JUDGMENT : Narasimham, C.J. - The five Petitioners, viz., Sukhei Behera, Sheikh Masum, Moni Behera, Naba Behera and Sheikh Manir, were convicted u/s 429 I.P.C. for having killed a Brahmani bull on 6-11-1955. The bull was said to have been dedicated to Lord Mahadeb of Kapileswarpur by one Krishna Misra (P.W. 2). After dedication the said Krishna Misra used to pay Rs. 5/- for its maintenance. Hence it was not (sic) nullius and neither in the lower court nor in this Court was the plea seriously taken it was ownerless. 2. The motive for the killing of the animal was said to be the Petitioners annoyance at the damage caused to their crops by the same. The post mortem examination on the bull showed several scratch marks on the surface of the skin and also internal injuries to the kidneys, rectum and anus. Death was caused by shock on account of the injuries. When cross-examined the Veterinary Assistant Surgeon (P.W. 5) who conducted the post mortem examination admitted that the injury to the anus and on the eye might have been caused by vultures but that the injury to the rectum could not have been so caused. In his opinion the injury to the kidney was ante-mortem but so far as the rectum was concerned he could not definitely say whether the injury was ante-mortem or post-mortem. 3. The case against the Petitioners rests mainly on the evidence of the three eye-witnesses, namely P.Ws. 1, 3 and 4. P.W. 1 claims to have seen the assault on the bull at the earliest stages. He saw the bull tied inside the enclosure of Petitioner Manir and Petitioners Naba and Manir assaulting the animal with lathis while the other Petitioners were standing there. He did not see the giving of the fatal blows. P.W. 3 is one Sheikh Abdul who also witnessed the assault on the bull inside the enclosure of Manir, by the Petitioners the animal had fallen on the ground by that time. When he asked them as to why they were beating the bull, they replied that it had damaged their crops. P.W. 3 went to the spot again a little later with P.W. 4 Ekadesi Rana and saw Petitioners Sheikh Masum, Sheikh Manir and Sukhei Behera standing there with lathis. When he asked them as to why they were beating the bull, they replied that it had damaged their crops. P.W. 3 went to the spot again a little later with P.W. 4 Ekadesi Rana and saw Petitioners Sheikh Masum, Sheikh Manir and Sukhei Behera standing there with lathis. P.W. 4 specifically stated that he saw Petitioner Sheikh Masum thrusting a wooden peg into the anus of the animal as a result of which it died. This witness seems to be entirely unconnected with the parties and his cross-examination does not show that there was any special reason for him to falsely ascribe this atrociously cruel act to Sheik Masum. The two lower courts have believed the evidence of these eye-witnesses and the main question for : consideration is whether the concurrent findings of fact should be disturbed by this Court in revision. 4. Mr. Srinivas Misra appearing on behalf of the Petitioners urged that the Investigating Police Officer was not examined as a witness in this case and this omission has materially prejudiced the accused persons The incident took place on 7-11-1955 and it appears from the order sheet that after innumerable adjournments the learned trying magistrate on 9-9-1958 found that the case was being unnecessarily prolonged due to the absence of the Investigating Police Officer and then he decided to dispense with the evidence of the Police Officer. If it can be held that the non-examination of the Police Officer has prejudiced the accused persons in their defence, that would be a ground for setting aside the conviction and sentence and directing are trial. But in my opinion no such prejudice has been caused. The Investigating Officer, if examined, would only have proved the F.I.R. (ext. 1) and some of the contradictions brought out during the cross-examination of P.Ws. 3 and 4. Even if the F.I.R. be taken as formally proved notwithstanding his non-examination and even if the contradictions in the evidence of P.Ws. 3 and 4 as brought out during their cross-examination be said to have been established, that will not materially affect the credibility of the essential part of the prosecution case. 3 and 4. Even if the F.I.R. be taken as formally proved notwithstanding his non-examination and even if the contradictions in the evidence of P.Ws. 3 and 4 as brought out during their cross-examination be said to have been established, that will not materially affect the credibility of the essential part of the prosecution case. The only material contradiction, if any that can be said to have been brought out during the cross-examination of P.W. 3 is that before the Police he stated that only Sheikh Manir and Naba Behera were assaulting the bull whereas in his deposition before the Court he stated that all the Petitioners assaulted the animal. This contradiction may be used in favour of the remaining Petitioners, notwithstanding the non-examination of the investigating Police Officer. The contradictions brought out during the cross examination of P.W. 4 are very trivial and do not affect his testimony so far as the part played by Sheikh Masum, in thrusting a wooden peg into the anus of the bull was concerned. In my opinion, therefore, even if full allowance is given for the contradictions in the evidence of the witnesses i.e. between what they stated during trial and what they stated before the Police, the non-examination of the Police Officer would not affect the case against Sheikh Manir and Naba Behera. The lower appellate court should have further scrutinized the evidence of the eye-witnesses and come to a clear finding as to whether the case against everyone of the Petitioners have been established beyond reasonable doubt. 5. Against Petitioners Sukhei Behera and Mani Behera there is no evidence of any specific overt act. There is only a general statement by P.Ws. 1 and 4 to the effect that these two Petitioners were standing there. That would not suffice to show that they participated in the killing of the animal. They may therefore reasonably claim t benefit of doubt-specially in view of the contradictions brought out in the evidence of P.W. 3. As regards the remaining three Petitioners, namely, Naba Behera, Sheik Masum and Sheikh Manir I see absolutely no reason to disturb the concurrent findings of the two lower courts. They may therefore reasonably claim t benefit of doubt-specially in view of the contradictions brought out in the evidence of P.W. 3. As regards the remaining three Petitioners, namely, Naba Behera, Sheik Masum and Sheikh Manir I see absolutely no reason to disturb the concurrent findings of the two lower courts. So far as Sheik Masum is concerned, his conviction u/s 429 I.P.C. must be upheld because it was he who thrust the wooden peg into the anus of the bull and it was the injury caused to the anus, rectum and kidneys that was responsible for the death of the animal according to the Veterinary Assistant Surgeon. Petitioners Naba Behera and Sheik Manir merely gave lathi blows to the bull causing some abrasions and scratches on the surface of the skin and it does not appear that those blows rendered the animal useless or maimed it. Hence the offence committed by these two Petitioners would more properly be one u/s 426 I.P.C. and not u/s 429 I.P.C. 6. I would accordingly modify the order of the lower court as follows: The conviction of Petitioner Sheikh Masum, u/s 49 I.P.C. and the sentence of five months rigorous imprisonment passed on him for that offence are maintained. In view of the sentence of imprisonment the sentence of fine of Rs. 50/-. Seems unnecessary and is set aside. He should immediately surrender to his bail and serve out the sentence. The conviction of Petitioners Naba Behera and Sheikh Manir u/s 429 I.P.C. is reduced to one u/s 426 I.P.C. and the sentence of fine of Rs. 50/- passed on each of them is maintained. But the substantive sentence of imprisonment passed on them is set aside. The conviction of the remaining two Petitioners namely Sukhei Behera and Mani Behera and the sentences passed on them are set aside. They are given the benefit of doubt and are acquitted of the charge. 7. Subject to the aforesaid modifications in the convictions and sentences, revision petition is dismissed. Final Result : Dismissed