(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 21-121962, 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?