 380 and 448 of the Indian Penal Code and have been sentenced to a fine of Rs. 100 each u/s 147 and to two months'' rigorous imprisonment and & fine of Rs. 25 each u/s 380, Indian Penal Code. The occurrence took place on the 24th of April 1922. A cow was being slaughtered in the house of one Tetar, the son of Mt. Kariman, to be used at a marriage feast at the house of Somar Jolaha the next morning.

The case for the prosecution was, that about a hundred Babhans, including the petitioners, came into the house in a threatening manner and removed the carcass of the cow which had been slaughtered and assaulted Kariman and took away some ornaments and clothes. The defence was, that the cow belonged to Durga Singh; that it had been grazing with the other cows and did not return; it was ascertained that it was being killed in the house of Somar and the petitioners went there and found that it had already been slaughtered and so they took away the carcass and the instruments that had been used and produced them before the Court. A Sanaha was lodged before the Police at 2 A. Mon the 25th by the Chowkidar of Nawadah which referred to the cow as Somar Jolaha''s. On the same date two petitions of complaint were lodged before the Magistrate, one by Somar and the other by Durga Singh. There was no mention of any injury to Kariman nor of any theft of her clothes and ornaments. On* the 4tb of May 1922 the Magistrate came to the village to enquire into another case and made enquiry into this case also. Mt. Kariman then firt told him that she had received injury from Durga and that her clothes and ornaments had been taken away, Her statement was that she had gone to the house of one Idan and on her return did not find the articles. On the 10th of May she was examined by a Doctor who found some old marks of injury. It may be observed that the value of the cow, according to Somar, was Rs. 8-4-0. The conviction by the Magistrate was upheld in appeal by the District Magistrate except in the case of one accused who was acquitted. The sentence was also upheld.

The first ground urged in this application is, that the judgment of the Court of Appeal is not according to law, because the learned District Magistrate has not discussed the evidence of the ownership of the cow although he has stated that this is the chief point in the case; that the accused are entitled to find the evidence of their guilt in the appellate judgment; that it must be taken that, the Court did not direct its judicial attention to the evidence; and that the facts which have been relied upon are no foundation for the conviction. The learned District Magistrate has not discussed the evidence but he has relied on certain facts which, in his opinion, conclusively proved Soman''s ownership of the Cow. These facts are that Somar''s ownership was mentioned in the Sanaha lodged within six hours of the occurrence; that in hi petition of complaint Somar gave the name of the man he had bought it from, whereas, on the other side, Durga Singh gave no details in his petition of the 25th of April 1922 and did no examine any of the witnesses named in that petition to prove his ownership. Besides these facts, he relied upon the improbability that Jolahas could steal a cow belonging to the Rabhans of their own village in order to kill it. All that Section 367 requires is that the point for determination should be stated, the decision thereon and the reasons for the decision. It cannot be assumed that because the District Magistrate has not referred to the oral evidence, but has drawn inferences from documents and from probabilities, therefore he has not considered the evidence. He has given what to my mind are, strong and legal reasons for his conclusion and I see no reason to say that his judgment is defective on that point.

In the second place it is urged that the District Magistrate has said nothing about the hurt to Kariman or about the clothes and ornaments. This is an altogether insignificant part of the case arid there is no very clear finding even by the Trying Magistrate with regard to it. The case is essentially a case of taking away a cow from the house where it had been killed. The other details may be exaggeration or may not, but in any Case they are quite insignificant. In the third place, reference is made to the fact that no marriage has actually taken place in Somar''s house. This fact has been found by the learned Magistrate and discussed by him and I sea no reason in this for disbelieving the complainant''s case. I do not see that the judgment of the Appellate Court is defective because it has not mentioned this fact which has no direst bearing on the occurrence itself.

Finally, it is argued, and I think with much more force, that the sentences are out of all proportion to the gravity of the offence. What happened was that a cow of insignificant value had been slaughtered in the house of a Mohomedan and some Bhabans whose religious feelings had been offended went and removed the carcass. This was an act of oppression which must be punished with a proper sentence. But the sentence which has been passed is, in my opinion, much too severe, and I would reduce the sentence of imprisonment to the term already undergone and the fine to a sum of Rs. 50, in default fourteen days'' rigorous imprisonment, in the case of each of the petitioners. The order of compensation will stand.