Sharma, J. - (1.) THE applicants,chiranji-lal, Roshan, Arjun and Surjan, were convicted by the Tehsildar Magistrate, Second Class, Bayana, under sec. 323 of the Indian Penal Code and sec. 38 of Circular No. 17 of Bharatpur State, and sentenced to a fine of Rs. 50/-each, and in default to undergo one week's rigorous imprisonment each. THE case against them was that a cow belonging to Chiranji accused strayed into the field of Shyamlal (hereinafter to be referred as the complainant ). THE complainant was taking the cow to the cattle pound, but the accused fell upon him, snatched the cow from him, and gave him a beating on the 1st of December, 1948 in the town of Ruda-wal in Bharatpur District. THE defence was that Chiranji accused had no cow, and that the accused did not snatch any cow from the complanant or give him any beating. THE learned trial Magistrate found a 1 the accused guilty of both the offences, and convicted and sentenced them as above. On appeal, the learned District Magistrate, Bharatpur, set aside the conviction under sec. 323 of the Indian Penal Code, but maintained the conviction under sec. 38 of the Circular No. 17. THE sentence was reduced to a fine of Rs. 25/- each. THE accused have come in revision to this court.
(2.) I have heard the learned counsel for the applicants. The complainant has not appeared inspite of notice. It was argued by the learned counsel for the applicants that the learned District Magistrate rejected the evidence of the prosecution witnesses so far as the offence under sec. 323 of the Indian Penal Code was concerned, but for no reason accepted the evidence of these very witnesses so far as the offence under sec 38 of the Circular No. 17 was concerned. It was argued that the learned District Magistrate had not at all adverted to the evidence of the record, and had only made a passing observation that the prosecution evidence was to be believed so far as the offence under sec. 38 of the Circular No, 17 was concerned. Evidence of the Prosecution as well as defence was referred ,to, and it was argued that if the learned Magistrate had bestowed care upon the evidence on the record, it would not have been possible for him to maintain conviction under sec. 38 of the Circular No. 17 as well. I have considered the arguments of the learned counsel. There can be no doubt that the learned District Magistrate does not appear to have read the evidence of the witnesses carefully, and simply decided the case on an impression that the evidence of the witnesses at least proved the case under sec. 38 of the Circular No. 17. I find that there is documentary evidence in the shape of the register of cattle maintained by the Patwari, from which it is found that the accused Chiranji did not possess or own any cattle whatsoever, not to say of a cow. Both the lower courts have not at all mentioned this entry of the register in their judgments. There is the oral evidence of three defence witnesses, Ramjit, D. W. 2, Deshraj Singh, D. W. 6, and Nawalsingh, D. W. 5, from which it is found that Chiranji did not own or possess any cow. The prosecution witnesses, Lochansingh and Hakamsingh, who have not been believed so far as the offence under sec. 323 is concerned by the learned District Magistrate, but have been believed so far as the offence under see. 38 of the Circular No. 17 is concerned, stated at the time of the trial that only one cattle of Chiranji strayed into the field of Shyamlal, who was taking it to the cattle pound when the accused snatched it from him. They were confronted with their statements under sec 202 of the Code of Criminal Procedure, and there they stated that two cows and one calf belonging to Chiranji strayed into Shyamlal's field, and he was taking them to the cattle pound when all of them were snatched by the accused. Such sort of evidence should not, therefore, have been acted upon, but the learned District Magis-trate has not at all considered this fact in the judgment. The appellate court in a criminal case is a final judge of facts, and it is necessary for it not only to, pursue the statement of the witnesses carefully, but also to show from the judgment that the statements were read and considered. Simply saying that the evidence was read and considered would not suffice. I do not mean to say that a very eleborate discussion of the evidence is always necessary, but the appellate judgment should at least show that certain material facts, which were deposed to by the witnesses, were considered by it. In the present case, there was a flagrant contradiction in the statements of the witnesses, Hakamsingh and Lochansingh, made in sec. 202, Code of Criminal Procedure, proceedings and at the time of the trial. The learned Magistrate does not appear to have considered this contradiction at all. Again, both the lower courts have taken no note of the cattle census register. I am not satisfied that the evidence was judicially considered in this case, and that was why in this revision I had to read the statements of the witnesses, and on a consideration of it, I come to a finding that both the lower courts were wrong in holding that the case so far as the offence under sec. 38 of the Circular No. 17 is concerned was brought home to the accused without a reasonable shadow of doubt. The application is allowed, the conviction and sentence are set aside, and the applicants are acquitted. The fines, if paid, shall be refunded. .;