1. The Government of Bombay have appealed against the acquittal by the Sessions Judge of Ahmedabad of two men who were originally convicted by the First Class Magistrate of Nadiad for mischief under Section 427 of the Indian Penal Code, and also under Section 26 of the Cattle Trespass Act. The facts broadly are these. One day cattle belonging to the two accused were found in the Nadiad Association Farm, and they did on that occasion damage, which is estimated at more than Rs. 200, to the growing crops. This farm had been troubled on previous occasions by trespassing cattle and damage had also been done and as the Farm Overseer tells us some of the cattle that came on to the farm on the particular occasion we are concerned with, were the same which had previously damaged the crops at the farm. On the previous occasions apparently the farm people had failed to seize the cattle but on this particular occasion--it was the 26th November 1917--they seized and took them to the pound. About these facts there is no doubt whatever. The two accused are the owners of the cattle and are Rabaris. There are two theories in this case: one is the theory of the Prosecution and the other that of the defence. The Prosecution says that the accused, the owners of the cattle, habitually allowed them to stray in order that they might feed on the growing crops of others. The alternative defence theory is that there was no such intension or purpose but that the cattle owners or Rabaris were not quite as careful as perhaps they ought to be, and consequently this unfortunate result happened. Now if it is established that the Rabaris did habitually and deliberately permit their cattle to stray in order that they might graze on the crops of others, then any given instance of such straying cannot, as a matter of common sense and ordinary reason, be regarded merely as a case of negligence. Equally clearly any such case falls within the definition in Section 425 of the Indian Penal Code and within Section 26 of the Cattle Trespass Act. As regards the latter section, I may mention here that the Sessions Judge in appeal fell into an error in supposing that the operation of this section had not, in the Nadiad Taluka, been extended to the case of cattle. The Government Pleader has pointed out to us that in fact it has been so extended, and this will appear from the Notification No. 4069 dated 24th November published at page 968, Part I of the Bombay Government Gazette, 1891. Now, as I said, if these cattle were habitually and intentionally so conducted or driven as to result in their grazing on other peoples' crops, then the offences charged would be proved. The question before us, therefore, is not a question of law at all, but a question of fact. Are we justified in inferring or compelled to infer from the circumstances proved in the case that these Rabaris deliberately and designedly permitted their cattle to graze on the crops of others? The circumstances established are not only those which I have already mentioned. There are these further facts: The cattle of these two accused have been impounded between the 1st of April 1917 and 1st January 1918,85 times in the case of the first accused, and 94 times in the case of second. In a great majority of these cases they were impounded not by public servants but by private persons. Where these impounding were by private persons, the inference is that they were made because the cattle had done damage to the crops of those persons. I think when facts such as these are established--and they are established in this case--one is driven to the conclusion that these Rabaris did designedly contrive that their cattle should graze on other peoples' crops. I really cannot myself find any other rational explanation of the matter. To me it seems to be futile to talk of nothing worse than negligence. I think any ordinary reasonable man would in all probability infer an undoubted and deliberately mischievous intention and that is what I do infer. The defence evidence is entirely unconvincing. The defences say that the Rabaris' cattle strayed when taken to their grazing lands. But the straying was too persistent for this explanation to account for it in a way satisfactory to what I conceive to be the average mind. Therefore, the prosecution have made out a clear intention in the accused to have their cattle graze on crops at the expense of the farmers. This in my opinion clearly falls within the definition of mischief in Section 425, Indian Penal Code, and equally within the intention of Section 26 of the Cattle Trespass Act.
2. When the matter went in appeal before the Sessions Judge, he acquitted the accused partly because he made a mistake as to the application of Section 26 of the Cattle Trespass Act and partly because he thought that no more than negligence should be the inference from the circumstances. It is clear from what I have said that this is, in my opinion, a mistaken conclusion.
3. We agree that these two men must be convicted of offences under Section 427, Indian Penal Code and Section 26 of the Cattle Trespass Act and that they should both of them undergo rigorous imprisonment for three months in each case and that the order as to fines should remain as in the judgment of the First Class Magistrate.
4. I concur. I consider that criminal intention has been completely proved by the previous 85 occasions in which the cattle of accused No. 1 and the 94 occasions in which the cattle of accused No. 2 had been impounded for trespass during the preceding ten months. The impounding were mostly by private persons who could only have impounded cattle for straying upon, and doing damage to, their lands under Section 10 of the Cattle Trespass Act. When the question is whether an act was accidental or intentional a series of similar occurrences are relevant under Section 15 of the Indian Evidence Act. It is not essential to prove an act but is sufficient to show an omission such as the omission to take due care of cattle to constitute the offence of causing mischief by reason of the provisions of Section 32 of the Indian Penal Code. It is again not necessary to prove that the accused directly intended the mischief caused or that it was inevitable as stated by the learned Sessions Judge, It is sufficient to show that the accused knew it was likely that the mischief would result as expressly prescribed in Sections 425 and 427 of the Indian Penal Code. Deterrent sentences are, in my opinion, necessary in view of the remarks regarding the seriousness of such offences made in the judgment by the learned Sessions Judge.