A. Misra, J.
1. Petitioners Nos. 1 and G have been convicted under Section 323 I. P. C. and the other petitioners under Section 323/109 I. P. C. and each of them sentenced to pay a fine of Rs. 30/- and in default, to undergo S. I. for ten days.
2. In short, complainant's case, is that on 16-10-64 while P. Ws. 2 and 3 were taking some cattle belonging to petitioners to the pound alleging that they had damaged paddy crops in some field of Baligorada village, petitioner No. 1 assaulted P. W. 2 and threatened P. W. 3 when he intervened. The complainant (P. W. 1) tried to intervene, but was assaulted by petitioner No. 6. Thereafter, petitioners rescued and took away their cattle. Petitioners in defence deny to have assaulted P. W. 1 or P. W. 2. According to them, P. W. 1 and his villagers seized their cattle which were grazing on a waste land and when petitioner No. 1 protested, P. W. 1 rushed to assault him with a tangia. Petitioner No. 1 managed to snatch away the tangia and thereafter left the place, while petitioners drove away their cattle. The other petitioners deny to have been present at the time of occurrence.
3. The learned Magistrate who tried the case accepted P. W. 1's version about the occurrence and the place where it is said to have taken place and found that petitioners Nos. 6 and 1 committed assault on P. Ws. 1 and 2 respectively. He accordingly convicted them under Section 323 I. P. C. So far as the other petitioners are concerned, he found them guilty of abetment and convicted them under Section 323/109 I. P. C.
4. Learned counsel for petitioners has assailed the convictions mainly on two grounds. Firstly, it is contended that the conviction of petitioners 2 to 5 who were accused Nos. 3 to 6 Under Section 323/109, I. P. C. is not maintainable as no specific charge was framed for abetment against them and they had no notice of such a charge. The second contention is that the conviction of petitioners Nos. 1 and 6 Under Section 323, I. P. C. is not maintainable, because the seizure of the cattle was illegal and they in exercise of their right of private defence of property were entitled to use force to rescue their cattle from such illegal seizure.
5. The aforementioned first contention, in my opinion has considerable force. It is not disputed that all the petitioners were charged with the substantive offence Under Section 323 I. P. C. and no separate charge for abetment was framed against jany of them. It is no doubt true that as a general rule it cannot be laid down that a person charged for the substantiveoffence can in no circumstances be convicted for abetment of the same. The position seems to be fairly well settled that where a case is covered Under Sections 236 and 237, Cr. P. C. and the accused had notice of all the facts which go to make up the charge of abetment, he can be convicted for such abetment, even in cases where the charge framed against him is only for the substantive offence. On the other hand, if in a given case, it is found that the accused had no notice of the facts constituting abetment, and as such, had no chance of meeting such a case, a conviction for abetment will not be justified when he is charged with the substantive offence.
6. In this case, it is conceded by learned counsel for opposite party that facts constituting abetment by any of the petitioners are not mentioned in the complaint petition nor in their examination Under Section 342, Cr. P. C., such facts have been put to petitioners Nos. 2 to 5. As clearly stated, there is no specific charge of abetment. There is hardly any evidence on the prosecution side that petitioners Nos. 2 to 5 instigated or intentionally offered any aid by any act or omission for the commission of the assault by the other two petitioners. Thus, in the circumstances proved in this case, it cannot be said that petitioners Nos. 2 to 5 had any notice of facts which would constitute the accusation of abetment by them. As such, it cannot be said that they had any opportunity to defend themselves against such a charge. Therefore, the conviction of petitioners Nos. 2 to 5 for abetment under Section 323/109 I. P. C. is not sus-tainable and must be set aside.
7. Coming to the conviction of petitioners Nos. 1 and 6 under Section 323 I. P. C., learned counsel for petitioners refers to Section 10 of the Cattle Trespass Act and contends that the seizure of the cattle was illegal as P. W. 2 was not the cultivator or occupier of the land and there is no proof that the cattle had actually damaged the paddy crop. Reliance is placed on a decision of this Court reported in AIR 1963 Orissa 52, Lokenath v. Rahas Beura in support of the contention that the owner is entitled to rescue his cattle against illegal seizure even by use of force. In the aforementioned decision, it was observed :--
'Illegal seizure of cattle with a view to impound them is theft because though the person who has seized animals had no intention to cause wrongful gain to himself nevertheless his intention was to cause wrongful loss to the owner of the animals. In such a case, the owner of the cattle has a right to exercise the right of private defence of property in rescuing them.'
If the aforesaid observations are accepted as laying down the correct position of law, the necessity of considering whether the seizure in this particular case was legal or illegal would not have arisen.
In view of the decision reported in AIR 1965 SC 926, Ramratan v. State of Bihar, the above observations cannot be accepted as laying down the correct position of law. The Supreme Court in the aforementioned decision observed :--
'When a person seizes cattle on the ground that they were trespassing on his land and causing damage to his crop or produce and gives out that he was taking them to the pound, he commits no offence of theft however mistaken he may be about his right to that land or crop. The remedy of the owner of the cattle so seized is to take action under Section 20 of the Act. He has no right to use force to rescue the cattle so seized.'
In the present case, rightly or wrongly P. Ws. 2 and 3 were admittedly taking the cattle to the pound giving out that the cattle had trespassed into and damaged the crop. This fact is not disputed. P. W. 2 seized the cattle in his capacity as watcher appointed by the villagers including the owner of the land into which the cattle are said to have trespassed to guard the crops. In such circumstances, even assuming that he was mistaken about his right to seize, as has been observed by the Supreme Court, his action will not amount to an offence of theft and the remedy of the owner was only to take action under Section 20 of the Act. No right to use force to rescue the cattle is available to the owner. Therefore, the contention of learned counsel, so far as petitioners Nos. 1 and 6 are concerned, has no merit and has to be rejected.
8. In the result, the revision is allowed in part. The conviction and sentence of petitioners Narayan Samal, Bhikari Ch. Samal, Ugrasen Samal and Sudarsan Samal Under Section 323/109 I. P. C. are set aside and they be acquitted of the charge. The conviction and sentence of petitioners Prasanna Kumar Samal and Dibakar Samal are confirmed.