In Re: Muthuswami Goundan and Others

Ramaswami, J.—This is a criminal revision case filed against the conviction and sentence of the City First Class Magistrate, Coimbatore, in

Crl. Ap. No. 19 of 1951 confirming the conviction and sentence of the learned Stationary Sub Magistrate, Erode, in C. C. No. 159 of 1950.

The facts are brief: There has been ill-feeling between the complainant in this case and the accused and this ill-feeling seems to have spread from

the masters to their Quadrupeds. There was an impounding of the cattle of the complainant by the accused one fort-night before this alleged

occurrence and the complainant had to pay money for releasing the cattle. One fortnight thereafter the complainant has launched this case on the

ground that a horse belonging to the accused grazed in a six acre field of his cultivated with cholam and horse-gram. The crop of horse-gram is

specifically mentioned as having been in flower and grown to a height of one foot. The horse was said to have been taken to the pound and the

case is that in transit it was forcibly rescued by the accused.

Both the courts below have believed the rescue and have convicted the petitioners u/s 24, Cattle Trespass Act, as well as u/s 143, I. P. C., and

sentenced them to fine''s totalling to Rs. 50 in the case of each petitioner.

The point taken before me is two-fold, namely, one of law and one of fact. So far as the point of law is concerned the contention of the learned

advocate for the petitioners is that there is no specific finding in the order of the lower court showing that the horse which was seized has been

shown to have done damage to the land or to any crop or produce thereon and that mere trespass even if true, would not amount to an offence u/s

It is quite true that only cattle liable to be seized u/s 10 if rescued there would be an offence u/s 24 and so the offence u/s 10 should be made

out. There is no specific finding to that effect; and it would certainly have been better if the minds of the parties had been specifically directed to this

aspect of the case and a categorical finding given. But the absence of a specific finding would not entitle the accused to an acquittal if it can be

reasonably inferred from the evidence in the case. The absence of such a finding would at the worst be a curable irregularity.

In this case there is some evidence that the horse was grazing and that there must have been damage to the horse-gram crop. It stands to

commonsense that this offending horse would Hot have gone to the field merely for the purpose of ""taking the air"" (Hawa-Khana) but that it would

have been attracted there by the rich fodder therein waiting to be cropped up and munched. It may be safely presumed that some nominal damage

must have been caused in the circumstances of the case by the grazing of the horse and in coming to such a conclusion we are fortified by the

decision in - ''Faiyaz Khan v. Rex'', AIR 1949 All 180 (A) of the Allahabad High Court. It was found in fairly similar circumstances that where the

cattle trespassed into a rich sugar crop field we can presume that they did some nominal damage to the crops standing on the field. The relevant

extract is,

It is true that Ammi Khan (in this case P. W. 1) has merely stated that he saw some cattle in our sugarcane field (in this case horse-gram) and has

omitted to state that the cattle did any damage to the crop. If cattle enter a field full of crop, damage may be presumed. It should be remembered

that damage required u/s 10, Cattle Trespass Act, is not necessarily substantial damage. It may be nominal damage when cattle enter into a field in

which sugarcane crop is standing. They will naturally trample upon or waste, or graze some of the crop. The presumption, therefore, is that the

cattle did in fact cause-Some damage.

It was further pointed out that it should be remembered that damage required u/s 10 of the Act is not necessarily substantial damage but that it may

be nominal damage.

If the matter had really stood there I would not have been disposed to interfere but in this case on the facts I find there are no good grounds

whatsoever to believe the grazing by the horse because it is rested upon the testimony of P. W. 1 who admittedly bears ill feeling towards the

accused and his evidence is not in any way corroborated. In fact we find that he has made a statement in cross-examination which throws

considerable light about what he stated in the examination-in-chief about the grazing and ''ergo'' causing of damage. Therefore it is certainly not

beyond the bounds of possibility, in this case that the horse of the accused which might have strayed towards his field might have been caught and

dubbed as the culprit which grazed and taken to the pound in order to wreak vengeance and as tit for tat. (pace the previous incident). The

judgment of the court below does not show that it was very much impressed with the demeanour of P. W. 1, so that we can say that

notwithstanding the infirmities in the evidence it should be accepted. Therefore in these circumstances it seems to me that there is reasonable doubt

whether this horse grazed at all in the field in question and whether all this fuss was not due to the previous incident. Therefore, as the conviction of

the learned Magistrate in the court below seems to be based upon unacceptable evidence and which can be legitimately described as no evidence

at all it cannot be supported. The conviction and sentences are hereby set aside and the fine amounts if collected will be refunded to the petitioners.