1. This is an appeal filed by the State against the acquittal by a Special Magistrate at Ambala of the five respondents Teja Singh, his sons Gurnam Singh, Kirpal Singh and Gurmukh Singh, and Arjan Singh who were tried on charges under Sections 148 and 324, 325 and 307 read with 149, Indian Penal Code,
2. The prosecution case was that Lachhman Singh P. W. 1, who had been appointed by the Panchayat of Mohri to keep guard over the whole of the fields of the village, found seven buffaloes belonging to Teja Singh accused grazing in the paddy field of Mihan Singh P. W. 3 on the evening of 18-8-1954. He rounded up the cattle and! eet off to take them to Sundar Singh, the Sar-panch of the village followed by Mihan Singh the owner of the land on which the trespass had been committed who happened to be in the vicinity himself.
When they had gone for about a mile from the paddy field going towards the village they were confronted by the five accused armed with various weapons. Teja Singh asked Lachhman. Singh where he was taking the buffaloes to - which Lachhman Singh replied that he had found them causing damage to the paddy field of Mihan Singh and that he was taking them for production before the Panchayat.
On this Teja Singh shouted to his companions to attack Lachhman Singh who was given a number of injuries by the accused with their various weapons, Mihan Singh also being beaten by some of them when he tried to intervene. In this manner the accused rescued their cattle and took them away after Amar Singh, Ishar Singh and Chokha Singh P. Ws had also reached the spot and rescued the injured men.
3. The latter were taken to the Dispensary at Nagal twelve miles away the same night, Lachhman Singh being found to have thirteen inju. ries on various parts of the body including the head, one of his injuries being grievous as his right ulna bone was broken near the wrist. Mihan Singh had three injuries including an incised wound on the head and one of his injuries turned out to be grievous as his 8th left rib was found to be fractured under a bruise on the chest. The matter was reported to the police after they had been called to the Hospital by the doctor.
4. The defence of the accused was that Lachhman Singh had taken the buffaloes from the ordinary grazing ground and was taking them towards the jungle accompanied by Mihan Singh and that only two of the accused Gurnam Singh and Kirpal Singh were involved in the fight in which they rescued the cattle after their wrongful removal. This defence and alibis on behalf of some of the accused were supported by the witnesses produced in defence.
5. The learned Magistrate has apparently accepted the prosecution story as substantially true although he found a number of minor defects in the evidence. His ground for acquitting the accused in these circumstances is contained in the following passage in the closing portionof the judgment-
'I need not reiterate all the other weak points that I have noticed in the prosecution case but I feel that the case against Gurmukh Singh, Gurnam Singh and Kirpal Singh accused is sufficiently strong and would have ended in a conviction but for the fact that Lachhman Singh P. W. I never stated that he would take the cattle to the cattle-pound and as such the accused had no information that this seizure was under the Cattle Trespass Act and I feel that they had at right of defence of property against Lachhman Singh P. W. 1 and Mihan Singh P. W. 3'.
6. As it stands this does not appear to constitute satisfactory ground for acquitting three out of the accused against whom the learned Magistrate thought that the prosecution case had been established, since if persons who are entitled to do so round up cattle which are trespassing and causing damage, -and set off to take the cattle to the pound, the owners of the cattle are not entitled to attack them and rescue the cattle simply because those persons do not state in so many words that they have seized the cattle under Section 10, Cattle Trespass Act and are taking them away for the purpose of impounding them. It would, however, appear that in substance the ground given for acquitting the accused by the learned Magistrate is sound, although it has been very inadequately stated.
7. It is not suggested on behalf of the State that any person has a right to seize and remove cattle except under the provisions of Section 10, Cattle Trespass Act I of 1871. This section reads:
'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, or any person authorised in this behalf, either by name or by virtue of office, by Government, 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 establishedfor the village in which the land is situate......'
8. It does not appear that in the present case there is any cattle-pound established for the village of Mohri or that there was any intention on the part of either Lachhman Singh or Mihan Singh to take the cattle to any pound thus established.
Even assuming that Lachhman Singh who was the guard appointed by the Panchayat of the village to keep watch over the whole fields of the village was empowered to seize the cattle trespassing and causing damage under Section 10 though there appears to be some doubt on this point, since there is a conflict in the evidence as to whether the Panchayat of which Sundar Singh P. W. 7 is the Sarpanch is an official or unofficial Panchayat, it is clear from the evidence as a whole that the system in vogue in these matters is a sort of private arrangement which is no doubt found convenient by the villagers on account of the fact that the nearest official cattle-pound is situated at Nagal twelve miles from the village.
The system as described in the evidence of both Lachhman Singh and Sundar Singh is that Whenever Lachhman Singh seizes any cattle which he catches trespassing and causing damage he rounds them up and drives them to the village. The cattle may be redeemed on the way by their owners on payment of four annas per head of cattle. The evidence regarding what happens if the cattle are not redeemed by their owners on the way in this manner is somewhat unsatisfactory, it being alleged by Lachhman Singh that he simply restores the cattle to their owners in the village and thereafter tries to recover four annas per head from them with the assistance of the Sarpanch.
It is at any rate clear from the evidence of the Sarpanch that no cattle are ever actually produced before him or detained by him, and I find it hard to believe that in such circumstances the cattle are restored to their owners, since the realisation of any amount due from them after the restoration of their cattle is not likely to be an easy matter. It therefore seems more probable that in fact the cattle are detained in some irregular manner until the fine is paid, possibly by being handed over to the owners of the land on which the trespass and damage have been committed.
9. The villagers may find a rough and ready system of this kind convenient but it has no warrant in law since cattle can only be seized under Section 10 of the Act for the purpose of being impounded in the pound established for the village.
10. In these circumstances I consider that the appeal filed by the State must fail and I would accordingly dismiss it and I can only suggest that the village Panchayat, among whose legal duties is included the duty of establishing a cattle pound, should carry out its duty properly in this respect and establish a regular pound in the village.
11. I agree.