Gopal Lal Gupta, J.
1. Through the aforesaid two appeals appellant Govind Singh challenges his conviction and sentence of life imprisonment under Section 302, I.P.C. two years R. I. and a fine of Rs. 300 under Section 325, I.P.C. and one year R. I. and a fine of Rs. 100/- under Section 324, I.P.C. recorded by the learned Additional Sessions Judge, Pratapgarh vide his judgment D/- 10-6-1980.
2. Since both the appeals arise out of the same judgment they are being disposed of by this common judgment.
3. On 11 -8-1979 at 4 p.m. Pratap Singh lodged oral report (Ex. P/l) with Police Station Bhim stating therein the occurrence which took place between 10.30 a.m. to 11.30 a.m. on that day. It was stated that he along with his father Arjun Singh and brother Inder Singh had gone to their field known as 'Retiyavala' to watch the crop where they found that cows, bullocks, buffaloes and goats were grazing the crop. They also saw Govind Singh sitting at the hillock at some distance. It was further stated that they collected cattle and proceeded towards the cattle pound, but after they crossed the distance of about one mile, accused Govind Singh, Bheru Singh and Lal Singh armed with lathies and axe reached there and wanted the cattle to be released. On their insistence that they would take the cattle to cattle pound the accused started beating them and as a result of the injuries sustained by Arjun Singh at the hands of Govind Singh he fell down. When Arjun Singh was being taken to the hospital he died in the way. On this report a case under Sections 302, 307, 324, 323 read with Section 34, I.P.C. was registered. The police conducted usual investigation. After the completion of the investigation a challan was submitted.
4. Charges under Section 302 read with Sections 34, 307, 326, 324 and 323/34, I.P.C. were framed against all the three accused. A charge under Section 302, I. P. C. was also framed against accused Govind Singh. They pleaded not guilty and claimed to be tried. The prosecution examined P. W. 1 Pratap Singh, P. W. 2 Sujan Singh, P. W. 3 Mithalal, P. W. 4 Deep Singh, P. W. 5 Dr. Akshaysingh Chouhan, P. W. 6 Koop Singh Rawat, P. W. 7 Inder Singh, P. W. 8 Khem Singh, P. W. 9 Girdhari Singh, P. W. 10 Hamir Singh and P. W. 11 Chandra Prakash. Accused in their statements recorded under Section 313, Cr. P. C. stated that the witnesses have given false statements. Lal Singh and Bheru Singh pleaded that they were not at the place of occurrence. The defence set up by accused Govind Singh was that he was grazing his cattle in the 'Charagah' where Arjun Singh, Pratap Singh and Inder Singh came to take his cattle. He objected to it and when Arjun Singh, Pratap Singh and Inder Singh started wielding 'lathies', he snatched the axe from the hands of Inder Singh and waived it. He denied that he caused any injury to any of the person deliberately. Accused did no! examine any person in defence. The learned Sessions Judge found that accused Govind Singh had caused fatal blow to Arjun Singh and thereby he committed offence under Section 302, I. P. C. He further found that accused Govind Singh also caused grievous hurt to Inder Singh and Pratap Singh and, therefore, he has also committed offences under Sections 325 and 324, I.P.C. He held that accused Bheru Singh and Lal Singh had committed offence under Section 323, I.P.C. only. He instead of sentencing accused Bheru Singh and Lal Singh ordered their release on probation. He did not find that the three accused had common intention of causing injuries to the victims.
5. Mr. Mathur, learned counsel for the appellant vehemently contended that the learned Sessions Judge has committed error in convicting the appellant under Section 302, I.P.C. According to him the complainant party had no right to take the cattle of the accused from the 'Charagah' and as their act of taking cattle amounted to theft, accused Govind Singh had every right to rescue the cattle even by using force. According to him the accused had the right of private defence to save his property from theft and, therefore, he could not be convicted.
6. Mr. Mehta, learned Public Prosecutor on the other hand has fried to support the judgment of the trial Court. His further submission was that in any case the accused had exceeded the right of private defence.
7. We have given the matter our thoughtful consideration.
8. Dr. A. S. Chouhan, P. W. 5 had performed post mortem of the body of Arjun Singh; He has deposed that Arjun Singh had the following three injuries on his person and the injuries were ante mortem in nature :-
1. Incise wound 4' x 1 1/2' x 1' upto soft tissue on Rt. parietal region scap.
2. Haemotoma 4' x 1 1/2' on Rt. parietal and temporal region.
3. # of Rt. Parietal and part of frontal bone. According to him Arjun Singh had died of syncope which was due to haemorrhage and shock caused by the head injury. He has further deposed that the injuries were sufficient in the ordinary course of nature to cause death. According to him all the three injuries were caused by one blow and were caused by sharp edged weapon. There is no reason to disbelieve the Doctor. It is fully established that Arjun Singh had suffered injury on his head and he had died of this injury.
9. By the statement of Dr. Chouhan, P. W. 5 it is further established that on 11-8-79, Inder Singh and Pratap Singh had suffered the following injuries :-
Inder Singh
1. Lacerated wound 2' x 1/4' x deep up to bone
2. Bruise horizontal swelling below Inp angle of shoulder 6' x 1' x 1' x 1'.
3. Bruise vertical 6' x 2'
4. Swelling 1' x 1' left knee joint below pakla bone.
5. Incise wound 1' x 1/2' x 1/6' back of right fore arm below elbow joint.
Pratap Singh
1. Lacerated wound 1' x 1/8' x 1/6' occipital region
2. Bruise swelling oblique 6' x 1' back of right shoulder.
3. Bruise oblique 6 1/2' x 1'. According to him injuries No. 2 of Inder Singh and injury No. 2 of Pratap Singh were found to be of grievous nature by radiological examination.
10. The prosecution case was that the cattle belonging to the accused persons were grazing in the field of the complainant party and, therefore, Pratap Singh and others were taking cattle to the cattle pound.
11. A right of taking the cattle to the cattle pound has been given by Section 10 of the Cattle Trespass Act, 1871. Such a right has been given to the cultivator or occupier of any land when any cattle trespasses of and causes damage to the crop or produce. It will be proper if we read Section 10 which runs as follows :-
10. 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 twenty-four hours) to the pound established for the village in which the land is situate.
12. A reading of the above section makes it clear that only in the circumstances that the cattle enters the agricultural field and causes damage to the crop or produce, the cultivator or the occupier of the land can seize the cattle and take it away to the cattle pound.
13. The crucial question for determination in this appeal is whether the prosecution has been able to establish that the cattle belonging to the accused had entered the agricultural field of the complainant party and had caused damage to the crop. P.W. 1 Pratap Singh and P.W.7 Inder Singh have deposed that when they had gone to their field they found that the cattle were grazing in their field. It has further come in the statement of Pratap Singh that when the S. H. O. came he had shown to him the damage caused to crop and that the S. H. O. had also prepared a memo to that effect. However, the prosecution has not produced that inspection memo, for the reasons best known to it. Ft cannot be denied that the site inspection memo prepared by the S. H. O. regarding the damage in the crop was the most important piece of evidence in the case. The withholding of the important documentary evidence goes to show that the S.H.O. had not found signs of grazing in the field. It appears that even the foot marks of the cattle were not found. By the non-production of this important piece of evidence the defence is justified in contending that a presumption should be raised that there was no damage to the crop and even there was no evidence that the cattle had entered the field of the complainant party.
14. The defence case from the very beginning has been that the accused was grazing his cattle in the 'Charagah'. In view of the fact that no convincing evidence has been produced that the cattle belonging to the accused had entered the field of the complainant party it has to be accepted that the defence version in this regard is correct. It is also relevant to state here that according to Pratap Singh the accused used to graze their cattle daily in the 'Charagah'. There could not be, therefore, any occasion on that day to put the cattle in the field of the complainant party.
15. The fact that the complainant party had seized the cattle from their field, cannot be believed for one more reason. According to Pratap Singh when the cattle were seized from his field the three accused persons were seeing them standing outside his field. It has thus come in the statements of Pratap Singh and Inder Singh that the accused had attempted the release of their cattle one mile away from their field. There were three accused persons when the cattle were taken out from the field of Pratap Singh. It cannot be believed that they would allow the complainant party and the cattle to move up to the distance of one mile. They could very well obstruct the way of the members of the complainant party then and there. As the occurrence had taken place one mile away from the field of the complainant party, it has to be inferred that the cattle was not seized from the field of the complainant party but was taken from the grazing ground. When accused persons said that the cattle was being taken they went there for the release of the cattle. It is significant to point out that it has come in the statement of Pratap Singh that where the occurrence of the beatings took place, Khem Singh was grazing his goats. This fact further goes to show that the occurrence of beating took place near the place of grazing. By this, it can only be inferred that the complainant party had seized the cattle from the grazing ground and not from their agricultural field.
16. Once we come to the conclusion that: the cattle was not seized from the field of the complainant party and it was taken from the grazing ground it will have to be accepted that the complainant party had committed the offence of theft defined under Section 378, I.P.C. The taking of the cattle which had not caused damage to the crop in the field of the complainant party, to the cattle pound without the consent of the owner would in our opinion amount to theft even though the person taking them may not have the intention of having any wrongful gain to himself, since such taking amounts to deprivation of cattle to the owner which would be considered as dishonest act. It is consequently wrongful loss to the owner.
17. This Court in the case of Maide Khan v. State, 1964 Raj LW 627 : (1965 (1) Cri LJ 476) had occasion to consider the question of right of seizure of cattle under Section 10 of the Cattle Trespass Act and after discussing the various authorities held that if the cattle had not trespassed and caused damage to the crop, its taking away to the cattle pound would amount to the offence of theft. It is not material that the accused had not intended to cause permanent wrongful loss to the complainant party.
18. The Hon'ble Apex Court in the ease of Pyarelal Bhargava v. State of Rajasthan, AIR 1963 SC 1094: (1963(2) Cri LJ 178) has held that the loss need not be caused by a permanent deprivation of property but may be caused even by temporary dispossession. It has been further held that a temporary period of deprivation or dispossession of the property of another causes loss to the other and the person will act dishonestly if he temporarily dispossessed another of his property. In view of what we have discussed above it has to be found that the act of the taking of the cattle by the complainant party from the grazing ground amounted to theft defined under Section 378, I.P.C.
19. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence. Under Section 97 every person has a right to defend his property against any act which is an offence falling under the offence of theft. Section 103, I. P. C gives a right of private defence of property even to the voluntary causing of death if the offence committing of which amounts to theft. However, there are certain pre conditions for claiming such extended right. We now read relevant part of Section 103, I.P.C. :-
103. When the right of private defence of property extends to causing death - The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely :-
First....
Secondly....
Thirdly....
Fourthly - Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
20. Clause Fourth means that when the act which amounts to theft, mischief or house trespass is such as per se to cause a reasonable apprehension that death or grievous hurt will be the result, then the causing of death in order to prevent the commission of such act is justified.
21. The facts of the present case indicate that on seeing that the members of the complainant party were taking cattle the appellant and two other accused went there armed with weapons and they attempted the release of then cattle and when the complainant party did not release the cattle they inflicted blows. The prosecution has examined three witnesses to prove the occurrence of beating. They are P.W. 1 Pratap Singh, P.W. 7 Inder Singh and P.W. 8 Khem Singh. Ail the three witnesses have deposed that the accused Govind Singh had an axe in his hand and he first attacked Pratap Singh and thereafter he caused blow to Arjun Singh. The defence case is that he was unarmed and that Khem Singh had an axe with him which was given to Inder Singh and he thereafter snatched the same from Inder Singh and defended himself. Thus, the accused has pleaded right of private defence on two counts. First, for the release of the cattle and second, to defend his person.
22. Section 105 of the Indian Penal Code provides that right of private defence of property commences when reasonable apprehension of danger to the property commences and the right of private defence of property continues till the offender has effected his retreat with the property. The retreat completes when the property is taken to the destination by the thieves. So long the property is on way, it cannot be said that the retreat had effected. Thus when the cattle was being taken in the way the accused had certainly a right of private defence of property.
23. In order to gel the property released the accused could cause any harm to the members of the complainant party other than death: see Section 104 of the Indian Penal Code.
24. As regards the right of defence to person it has to be accepted that the accused has not been able to establish such right. The accused had sustained no injury though according to him the members of the complainant party had started weilding lathies. The witnesses have deposed that they did not have lathies in their hands. They have emphatically denied that Khem Singh had axe with him and it was given to Inder Singh. There is no evidence led by the accused in this regard. As such the defence version that accused had snatched axe from Inder Singh cannot be believed.
It is an admitted fact that accused had desired from the members of the complainant party to release the cattle and when they insisted that they would take the cattle to the cattle pound the accused caused injury. He took precaution in using the reverse side of the axe when he caused blow to Pratap Singh and Inder Singh. However, it appears that seeing the mood of the complainant party that that they would not release the cattle he dealt axe blow from the sharp side to Arjun Singh. It is significant to point out that he did not repeat the blow. In these circumstances it can certainly be said that the accused had not intended to cause the death of Arjun Singh. His intention was only to get the cattle released and for that purpose, he had caused injury to Arjun Singh. In these circumstances, it has to be found that the accused had not committed the offence of murder. In our opinion his act amounts to culpable homicide not amounting to murder. It is a clear case of exceeding the right of private defence. The injury caused was not intended injury. The accused did not repeat the blow. In the circumstances that the accused had caused injury without any intention to cause death, only it can be found that he had the knowledge that the injury might result into death.
25. At the same time it has to be accepted that when the accused caused blows from the reverse side of axe to Pratap Singh and Inder Singh he did so in the exercise of right of private defence to property.
26. As a result of the above discussion we come to the conclusion that accused Govind Singh was justified in causing injuries to Pratap Singh and Inder Singh and he cannot be convicted Under Section 325 or 324, IPC. He is however guilty as he caused culpable homicide not amounting to murder when he gave blow to Arjun Singh which proved fatal.
27. The result, therefore, is this that this appeal is partly allowed. The appellant is acquitted of the offence under Sections 325, 324 and 302, IPC. Instead he is convicted under Section 304, Part-II, IPC. Appellant Govind Singh has already undergone imprisonment for more than one year. Keeping in view the peculiar facts and circumstances of the case and also that the occurrence had taken place some 16 years back we do not think it proper 10 send him to prison again. We think that the sentence of imprisonment already undergone by him will meet the ends of justice. We further deem it proper to enhance the amount of line. A sentence of fine of Rs. 15,000/- in addition to imprisonment already undergone shall meet the ends of justice. The fine shall be deposited within one month. On depositing the fine by the appellant, the same shall be given to the L.Rs. of the deceased. In default of payment of fine the appellant shall undergo rigorous imprisonment for three years.