Sulaiman Shah and Others vs Emperor

Varma, J.—The eight petitioners before me have been convicted u/s 429, read with Section 34, Penal Code and were originally sentenced to suffer one year''s rigorous imprisonment each. On appeal before the Additional Sessions Judge of Muzaffarpur, the sentence of the petitioners was reduced from one year to six months.

The case for the prosecution is that on 24th May 1936, a bull was killed at Mauza Koili. This bull was branded as a bull on the occasion of the shradh of Nantun Jha''s father Mauje Jha of Koili. Both the Courts below have come to the conclusion that the petitioners before me took part in the slaughtering of the bull. Mr. Yasin Yunus, appearing on behalf of the petitioners, relying upon some reported oases, has urged that as the bull was not the property of any person, its killing could not amount to mischief and, therefore, the petitioners were entitled to an acquittal. He has referred to the case in Romesh Chuder Sannyal v. Hiru Hondal (1890) 17 Cal 852, in which it was held that a bull dedicated and set at large at the shradh of a Hindu in accordance with religious usage is not an ''object'' within the meaning of Section 295. In that case it was further held that the bull did not come within the description of moveable property mentioned in Sections 373 and 403 or property'' within the meaning of Section 425, Penal Code, and could not be the subject therefore, of theft, criminal misappropriation or mischief.

The next case referred to is Queen-Empress v. Bandhu (1886) 8 All 51. That was a case u/s 411, Penal Code, where it was held that the bull which was set at large by some Hindus according to Hindu usage at the time of performing funeral ceremonies could not be said to be ''property'' within the meaning of the Penal Code. The same view was expressed in a subsequent decision of the Allahabad High Court in Queen-Empress v. Nihal (1887) 9 All 348, but a different note has been struck in a decision of the Madras High Court in Queen-Empress v. Nalla (1888) 11 Mad 145, where their Lordships of the Madras High Court held that a bull dedicated to an idol and allowed to roam at large is not fera bestia and, therefore, res nullius, but, prima facie, the trustee of the temple has the rights and liabilities attaching to its ownership. Their Lordships observed as follows:

If, on the evidence, it appeared that the animal was turned loose after dedication to the temple and that it was actually or inferentially accepted as so dedicated on behalf of the temple, then though the animal was allowed to be at large, free from all control, it would, prima facie, be the property of the temple.

There is another case, the case in Ghanta Veeranna v. Pasupati Narsiah (1889) 1 Weir 500, which is very much similar to the case in hand in view of the findings arrived at by the Courts below. There, discussing a similar case, their Lordships observed:

Before finding that it ceased to be private property, it was necessary to see whether the funeral ceremony referred to was followed by an abandonment of all control and property over the beast. It may be that the subsequent acts of the owner amount only to a reservation of the property for the purpose of putting the animal to pious or charitable uses only, or they may amount to a dedication to a temple or a section of the public so as to vest the property in the latter. In none of these cases, it would be correct to say that the bull belonged to no one.

In this case the trial Court came to a finding in these terms:

From the overwhelming evidence that has been adduced on behalf of the prosecution, it is clear that a 2--2� months young calf was branded as bull at the shradh of the complainant''s deceased father, the late Mauje Jha, that it used to be fed and kept at his (complainant''s) own place even thereafter and it was killed by the accused because it happened to enter into and graze the accused''s kharaur, etc.

The lower appellate Court also came to a similar finding in the following terms:

I think that on account of its young age the bull in question had not been set at large to roam anywhere it liked, and had not been abandoned by the complainant perhaps like some other full-grown bulls of the village but was being taken pare of and fed by him and regarded as his property after Mauje''s shradh till the date of occurrence.

On these findings, with which I have no reason to interfere, it is dear that the bull was not the type of animal contemplated by the oases reported in Romesh Chuder Sannyal v. Hiru Hondal (1890) 17 Cal 852, Queen-Empress v. Bandhu (1886) 8 All 51 and Queen-Empress v. Nihal (1887) 9 All 348. It had not ceased to be the property of the complainant. In our own Court I have come across a decision by a Single Judge delivered just a few weeks ago in Criminal Revision No. 577 of 1936, in which Madan, J., held that even after a bull is branded at a funeral ceremony, but the owner does not abandon control of it, it cannot be treated as res nullius.

On these authorities, and concurring with the findings of the Courts below, I have no hesitation in holding that the petitioners are guilty of the offence for which they have been convicted. I would, therefore, confirm their conviction. The next question is the question of sentence. I think in a case like this the ends of justice will be met if I reduce the sentence of the petitioners to three months'' rigorous imprisonment. With this modification the application is rejected.