Mahabir Pandey vs Emperor

Macpherson, J.—This Rule has been issued to consider the conviction u/s 411, I. P. C, of the petitioner Mahabir Pandey and his sentence of two months'' rigorous imprisonment and fine.

It is established that three eousins of the petitioner, who is a Bhumihar, committed theft of two bullocks in village Chaita, thana Samastipur, and that the bullocks were found some days afterwards at the village of Jorauna in thana Singhia, in which village the petitioner was grazing his cattle and residing at the house of one Ramdhari Jha within a rasi of whose house the bullocks were found tied. The Court below have inferred that the bullocks were there in possession of the petitioner and that ho has not shown that they were not in his possession dishonestly.

It has been urged that on the findings of the first Court, which apparently have not been sec aside by the learned District Magistrate in appeal, the bullocks were not in the possession of the petitioner at all. The particular ground urged is that the petitioner was not present at the place where the bullocks were found tied though the complainant averred that he was.

Apart, however, from the question of possession by the petitioner of the stolen bullocks on which I am not sanguine that in the circumstances of the case the petitioner can succeed, it appears to me that the conviction is unsound upon another ground. I consider that the inference of dishonest possession cannot safely be, made in the circumstances of the case. The theft of the bullocks was perpetrated by the petitioner''s cousins. The petitioner was grazing his cattle at a distant place. It would not necessarily follow that he would have reason to believe that cattle brought to him by his cousins in order to pasture them| along with his own were not honestly come by. The mere fact of possession is in the peculiar circumstances of this-case not sufficient in my opinion to warrant the inference which no doubt may under the statute be made in certain circumstances that he was in possession of them dishonestly and to cast upon him the onus to displace the inference of dishonesty.

Accordingly the conviction must be set aside, the petitioner must be released from custody or bail if he is on bail, and: the fine, if paid, must be refunded.