Jay Mahto and Another vs Emperor

Dhavle, J.—The petitioners, father and son, have been convicted tinder Sections 411 and 379, I.P.C., respectively, and sentenced to a fine of Rs. 5, each with one week''s rigorous imprisonment in default. Haripada Sen, on whose information the case was started, had a buffalo which injured a buffalo of the petitioners.

The prosecution case was that thereupon the petitioner Kalipada Mahto seized Haripada''s buffalo and would not return it. That Haripada''s buffalo was in the house of the petitioners for several days was admitted, but the defence was that it had been made over to them by complain, ant''s brother on account of the injury caused and that when Haripada Sen, who was away at the timo, returned home, he offered the accused Rs. 10 more as further compensation while the latter demanded a larger sum. The trying Magistrate refused to believe that the buffalo had been made over to the petitioner Kalipada Mahto because Abhimanyu Sen, a brother of Haripada''s, went to the thana that evening and made a statement to the constable who was present there at the time, which the latter passed on to the officer in charge, on the following day.

But the record made by the officer in charge says nothing about the snatching away of the buffalo by the accused, and only speaks of their buffalo having been injured and their claiming compensation and the complainant''s party being

unwilling to pay any compensation because nobody knew whose buffalo had caused the injury and that they were being threatened to be assaulted by the accused persons.

The trying Magistrate upon this says, curiously enough, that "unless there was something more in the matter the case would not have been reported at the Police Station."

It is difficult to follow this observation in view of the fact that according to the learned Magistrate the sanha spoke of the complainant''s party "being threatened to be assaulted by the accused persons." The defence story of how an old buffalo was offered to the accused as compensation was put to the prosecution witnesses and denied by them.

The defence, however, brought it out from the investigating officer that they had told him that the complainant had offered an old buffalo to the accused as compensation. One would have thought that this would have been an end of the case as it obviously affects the reliability of the prosecution witnesses on a material point. The learned Magistrate, however, held that it ''simply'' showed that there was a negotiation going on between the parties for an amicable settlement but it ultimately failed." Though Abhimanyu at the thana spoke of their unwillingness to pay compensation "because nobody knew whose buffalo had caused the injury" it is quite clear from the admission of Suku Manjhi, P.W. No. 9, that it was the complainant''s buffalo that had injured the buffalo of the accused.

The findings of the learned Magistrate, therefore, on the basis of the sanha (Ex. 3) and the denial by the prosecution witnesses of the fact that complainant had offered an old buffalo to the accused as a compensation are open to exception on the face of his judgment. It is, however, not necessary to go in detail into the evidence in the case, for, as the learned Advocate for the petitioners has pointed out, the learned Magistrate himself was of opinion that.

the animal was removed and retained dishonestly and the offences under Sections 379 and 411 have been committed. Of course it is a case of a technical offence under these sections and the accused persons, it seems, thought that they could take away the animal without committing an offence.

In 15 Queen-Empress v. Nagappa 15 Bom. 344 it was held that when a person takes another man''s property, believing, under a mistake of fact and in ignorance; of law, that he has a right to take it, he is not guilty of theft because there is no dishonest intention, even though he may cause wrongful loss within the meaning of the I.P.C. The attention of the lower Courts does not seem to have been drawn to this aspect of the matter, and the learned Magistrate who had the case in Daaaulat Shaw v. Emperor AIR 1921 Pat. 390, before him proceeded to distinguish it on the very doubtful ground that

the ferrymen might riot have been able to recover the fare if they had let the passenger go without keeping his article.

The finding of the learned Magistrate that the accused persons thought that they could take away the animal without committing an offence seems to point, on the part of the petitioners, to a mistake of fact in ignorance of the law, to adopt the expression used in Queen-Empress v. Nagappa 15 Bom. 344, though in Hamid Ali v. Emperor AIR 1926. Cal. 149, which has also been cited before me, a petitioner who

was acting under a mistaken notion of law believing that the property was his, and that he had the right to take the goods until the balance of the money was paid,

was, in the absence of any dishonest intention, acquitted of a charge of theft. The learned Magistrate does not also seem to have sufficiently distinguished between the offence of the father u/s 411, and that of the son u/s 379, when he observed that the accused thought that they could take away the animal without committing an offence. The buffalo was tied in the house of the accused, but whether the animal, while there, could be said to be in the possession of the father or the son has not been properly discussed. As was said in Ram Charan v. Emperor AIR 1933 All. 437.

the mere fact that a thing is found in a house occupied by a person in common with others is no proof that he was in possession of it. To bring it home to him some additional circumstances ought to be established.

10.The point was further discussed in Kaul Ahir Vs. Emperor and later by Braund J., Abdul Rahman Vs. Emperor, . But it does not seem to me necessary to elaborate it any further because on the finding of the learned Magistrate himself as it is, namely, that "the accused persons, it seems thought that they could take away the animal without committing an offence," coupled with his treatment of the sanha and the admission of the prosecution witnesses regarding negotiations during the investigation, it is clear that the conviction of neither petitioner can be supported.

The result is that this application is allowed and the conviction and sentences passed upon the petitioners set aside. Should the petitioners or either of them have paid any part of the fines, there must be a refund on application.