Radha Mohan Ahir and Another vs Emperor

Dhavle, J.—This application in revision must be allowed. The petitioners have been convicted u/s 215, I.P.C., and sentenced to three months rigorous imprisonment each for taking Rs. 4 from one Chaturi Bind under pretence of helping him to recover his stolen cow.

The short point raised by the learned advocate for the petitioners is that there is no evidence and no finding that Chaturi''s cow was in fact stolen, or in the words of Section 215 that Chaturi had been deprived of the cow by any offence punishable under the Code. It appears that in April Chaturi missed his cow from a bathan to the west of his village where it had been let loose for grazing. He made a search but got no trace of the cow, and then lodged a sanha at the thana giving a description of the missing animal. Some five months afterwards the petitioners went to him and promised to find out the culprit for a consideration. They thus took Rs. 4 from him the following day, and at midnight on the following day again they gave him a cow to keep until his own cow was found.

The next day the chaukidar came and found that the cow left with Chaturi was a stolen cow. Chaturi was taken to the thana, where he lodged his information against the petitioners. In this information he speaks of his stolen cow, but there is no evidence that the cow was in fact stolen. The animal was only missing and there were several possibilities other than theft or some other offence to account for her non-return.

The learned Government Pleader has endeavoured to support the conviction by arguing that the petitioners are bound by their representation to Chaturi that his cow was stolen and that they were helping him to recover it; but the representation "does not itself show that the bullocks were really stolen," to quote from the similar case in Bageshwari Ahir Vs. Emperor, . It was not the case of the prosecution that any offence other than theft had led to Chaturi being deprived of his cow, and as the theft has not been established and indeed the cow might have been lost without any offence under the Indian Penal Code at all the conviction is untenable.

I set aside the conviction and sentences passed upon the petitioners.