Hussain Bukhsh Mian vs Emperor

Bucknill, J.—(After setting out facts, his Lordship proceeded as follows) The complainant was a man called Babu Lal Ahir. His cow appears to have strayed away and entered a field which contained some crops. His daughter was unable by herself, she being but a very small child, to persuade the animal to come out of the place into which it had trespassed; and she ran home to tell her father. When her father came to turn the cow out it was not to be found. One of the prosecution witnesses, however, heard some noise in the fields behind his hut and he noticed the second and third applicants driving the cow through the fields. He gave information of what he had seen and several persons then went as quickly as they could to the locality, which was some few bighas away from where the accused persons lived, and there they found the cow dead and the three applicants all skinning it.

Mr. Yunus contends, and I think rightly, that so far as the second and third applicants who were convicted of both offences of theft and mischief are concerned, the circumstances do not warrant any such double convictions. The modern law on the subject appears to be quite clear that this contention is sound. In the case of Madar Saheb [1902] 1 Wei. 497 it was held that the killing of a stolen sheep cannot be indicted separately as constituting mischief; in Bichuk Ahar v. Auchuoh Bhoonea [1866] 6 W.R. (Cr.) 5 it was there held that a double sentence for theft and mischief is illegal and improper; in Emperor v. Ramla Ratanji [1903] 5 Bom. L.R. 460 it was again held that a person who steals a fowl and then kills it cannot be punished separately for the offence of theft and mischief.

I think that there can be no doubt that where theft of an animal has been committed, the mere killing of it afterwards by the person who stole it for the purpose of eating it himself cannot add another offence. In this case, therefore, I think that the two convictions recorded against the second and third applicants cannot stand. The real offence which here was committed was the theft of the cow; and its being subsequently killed and eaten by them and their friends or disposed of does not justify their being separately convicted in addition to the conviction and sentence on the charge of theft of an offence punishable under the provisions of Section 429.

With regard to the question of sentence upon these two applicants, as their conviction under the provisions of Section 429 has to be set aside, the only sentence which will stand against them will be that recorded against them in connection with the offence of theft of which they have been convicted; that is a sentence of six months'' rigorous imprisonment. Under the circumstances of this case I see no reason why that sentence should really be reduced; it was a somewhat barefaced theft and the carrying out of it shows from the evidence the determination and effrontery of these applicants.

The position, however, of the first applicant is somewhat different; he was not seen at the time when the theft was committed and there is really hardly any evidence, except of a somewhat inferential character, to show that he was present when the cow was killed. Supposing he had joined the other two after they had killed the cow and had assisted them to skin it, he would certainly neither be guilty of an offence of theft or of an offence punishable under the provisions of Section 429 of the Penal Code; whether if he had guilty knowledge that the animal had been stolen he could be prosecuted under some other section of the Indian Penal Code, I am not prepared here to say. But it is quite clear that under neither Sections 379 and Section 429, could he have been successfully prosecuted.

Now in this case, as I have said there is no direct evidence which shows that he was present either at the theft or before the cow was killed; there is only evidence to show that after the cow was dead he was assisting the two other applicants to skin it. It is true that, in the judgment of the lower appellate Court, it is stated that a head constable met the first applicant when he was in charge of a dafadar and after his name had been mentioned as one of the accused in the first information, and, on enquiring from him as an accused person what had happened, the head constable was told, so he says, by the first applicant that he (the first applicant) had slaughtered an ox which he had purchased and that the people were making an unnecessary fuss about it. Mr. Yunus has, I think, rightly pointed out that this statement although it might be regarded as of exculpatory character for one purpose, cannot be regarded as receivable in evidence for the purpose of incriminating the applicant. It is also true and it seems quite clear that neither the first applicant nor in fact any of the applicants put forward a defence which was true. They alleged, so I understand, that the animal which had been killed was one which had been purchased by them from a third party. However, whatever may be the nature of the evidence the fact remains that with the exception of the statement (which I do not think was admissible in evidence and to which I have already referred) there is nothing so far as could be pointed out to us on the record which shows that this applicant appeared upon the scene prior to the slaughter of the cow in question.

Under those circumstances, although I myself may say that I have great doubts as to whether this applicant was not really present at the time when the cow was killed. I do not think that there is sufficient evidence against him to prove that fact. In consequence the conviction and sentence which have been recorded against this applicant must be set aside and the applicant set at liberty. The fine, if paid, should be refunded to him.

Adami, J.

I agree.