(1.) This criminal revision is directed against the order of Shri Udham Singh, Additional Session Judge, Delhi, dated the 2nd December, 1964. By the said order the learned Additional Sessiofas Jadge dismissed the appeal and upheld the conviction and sentence of the petitioner under section 353, Indian Penal Code.
(2.) The facts of the case are that on 21-6-1962 at about 8-30 A.M. the cattle catcher squad of the Municipal Corporation, Delhi consisting of Bab-am (P.W.2), Roop Ram (P.W.3) and others found a buffalo belonging to the petitioner grazing in a public park near Minto Road. They caught hold of the buffalo and were taking it to the cattle pound when the; petitioner, his son and his wife appeared on the scene and forcibly snatched the buffalo. The petitioner was challaned under section 353, Indian Penal Code, and convicted and sentenced as above.
(3.) Mr. Tarlochan Singh, the learned counsel for the petitioner, submits that there was nothing on the record to show that the persons comprising the cattle catcher squad were public servants acting in the discharge of public duty at the relevant time. There is no force in this contention. The evidence of Balram and Roop Ram, Public Witness PWs. 2 and 3 respectively, shows that they had gone to the Minto Road area for seizing stray cattle. This clearly establishes that they were acting in the discharge of public duty. It is then contended that even on the fact disclosed by the prosecution witnesses the case would be covered by section 24 of the Cattle Trespass Act and consequently the conviction under section 353, Indian Penal Code, was not valid. The learned counsel submits that the Cattle Trespass Act being a special Act seczion 24 pro tanto repeals the provisions of section 353, Indian Penal Code. It is in evidence of the said P.Ws that petitioner Watan Singh beat the members of the squad. This evidence has been rightly accepted by the two Courts below. It follows that the petitioner was guilty of assault or use of criminal force against a public servant engaged in the execution of his duty as such public servant The case would, therefore, clearly fall under section 353, Indian Penal Code. The ingredients of section 24 of the Cattle Trespass Act 1871 are not the same. A person would be guilty under section 24 if he rescues the cattle after seizure. Assault or use of criminal force need not be necessarily there before a persen can be convicted under section 24 of the Cattle Trespass Act. Section 24 cannot, therefore, be held to have repealed section 353. A repeal by implication takes place when (a) the subsequent Act is so inconsistent or irreconcilable with an existing prior Act that one of the two can remain in force or (b) an Act covers the whole subject of an earlier Act and is intended to be a substitute therefore. The validity of such a repeal is sustained on the ground that the last expression of the legislative will should prevail. By no process of reasoning can it be said that section 24 of the Cattle Trespass Act and Section 353, Indian Penal Code, cannot co-exist. It is also difficult to hold that section 24 was intended to substitut ' section 353. The learned counsel lastly contends that Raj Kumar (P. W. 4) Raj Singh (P. W. 5), Nathle Ram (P. W. 7), who were members of the squad, were declared hostile and the evidence of Public Witness 2 and Public Witness 3 should not have been believed. He points out that there is a serious contradiction in the statement of Balram and Roop Rain. Whereas Balram had stated that the petitioner began to beat him and the wife and son took away the buffalo Roop Ram said that the petitioner snatched away the buffalo from Balram. He also says that holding of an identification parade was necessary in the circumstances of this case. He relies on the statement of Darshan Lal Public Witness D. 10 and submits that the police originally came to the conclusion that it was a case under section 24 of the Cattle Trespass Act and, therefore, they could not take congnizance of the same. It was only after about a month that they decided that the case fell under sect ion 353, Indian Penal Code, and thereafter recorded the evidence of the witnesses. This delay according to the learned counsel made identification parade indispensible. He then refers to the statement Hari Bishan (D.W. 1), who is a time-keeper in the Government of India Press. The said witness stated that petitioner Watan Singh was shown in the register to have entered the Press at 8-00 A.M. and did not go out till evening. The learned counsel says that in view of these circumstances the prosecution has failed to establish the case against the petitioner. The learned counsel also points out that according to the prosecution evidence a large number of persons collected at the scene and yet no one had been produced. The two Courts below have gone into the entire evidence and came to the conclusion that the offerice had been proved. I am in agreement with the assessment of the evidence by the Courts below and see no cause to interfere in revision.