Kabir Shah vs King-Emperor

Ross, J.—This is an application on behalf of one Kabir Shah who has been sentenced to three months rigorous imprisonment on conviction on a charge under S. 411 of the Indian Penal Code. The case for the prosecution is that the accused was found selling a bullock belonging to the complainant for a sum of Rs. 55. The defence was that the bullook had grazed the petitioner''s field and that he was taking the animal to the pound when the complainant''s party met him on the way and asked him to release the bullock and on his refusal to do so they took him to the police station. The grounds for the application are that the judgments of the Courts below are not in accordance with law; that the defence evidence is reliable and that in any case in view of the age of the accused, the Magistrate ought to have proceeded under S. 662. It is stated in the application that the appeal was transferred to the file of the Sadar Sub-Divisional Magistrate of Monghyr and that the petitioner was not aware of the transfer and on the date fixed the Sub-divisional Magistrate called out the case and dismissed the appeal and on the petitioner''s pleader''s coming to know of it he asked the Sub-divisional Magistrate to hear him in support of the appeal but that was refused. There is no answer to this statement in the Magistrate''s explanation. But I do not see that the Magistrate could have done anything in the matter. His judgment is to the effect that "the appellant was absent and unrepresented; that he had been through the judgment and the whole record and the petition of appeal and could see no substance in any of the grounds of appeal. The case was perfectly a clear one under S. 411 of the Indian Penal Code and was proved by a mass of reliable evidence." If this judgment was signed by the Magistrate before the pleader appeared I do not see that the Magistrate could have done anything in the matter. The learned vakil for the petitioner, however, requested me to go through the evidence myself and consider the case on its merits. I have done so and can see no reason to doubt the correctness of the conviction. It is not denied that the bullock was the property of the complainant and this has been amply proved. The evidence of Nilkant Sahu, Dalip Sahu and Punit Sahu proves that the petitioner was trying to sell the complainant''s bullock. Somar Sahu proves that the accused gave conflicting accounts of his residence. Dwarka Singh the daffa-dar proves that he attempted to escape when the bullock was identified as belonging to Iswar Singh. Two witnesses were examined by the defence to prove that the field of the accused was grazed. These are both boundary witnesses but one of them has enmity with the owner of the bullock and the evidence does not seem to me to be, of much weight. But even if it was true, the fact that the field of the accused was grazed is no justification for his attempting to sell the bullock. The two witnesses who say that the accused was taking the bullock to the pound are men of no substance and the evidence of the Police officer who investigated the case shows sufficiently that this part of the defence is untrue. I hold therefore that the conviction of the accused is right.

The question remains as to the sentence. It is strongly urged that in view of the youth of the accused he should be dealt with under S. 562. The Magistrate has recorded his age as 19 years. It is true that this is first offence and that the petitioner is a young man. But S. 562 cannot be applied in a case under S. 411. The sentence of three months'' rigorous imprisonment is not excessive and I must dismiss this application. The petitioner will surrender to his bail to undergo the rest of his sentence.