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TMI Blog1964 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... village Tilauthu. These persons were armed with sharp-edged weapons and lathis. The report of the seizure of the cattle reached Shamnarain Singh and other people in the village. A number of people, variously armed, started from the village to rescue the cattle. They were joined by others on the way. This party, including Sukhari Mahto, Deocharan, Sheodutt, Hari Mahto and Ramdeo, caught up with the other party a short distance from the cattle pound and asked that party to release the cattle. Altercation took place between the parties and then they fought together. According to the prosecution case, members of the appellants' party attacked Shamnarain Singh and his companions. Accord- ing to the appellants it was the other party which attacked them. As a result of the fight five persons got injured on the side of Shamnarain Singh. Of them, Ramdeo got one gaping punctured wound in the right thigh with a spear. He died as a result of the injury received. Sukhari Mahto received 16 injuries including 4 incised wounds. The other three injured persons received ordinary injuries. Deocharan had an abrasion, Sheodutt Singh got a lacerated wound, a swelling and an abrasion and H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ittal of the 28 accused. The High Court allowed the appeal against 13 respondents and convicted Ratan Ahir under S. 302 I.P.C. and the others under s. 326 read with s. 149 I.P.C. and of some other offences. It may be mentioned that one of the respondents had died and 14 others were acquitted. The High Court agreed with the Sessions Judge that the plot in suit was in the possession of Shamnarain Singh and that the seizure of the cattle by the accused-party was illegal. The learned Judges, however, were of opinion that the Sessions Judge had taken a wrong view of the law in thinking that the members of the prosecution party were not entitled to rescue the cattle by gleans of force only because the respondents had succeeded in taking away the cattle for some distance. They held that once the seizure of cattle was found to be illegal, members of the accused party were in the position of thieves-rather dacoits-when they had seized the cattle by show of force to the cowherd boys, and that therefore the members of the prosecution party had the right of private defence of property and could recover their cattle by use of force, subject to the limitation that force in excess of what was nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f private defence of property to Shamnarain Singh and others. To determine the question raised, it is desirable to refer to the provisions of the Act in order to find what actions of the appellants would be in accordance with its provisions, what would be against them and to what they would be liable if they acted against such provisions. Section 10 authorizes certain persons having interest in the crops grown on any land to seize or cause to be seized cattle trespassing on it and doing damage thereto or to any crop or produce thereon. It requires them to send the cattle so seized, within 24 hours, to the pound established for the village in which the land is situate. It further provides that all officers of police shall, when required, aid in preventing resistance to such seizures and rescues from persons making such seizures. Section 11 authorises certain persons to seize cattle which damage public roads, canals, embankments and other things mentioned in that section. Section 12 provides for the levy of fine for every head of cattle impounded. Chapter V deals with complaints of illegal seizure or detention, and has four sections, ss. 20 to 23. Section 20 reads: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal seizure or detention. The expression used in S. 24 is different and makes the forcible opposition of the seizure of cattle punishable when the cattle seized were liable to be seized under the Act. If the cattle were not liable to be seized, forcible opposition to their seizure would not be punishable under s. 24. Section 25 of the Act provides a mode for the recovery of penalty for mischief committed by causing cattle to trespass. It thus takes notice of the offence under the Penal Code committed by the person who causes cattle to trespass on other's land, and provides that any fine imposed for the commission of that offence can be recovered by sale of all or any of the cattle by which trespass was committed, whether those cattle were seized in the act of trespassing or not and whether they were the property of the person convicted of the offence or were only in his charge when the trespass was committed. Section 26, inter alia, provides for penalty for damage caused by pigs through neglect or otherwise to crops etc., or public roads or damage by cattle generally if the State Government so notifies. Section 29 expressly provides that nothing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ize the seizure and detention of cattle doing damage as aforesaid and also to make provision for the disposal of cattle found straying in any public place : It is enacted as follows: Section II of the 1857 Act empowered the cultivator or occupier of any land to seize or cause to be seized any cattle trespassing on his land and doing damage to any crop or produce thereon. Section 10 of the Act gave such right to other persons is well. It did not however give the right to seize cattle damaging the crops to everyone who might notice the cattle damaging the crops. Though the power to seize cattle trespassing on a person's land was given only when the cattle were damaging the land or the crop the,-eon, it should have been considered a difficult matter for the person authorized to seize cattle to determine first whether the cattle had caused damage to his land or crop and thereafter to seize them. The person so authorized would instinctively first seize the cattle on his land presuming that they must have damaged the crop or the land and that any further presence of the cattle in the field without their being seized would lead to further damage. Further, s. 10 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear that illegal seizure of cattle by persons. purporting to act in accordance with the provisions of the Act could be an offence of theft under the Penal Code. We arrive at the same conclusion by a scrutiny of the provisions of the Penal Code. We may now consider what acts constitute the offence of theft under the Penal Code. 'Theft' is defined in s. 378 thus: Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in.. order to such taking, is said to commit theft. This Court had occasion to consider at length what commission of theft consists of, in K. N. Mehra v. The State of Rajasthan(1). It said at p. 630: Commission of theft, therefore, consists in (1) moving a movable property of a person out of his possession without his consent, (2) the moving being in order to the taking of the property with a dishonest intention. Thus, (I) the absence of the person's consent at the time of moving, and (2) the presence of dishonest intention in so taking and at the time, are the essential ingredients of the offence of theft. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the cattle are seized in the purported exercise of the right to seize them under s. 10 of the Act, specially when s. 20 speaks of such seizure as being under the Act. An act done in accordance with the provisions of the Act cannot be considered, prima facie, to be a dishonest act, and would not justify the conclusion that the taking of the cattle to the pound amounted to the offence of theft. A person is said to do a thing dishonestly when' he does anything with the intention of causing wrongful gain to one person or wrongful loss to another person. In the case of illegal seizures and impounding of cattle, the person seizing the cattle does not gain anything. He simply takes the cattle to the pound. He does not use them for his purpose. He, in fact, exercises no greater dominion over those cattle than that of being in their custody on their journey to the pound. It is said that it causes wrongful loss to the owner of the cattle inasmuch as he keeps the owner out of possession of the cattle as he was wrongfully deprived; of the property for the time being, it being not necessary that the deprivation of property be of a permanent character. We do not think that in such circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notions that he was entitled to seize the cattle, was to take them to the pound as required by the Act so that no further damage be done to the land or property. It is true that intention is mostly gathered from the consequences of the act committed by the accused but that is so because it is not often that the intention with which an act is committed can be definitely known from any previous fact. When a person does a certain act by openly expressing his intention in committing the act there seems no reason why his intention should be gathered by the consequences of his act except in those cases where it is found that the avowed intention was a mere cloak for some other real intention which is then to be determined in the same way as it is determined in cases of non-expressed intention. In view of the various considerations mentioned above, we are of opinion that 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Shamnarain Singh's party was the aggressor. The view cannot be said to be unreasonable even though the prosecution witnesses did not actually state so. The circumstances of the case, however, indicate that normally Shamnarain Singh's party would have been the aggressors. It is they who were aggrieved at the conduct of Rattan and others and deliberately followed those persons in order to rescue their cattle and therefore would have, in that state of temper. started the attack. The fact that four persons in Rattan's party received more injuries than five persons in Shamnarain's party and the number of serious injuries was also larger on their side support this view. These four persons received 8 punctured wounds and 4 incised wounds out of the total of 26 injuries on them all. The five persons on Shamnarain's side received 22 injuries which included only one punctured wound, the only one on Ramdeo deceased, and 4 incised wounds on Sukhari Mahto. Even if Shamnarain Singh's party were not the aggressors and the attack was started by the party of Rattan, as appears to be the view of the High Court, that would not give any right of private ..... X X X X Extracts X X X X X X X X Extracts X X X X
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