1. This is a criminal revision case filed against the conviction and sentence of the City First Class Magistrate, Coimbatore, in Crl. Ap. No. 19 of 1951 confirming the conviction and sentence of the learned Stationary Sub Magistrate, Erode, in C. C. No. 159 of 1950.
2. The facts are brief: There has been ill-feeling between the complainant in this case and the accused and this ill-feeling seems to have spread from the masters to their Quadrupeds. There was an impounding of the cattle of the complainant by the accused one fort-night before this alleged occurrence and the complainant had to pay money for releasing the cattle. One fortnight thereafter the complainant has launched this case on the ground that a horse belonging to the accused grazed in a six acre field of his cultivated with cholam and horse-gram. The crop of horse-gram is specifically mentioned as having been in flower and grown to a height of one foot. The horse was said to have been taken to the pound and the case is that in transit it was forcibly rescued by the accused.
3. Both the courts below have believed the rescue and have convicted the petitioners under Section 24, Cattle Trespass Act, as well as under Section 143, I. P. C., and sentenced them to fine's totalling to Rs. 50 in the case of each petitioner.
4. The point taken before me is two-fold, namely, one of law and one of fact. So far as the point of law is concerned the contention of the learned advocate for the petitioners is that there is no specific finding in the order of the lower court showing that the horse which was seized has been shown to have done damage to the land or to any crop or produce thereon and that mere trespass even if true, would not amount to an offence under Section 24. It is quite true that only cattle liable to be seized under Section 10 if rescued there would 'be an offence under Section 24 and so the offence under Section 10 should be made out. There is no specific finding to that effect; and it would certainly have been better if the minds of the parties had been specifically directed to this aspect of the case and a categorical finding given. But the absence of a specific finding would not entitle the accused to an acquittal if it can be reasonably inferred from the evidence in the case. The absence of such a finding would at the worst be a curable irregularity.
In this case there is some evidence that the horse was grazing and that there must have been damage to the horse-gram crop. It stands to commonsense that this offending horse would Hot have gone to the field merely for the purpose of 'taking the air' (Hawa-Khana) but that it would have been attracted there by the rich fodder therein waiting to be cropped up and munched. It may be safely presumed that some nominal damage must have been caused in the circumstances of the case by the grazing of the horse and in coming to such a conclusion we are fortified by the decision in - 'Faiyaz Khan v. Rex', AIR 1949 All 180 (A) of the Allahabad High Court. It was found in fairly similar circumstances that where the cattle trespassed into a rich sugar crop field we can presume that they did some nominal damage to the crops standing on the field. The relevant extract is,
'It is true that Ammi Khan (in this case P. W. 1) has merely stated that he saw some cattle in our sugarcane field (in this case horse-gram) and has omitted to state that the cattle did any damage to the crop. If cattle enter a field full of crop, damage may be presumed. It should be remembered that damage required under Section 10, Cattle Trespass Act, is not necessarily substantial damage. It may be nominal damage when cattle enter into a field in which sugarcane crop is standing. They will naturally trample upon or waste, or graze some of the crop. The presumption, therefore, is that the cattle did in fact cause-Some damage.'
It was further pointed out that it should be remembered that damage required under Section 10 of the Act is not necessarily substantial damage but that it may be nominal damage.
5. If the matter had really stood there Iwould not have been disposed to interfere butin this case on the facts I find there are nogood grounds whatsoever to believe the grazing by the horse because it is rested upon thetestimony of P. W. 1 who admittedly bearsillfeeling towards the accused and his evidenceis not in any way corroborated. In fact wefind that he has made a statement in cross-examination which throws considerable light aboutwhat he stated in the examination-in-chiefabout the grazing and 'ergo' causing of damage.Therefore it is certainly not beyond the boundsof possibility, in this case that the horse ofthe accused which might have strayed towardshis field might have been caught and dubbedas the culprit which grazed and taken to thepound in order to wreak vengence and as titfor tat. (pace the previous incident). Thejudgment of the court below does not showthat it was very much impressed with the demeanour of P. W. 1, so that we can say thatnotwithstanding the infirmities in the evidenceit should be accepted. Therefore in these circumstances it seems to me that there is reasonable doubt whether this horse grazed at allin the field in question and whether all thisfuss was not due to the previous incident.Therefore, as the conviction of the learned'Magistrate in the court below seems to bebased upon unacceptable evidence and whichcan be legitimately described as no evidenceat all it cannot be supported. The convictionand sentences are hereby set aside and thefine amounts if collected will be refunded tothe petitioners.