1. In a village called Ramalingapuram in Tirunelveli Dt. the villagers held a meeting and passed a resolution that cattle should not be permitted to graze in any of the lands situate to the east of the village till the end of the Tamil month Thai, when the harvest of crops would be completed. Subba Naicker, son of Lingava Naic-ker (P. W. 7) and S. Subba Naicker (P. W. 20) were appointed by these villagers as watchmen, cm a monthly salary, to enforce this decision. On 21-12-1962, the six accused before Court, all of whom are closely related to each other and accused 3, 4 and 5 among whom ate brothers, grazed about 150 sheep in the punja of Sangnva Naicker (P. W. 19) and the adjoining Punja field of Swami Naicker, the brother of .P.W. 21, both these fields.being situate in the prohibited area to the east of the Village.
On a complaint by the two watchman (P. W. 7 and 20) a large number of villagers went there, in order to remonstrate with the accused; and to inn-pound the cattle. When Some of these villagers entered the punja of Swami Naicker. where the accused were, to setae and impound the cattle, an incident of grave violence occurred. Accused I speared with a vel Krishnaswami Naicker (deceased) who was at the head of the party of villagers; a Very serious injury was thereby caused, resulting, in the almost instantaneous death of the victim. It is alleged that the other accused (accused 2 to6) pelted stones, and also caused damage to the crop by cattle trespass.
2. Arising out o the murder, the six accused were tried by the learned Additional Sessions Judge of Tirunelveli, upon several charges, which need not how concern us. We are concerned with the ultimate convictions and sentences at the trial alone. Accused 1 was convicted of the murder of Krishnaswami Naieker (deceased) under Section 302 I. P.C. and sentenced to imprisonment for life. Ha was also convicted under Section 427 I. P.C. and sentenced to R. I,, for three months, to run concurrently with the life sentence. Accused 2 to 6 were convicted under Section 427 I. P. C., and each sentenced to R. I. for three months. Again, accused 4, 5 and 6 among the accused, were sentenced under Section 323 I. P.C. upon the sixth charge framed at the trial, namely, causing hurt, by pelting of stones to K. Subba Naicker (P. W. 2) and each sentenced to R. I. for three months, the sentences to run concurrently with the sentences imposed under Section 427 I. P.C. All the accused have preferred appeals from the respective convictions and sentences.
3. The appeal involves a question of consider-able interest, in the light of a conflict revealed by the available case law, upon the subject, whether the present circumstances disclose that the seizure or attempted seizure, of the trespassing cattle by witnesses for prosecution, was illegal, within the ambit of the Section 10 of the Cattle Trespass Act 1871, and whether, if the conclusion is to be in the affirmative, accused I could plead that he was entitled to tights of private defence of property, such illegal seizure amounting to theft? There are also ancillary questions of some importance, whether the owner or the property would lose the right to seize the trespassing cattle, once those cattle have actually left his land, and again, whether such a tight of seizure could be validly exercised only by the owner or the land, or could be exercised by a person or persons' to whom such authority is delegated, such as a servant or agent?
4. We shall first set forth, in brief outline, the main fact's of this occurrence. Concerning those facts, there is very little room for doubt or difference of opinion, as the learned Counsel for accused I Sri Kunaaramarigalam, frankly concedes. There are as many as 13 direct witnesses to the occurrence namely P.Ws. 1 to 9 and 17 to 20 and the presence of these people at the spot of the murder can hardly be doubted. Again, the broad setting in which the offence occurred, and the events which led up to it, are not matters in serious controversy., As we have earlier affirmed, the real question is, whether accused I could be held to have acted in exercise of any right of private defence of property, in inflicting the murderous assault on the deceased, even it he grossly exceeded that tight, and whether a similar protection would be available to the other accused upon the other charges?
5. The record abundantly shows that there was A meeting 15 days before this offence, when the villagers resolved that cattle should not be permitted to graze in the lands to the east, which include the punjas of Swami .Naiokef and P. W. 19, and further appointed P. Ws. 7 and 20 as watchmen to enforce their decisions. It appears that there was general initiation of this meeting in the village, but it is admitted that the accused did not attend the meeting or participate in it; presumably the accused could plead that they were in ignorance of this decision. However, this might be, P. W. 7 and 30 complained to P. W. 1 and others that the cattle of accused 1, 4 and 6 had been trespassing and gracing on these lands on the previous day (Thursday). Hence at about 11.30 a. in. on the date of occurrence (21-11-1962) P. W. 1 and the other direct witnesses proceeded to the spot of Occurrence, along with two watchmen (P. W. 7 and 20).
In order to appreciate the true character of the plea of a right of defence of property inhering in the accused, it is necessary to study the plan Ex. P. 21 in the light of the evidence. Unfortunately it has to be conceded that the plea is hardly as clear and detailed as one could wish. However, the plan at least estab-lishes it beyond doubt that, when the direct witnesses went therei the accused were all of them in the punja of Swami Naicker to the west, but the 150 heads of cattle were dispersed in this field, as well as the ad-joining eastern field of Sangava Naicker (P. W. 19), where there was cotton crop, which had been damaged by the cattle. Again, the record makes it abundantly clear that the prosecution party entered only the punja of Swami Naicker, headed by Ktishnaswarni Naicker (deceased); it is not in dispute that they enter-ed in that manner, in order to seize and impound the cattle. Accused 1 had a vel (spear) and accused 2 and 8 each had a stick. When the witnesses for prosecu-tion tried to seize and drive the cattle in that field, the accused pelted stones. Accused 2 to 6 shouted to the accused 1 'cut the whore's son who is advancing in front' Immediately accused stabbed the deceased on the left chest with the spear. The spear pierced through the chest, and came out on the back side. Accused 1 tried to pull out the spear, but could not do so, and left it in the body of the deceased. Krishna-swami (deceased) fell down, with the spear through him, and died very shortly thereafter. The accused pelted stones and ran away.
6. An attempt was made by one of the witnesses to revive the victim with water, but life was found to be extinct. Another witness drew out the spear (M. O. l|) from the body, P. W. 1 went to the police station at Kalugumalai, and gave a report of the occurrence, Ex. P. 1. There is very little difficulty concerning the subsequent facts of the investigation by the Sub Inspector of police (P. W. 22). Blood stained earth was recovered by P. W. 22 from a spot 13 feet to the north east of the dead body, and stones stained with blood, near the dead body, were also recovered. P.W. 22 further states that the cotton crop on the punja of P. W. 19 to the east, was found damaged by eattle trespass, He declares that all the witnesses told him that ''they saw all the accused standing in the tarisu punfi of Swami Naicker.' This disposes of any possible doubt regarding the actual spot of occurrence; it will exclude any theory that the incident occurred in any part of the cotton punja of P. W. 19', or that the witnesses for prosecuted entered that punja in order to seizs and impound the traspassing cattle there.
7. As earlier pointed out by us, the broad facts of the incident are really indisputable.The autopsy held on the body of the deceased by P. W. 11 reveal-ed a stab injury 2' x 2' x 10' on the left side of the chest, between the fourth and fifth intercostal space. There was a corresponding exit wound on the back, one inch in width. The left lung was punctured in both lobes, and there can be no doubt that the injury was fatal and would cause almost instantaneous death. K. Suboa Naieker (P. W. 2) had four simple wounds, Which could be due to pelting with stone; this is relevant, with regard to the conviction of certain of the accused under Section 323, I. P.C. While on the aspect of the medical evidence, we are bound to notice one feature, since that has some bearing upon the plea of possible self-defence. The right arm of the deceased was half flexed and the fingers flexed, as if the victim had a firm grip. According to P. W. 11, this was due to a cadaveric spasm of the upper extremity, As he explains, the muscle that has been in a state of contraction during life, becomes stiff and rigid immediately after death, without passing into a stage of relaxation. The doctor (P. W. 11), further, added, in re-examination It is a natural human instinct to evade or to pull the weapon used, in inflicting the injury.' We agree with the learned Sessions Judge in his view that this Cadaveric spasm must have been due to an instinctive action by the deceased, in trying to null out the spear (M. 0,1} which accused 1 himself left in the body, and was later taken out by a witness after the death of the victim. This feature does not suggest that the deceased was armed with any other weapon, like a stick, or that he attempted to use such a weapon against accused 1,
We are unable to see how, on the fact) of the record t it could be doubted--
1. that accused 2 stabbed the deceased Krishna-swami Naicker with M. O. 1, as the latter entered the field, where the cattle were gracing and caused his death and (2) that all the accused caused damage to crops by cattle trespass, and further that accused 4 to 6 pelted stones and caused injuries to P. W. 2. We may immediately proceed to THE aspect of the right to defend property possessed by the accused or which they could conceivably claim to possess and the extent to which that right would affect the nature of the offences established by the evidence.
8. The matter may be expressed in the form of three propositions of law, upon which the authorities are by no means unanimous. The first is that, with reference to the scope of S, 10 of the Cattle Trespass Act, it will be an illegal seizure amounting to theft for persons other than those empowered by that section, to attempt to seize and impound cattle. In that case conceivably, the owner of the cattle will have a right of private defence of property. Even if the per-son attempting to impound the cattle is the owner of the property on which the trespass has occurred, or a person duly authorised under Section 10 there is the further proposition whether the owner will or will not lose his eight of seizure, once the cattle leave his land, and are not actually upon that land. Here, again, the authorities are not uniform. Thirdly there is the question whether the right to seize and impound trespassing cattle under Section 10 can be exercised only by the owner or other person specifically authorised in terms of that section or whether a servant or watchman could impound the cattle. As we shall show immediately, the doctrine in English law is a little different from the law in this country, on these related aspects,
9. The English doctrine of 'Distress damage feasant'with regard to the topic of seizure in parti-cular, is best set forth by the statement in Halsbury's Laws of England, Simonda Edn. Vol. 1, page 673 (S. 1281) which is as follows:
By an old common- law remedy similar to distress for rent,, called distress damage feasant, trespassing animals may beseised and impounded to secure compensation for the damage done by them. The distress must be made at the time of the trespass and on the land. There is no doctrine of fresh pursuit in distress damage feasant, and the animal can-not be followed if once it goes off the land.
There is a conflict of decision upon the questioni whether a seizure of trespassing cattle, by persons not authorised under Section 10, which would undoubtedly be illegal, would actually amount to theft, and there by clothe the owner of the cattle with a right of private defence of property. The two opposing trends of the case-law have been reviewed by Narasimhan C.J. in Lokenath v. Rasas Beura : AIR1963Ori52 . As has been emphasised in the Judgment, one view is that though the seizure might Be unlawfu;. the owner of the eattle would be entitled only to compensation in a civil court, and cannot use force the rescue the animals. This line of cases stems from Aradhun Mondul v. Myan Khan );'> adopted the view that where the seizure of the cattle is illegal, an intention to cause wrongful loss to the owner is thereby manifest, and that unless the seizure was due to some bona fide error, such as an error rejecting to interest in the property itself, the illegal seizure would amount to theft, clothing the owner of the cattle with a right to private defence of pro-party.
The facts in Chittiboyina v. Danduboyina Narappa AIR 1939 Mad 775 are, in this context, of interest. Some cattle were seized by a person, who had no connection with the crops alleged to have been damaged, and were being taken to the pound, when they were stopped and forcibly rescued by the owner of the cattle. When the owner was convicted under Section 379, Penal Code. Pandrang Bow J. set aside the conviction, holding that the cattle were through-out in the lawful possession of the owner, and that the seizure of the cattle by the person taking them to the pound, the pound authorities not having actually received the cattle, was manifestly illegal. In the light of the available case law, we agree with respect, with the observations in this decision, and the dicta of Narasimham G. J. in : AIR1963Ori52 , earlier referred to. Under such circumstances, we think that there could be little doubt that the seizure of the cattle will be illegal and that since the seizure and impounding of the cattle amounts to causing of wrongful loss to the owner, the attempted removal of the cattle would be an attempted theft of property, clothing the owner with a right to defence of property. We shall deal with the ancillary questions' also, before applying the principles to the facts of the present case.
10. It is of interest to note that in a single Judge of that High Court took the view that the right of seizure under Section 10 of the Act only extends within the period when the cattle are actually on the land; it ceases after they leave such land. It would be unduly straining the language of Section 10 to read therein any provision for the right to seize the cattle, even after the Cattle had left the land and had ceased to commit trespass. The learned Judge also refers to the English law, and to the precise terms of Section 10 of the Act But, a different view has been adopted its several decisions of courts, and a recent expression of this view is to be found in Lokenath Cope v. state : AIR1960Pat385 . The seizure need not be effected only during the process of the trespass and causation of damage on the land. The owner must no doubt, take immediate action to seize the trespassing cattle on the land, but he is within his right in capturing them by pursuiti even though physically the cattle may be outside of the field. This relatively wider interpretation of the expression 'may seize or cause to be seized any cattle trespassing on such land and doing damage thereto' in Section 10 has been affirmed in Waryami v. Emperor .
We are unable to see why the right to impound trespassing cattle should be limited to the actual confines of the field of the owner; such a restriction would obviously cause great hardship. If the owner : initiates the seizure while the cattle are trespassing, that would be sufficient, and he may either capture them in his land itself or even outside of it, provided that he continuously follows up the initial attempt by pursuit and seizure. Of course, such an interpretation must be applied within a reasonable time, to the facts of the given case.
11. Upon this proposition, it is interesting to note that an identical line of reasoning was adopted by the Division Bench in, AIR 1947 Lah 380 earlier referred to. The point is that the owner of the field would be within his right in capturing the trespassing cattle before they had escaped altogether, even though they may be physically outside his field at the time of seizure.
12. Concerning the last question, with regard to the delegation of authority by the owner under Section 10, we think it is sufficient to cite Nallakaruppan v. Subbiah : AIR1960Mad331 , where Ramaswami J. has referred to, and reviewed, all the prior available authorities. The learned judge held that seizure of cattle by a watchman or servant, under general instructions from the cultivator or occupier, was lawful within the ambit of Section 10. It is not necessary that the owner or occupier himself must physically seize and take the cattle to the pound.
13. In the light of these conclusions upon the case-law, we shall immediately proceed to assess the question whether accused 1 and the other accused, could claim a right to private defence of property, even if it be that such a right was grossly exceeded. As it will at once be obvious, the entire question is of great significance in the case of accused 1, who has been convicted of the murder of Kiishnaswami Naicker (deceased). If there is an initial right in his favour, his act, even if the right be grossly exceeded, would only be culpable homicide not amounting to murder, within the scope of Exception (2) to Section 300, Penal Code.
14. The record makes it clear that the members of the prosecution party had really no right to seize and attempt to impound the trespassing cattle, on the facts of this case. The broad circumstance is indisputable, that P. W. 1 and the other witnesses entered the field of Swami Naicker, the brother of P. W. 21, where the accused then were, and made an attempt to seize the cattle in that field. Swami Naicker himself was not in this party, nor was P. W. 21 then in that party. P W. 19 was no doubt in the party and his adjoining cotton punja had been damaged by trespassing cattle. Matters might have been widely different, had members of the prosecution party entered the field of P. W. 19 in order to seize and impound the trespassing cattle on that field. But, explicitly, according to the evidence, they did not do so. We do not think it could be claimed, in this case, that Swami Naicker the owner of the field, had autho-rised P. Ws 7 and 20 to act for him, as his servants and to seize the cattle trespassing on his field. Such an authority must be specifically proved, and it is not enough that the villagers, in general, had adopted a resolution or hid employed P. Ws. 7 and 20 as watch-men to implement their decision.
Notwithstanding the presence of P. W. 19 it is clear that the members of the prosecution party had no right to enter the field of Swami Naicker, and to attempt to seize the cattle of the accused trespassing in that field. Since such attempted seizure was illegal, and would, if successfully carried out, have involved wrongful loss to the accused, we have to hold that the accused did possess some initial right of private de-fence of property. Nor can it be said, on the principle of the Division Bench decision in AIR 1947 Lah 380, earlier referred to, that the acts of the prosecution party were justified, because there were trespassing cattle also on the adjoining punja of P. W. 19 ; and P. W. 19 was a member of the prosecution party. Had these persons been intent on seizing those trespassing cattle in that field, they would certainly have entered that field first. If they had done so, and the cattle in that field had strayed into Swami Naicker's land, we can follow the argument that P. W. 1 and his companions had every right to enter Swami Naicker's land, and to attempt to seize the cattle. But the evidence is not this, but that the prosecution party immediately entered Swami Naicker's field, where the accused were, and tried to seize the cattle there. Hence, we are constrained to conclude that there were certain initial rights of private defence of property possessed by these accused.
15. But we have no doubt whatever that accused 1 grossly exceeded that right, in immediately spearing to death the unarmed Krishna Swami Naicker (deceased), who was entering the field. In coming to this conclusion, we have given due weight to the dicta of Courts in innumerable decisions, upon the necessity for a generous interpretation of the right of private defence of property or person, and the limits to which that right could extend when the matter is later being assessed with calm scrutiny, and the concerned offender had acted at that time, under circumstances of excitement and apprehension. The same need for care and latitude in interpretation has been emphasised in the latest dicta of the Supreme Court in Jai Dev v. State of Punjab : 3SCR489 . But making every allowance for this factor, we are compelled to conclude that accused 1 grossly exceeded those rights, in spearing the deceased, as soon as the deceased advanced in an attempt to seize the trespassing cattle.
The act of accused 1 would thus fall within Expeption (2) to Section 300, Indian Penal Code, and he would be guilty of culpable homicide not amounting to murder punishable under Section 304 (Part 2) Indian Penal Code, As regards the other accused, we have no doubt that accused 4 to 6 were rightly convicted under Section 323, Indian Penal Code, in respect of the injuries caused to P. W. 2. It seems to be clear that this pelting with stones was subsequent to the murder, and it would not be justified at all, as force employed within the limits of defence of property to restrain the prosecution witnesses from further seizing or impounding the cattle. Similarly, with regard to the conviction of the accused under Section 427, Indian Penal Code, the propriety of this conviction could hardly be in dispute. For, it has no relevance to the argument upon the rights of private defence ; indisputably, the cotton crop of Sangava Naicker (P. W. 19) was damaged by the trespassing cattle of the accused and he being a member of the prosecution party then present, had every right to complain against this act of mischief.
16. Incidentally, it may be of some interest to note a difficulty that arose during arguments in applying Exception (2) to Section 300, Indian Penal Code, to the case of accused 2. The language in which the framers of the Code have thought it fit to frame this Exception does appear to involve a certain difficulty, The offender is entitled to the benefit of the Exception, only if he acts 'in the exercise in good faith of the right of private defence of person or property' Even if in good faith he exercises the right but exceeds the power and causes the death of the other person, he could claim the benefit only if he had done so 'without any intention of doing more harm than is necessary tor the purpose of such defence'. The difficulty here is that, if the element of intention is to be assessed by objective test of the harm or injury which caused the death, it could well be argued that wherever the injury is mortal in character, the offender is disentitled to the Exception altogether.
The Authors of the Code appear to have been aware of this difficulty, and there is an illuminating discussion upon this aspect, extracted in extension the Penal Law of India by Dr. Sir Hari Singh Gour, 7th Edn. Vol. II, page 1425, We do not think it necessary to reproduce that extract here. But we may observe that the very illustration to exception (2) indicates the scope of the benefit, A man, believing, in good faith, that he can, by no other means, prevent himself from being horsewhipped by an assailant, shoots that assailant dead. If the intention is to be judged, reasoning from the injury, it could hardly be held that he had no intention of doing more harm than was necessary, for it is a given term of the illustration that the assailant, who attempted to horse-whip the accused, was not doing so in such a manner as to cause grievous hurt. As the Illustration shows, intention cannot be judged, in the context of this Exception, merely by reasoning backwards from the objective fact of the injury which resulted in death on a principle that a man is supposed to intend the natural consequence of his act.' Hence, we conclude that accused 1 is entitled to the benefit of exception (2) to Section 300, Indian Penal Code, and convict him accordingly under Section 304 (Part 2) Indian Penal Code.
17. Taking all the circumstances into account, accused 1 is sentenced to R. I, for six years under Section 304 (Part 2) Indian Penal Code. His conviction and sentence under Section 427, Indian Penal Code, are confirmed ; the sentence will run concurrently. The other accused have been guilty only of very trivial offences, and have suffered already the prolonged strain and suspense of the Criminal trial, and the further proceedings. Hence, we think that it is sufficient, in the interests of justice, that each of the other accused 2 to 6 be now sentenced, instead, to a fine of Rs. 25 (or R. I. for three weeks in default) under Section 427, Indian Penal Code. Similarly, accused 4 to 6 will now be sentenced to a fine of Rs. 25 each (or R. I, for three weeks in default) under Section 323, Indian Penal Code, namely, Rs. 50 in the aggregate in the case of these accused. Subject to the above modifications of the convictions and sentences, the appeals are dis-missed, Time for payment of the fines, two weeks.