Sarjoo Prosad, C.J.
1. The petitioner has moved against his conviction and sentence under Section 429 of the Indian Penal Code.
2. On 5-2-54, at about 10 A.M., a rhinoceros was shot dead at village Hahpani. The petitioner, along with a few others who have since been acquitted or discharged, were sent up for trial, under Section 429 of the Indian Penal Code and Section 25 (g) of the Assam Forest Regulation. The charge under Section 25 (g) of the Forest Regulation failed because the occurrence was found to have taken place outside the game sanctuary. The petitioner was, however, Convicted by the learned Magistrate under, Section 429 of the Indian Penal Code for having shot and killed the rhinoceros with a gun, and that conviction has been upheld by the learned Sessions Judge on appeal. The only evidence against the petitioner was that of one Sudharam Gogoi (P.W. 4) who said that he saw the petitioner firing at the rhinoceros with a single barrelled muzzle loading gun, and later the animal was found dead. The evidence of this witness has been believed by the two Courts below who have, therefore, convicted the petitioner.
3. Mr. Chaudhuri on behalf of the petitioner contends that the conviction under Section 429 of the Code cannot be sustained as the section had no application to the killing of wild animals like rhinoceros. Section 429 of the Code runs as follows:
Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffaloe, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
It is clear from the language of the section that the various animals enumerated therein are all domestic animals. A rhinoceros cannot in any sense of the term be described as a domestic animal, though sometimes in rare cases it may get domesticated'. The words 'or any other animal' in the section should) refer to animals of the same kind or class, ejusdem generis, that is to say to domestic animals, and not to wild animals. The learned Sessions Judge, in my opinion, was therefore wrong in thinking that the words 'any other animal', though quite comprehensive, would include even non-domestic animals. But that apart, the most significant words are the opening words of the section which say 'Whoever commits mischief, by killing' 'Mischief' is, therefore, an essential ingrethent of the section. What constitutes 'mischief has been defined in Section 425 of the Code, which says 'Whoever, with intent to cause or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property,..., commits mischief.' Therefore, destruction of property is essential in such a case. Where therefore no one has any property or right in an animal, the killing of that animal does not come within the meaning of Section 425 of the Code, and thus the provisions of Section 429 of the Code also will not be attracted. The learned Sessions Judge appears to have overlooked the effect of Section 425 of the Code in the interpretation of Section 429. An illustration in point is the decision in Romesh Chunder Sanyal v. Hiru Mondal ILR 17 Cal 852 where ill was held that the killing of a bull dedicated and set at large which was res nullius and in which no one had) any property, would not constitute an offence within the meaning of Section 425 of the Code. This contention of Mr. Chaudhuri, therefore, must prevail.
4. The learned Counsel for the State has submitted that at any rate an offence had been committed under Section 3 of the Wild Birds and Animals Protection Act (Act 8 of 1912) and, therefore, the conviction of the petitioner should be altered' to one under Section 4 of the Act and an appropriate sentence imposed on him. But this cannot be done for the obvious reason that there is nothing to show in this ease that there was any such notification by the Government declaring that the offence, if any, was committed in a close season, as prohibited by the law.
5. That being so, the conviction and sentence of the petitioner must be set aside and the fine, it paid, is directed to be refunded. The Rule is accordingly made absolute.