BHARGAVA, J.—This is an application in revision by Maide Khan and Saide Khan against their conviction under sec. 326 of the Indian Penal Code. Each of them has been sentenced to rigorous imprisonment for one year.

2. The case of the prosecution against them was that on 2nd March, 1962 at about 1 P.M. Saide Khan petitioner drove his flock of sheep numbering about 500 into the field of Mohkamsingh (P.W.2) and Rajendrasingh (P.W.7) where Sarson crop was standing. It is said that the sheep caused considerable damage to the standing crop. Mohkamsingh and Rajendrasingh then collected the sheep and started for Talwara cattle pound to put them there. It is further said that while Mohkamsingh and Rajendrasingh were only a mile away from Talwara, the petitioners along with three other persons namely Umarkhan, Phalak Sher and Sattar Khan riding on horses reached there. Umarkhan and Maidekhan were armed with Sailas, Saide Khan was armed with a gandasi, Phalak Sher had a rifle and Sattar Khan a lathi with him. These persons asked Mohkamsingh and Rajendrasingh to release their sheep. On their refusing to do so, they assaulted them with the arms that they were carrying. Rajendrasingh sustained as many as 17 injuries. Out of which 10 were simple injuries caused with a blunt object. One injury with a blunt object was grievous. He had three punctured wounds, three cut wounds and one incised wound. One cut wound which had caused fracture of right ulna bone was grievous. Mohkamsingh received only one injury and that was punctured wound 25" x 2" x 2" on left fore-arm laterally near shoulder. It was caused by some pointed weapon and was simple.

3. On a report of the occurrence being made the police held an investigation and put up a challan against the petitioners only.........No challan was put up against Umarkhan, Phalak Sher and Sattar Khan. The petitioners were tried by the Assistant Sessions Judge, Hanumangarh, who on a consideration of the evidence led in the case did not believe the prosecution case that the petitioners sheep had entered the field of Mohkamsingh (P.W. 2) and Rajendrasingh (P.W. 7) and had caused damage to their Sarson crop. The learned Assistant Sessions Judge, further came to the finding that the act of taking away the sheep by Rajendrasingh and Mohkamsingh to the cattle pound did not amount to the offence of mischief or theft and as such the petitioners had no right of private defence of property. In the opinion of the learned Assistant Sessions Judge, three persons against whom challan was not put up by the Police had also participated in the crime. In view of the above finding the learned Assistant Sessions Judge convicted the petitioners under Secs. 326, 325,324 and 323 read with sec. 34 of the Indian Penal Code and sentenced them to various terms of imprisonment under the aforesaid sections.

4. On appeal the learned Sessions Judge, Ganganagar agreed with the finding of the trial Court that the prosecution had not succeeded in proving that the sheep had trespassed and damaged the crop of Rajendrasingh and Mohkamsingh. On the other question whether the act of Rajendrasingh and Mohkamsingh in taking away the sheep amounted to offence of theft, he disagreed with the trial court and held that Rajendrasingh had no authority to seize those sheep and his act was unlawful and amounted to theft and the petitioners had a right of private defence of property. He however, held that he had exceeded that right. He also held that it was not proved that the petitioners were members of an unlawful assembly. He therefore, set aside their conviction under secs. 325, 324 and 323 of the Indian Penal Code. Since they had exceeded their right of private defence of property, the learned Sessions Judge convicted them under sec. 326 of the Indian Penal Code and reduced their sentence to one years rigorous imprisonment each.

5. In my view on the finding arrived at by the courts below, the conviction of the petitioners in the circumstances of the case

Click Here to Read the rest of this document