1. In this case the applicant has been convicted, under Section 429 of the Indian Penal Code, of the offence of maiming a mare.
2. The maiming alleged consists in this that nearly one-half of one ear of the mare was cut off by the applicant. There is no suggestion that the animal's sense of hearing has been impaired. The question is, whether such an injury amounts to maiming within the meaning of Section 429 of the Indian Penal Code. Having regard to the position of the word maiming' in that section, where it occurs in conjunction with the words 'killing, poisoning or rendering useless,' I am disposed to think that the maiming' of the section implies some permanent disability inflicted on the animal. I do not seek to give an exhaustive definition of the word maiming.' But it appears to me that involved in the word is the notion of the privation of the use of some limb or member involving a permanent injury, and not a mere disfigurement. That view is, I think, in accordance with Mr. Justice Philips's decision in Marogowdha v. Srinivasa Rangachar 12 Ind. Cas. 90 : 35 M. 594 : 21 M.L.J. 843 : (1911) 2 M.W.N. 141 : 10 M.L.T. 192 : 12 Cri. L.J. 482, where the record shows that both the ears of the animal were removed and the hearing had been permanently impaired. In Reg. v. Jeans (1844) 1 Car. & K. 539 the facts were that the prisoner pulled out part of the tongue of a horse. It was argued that that did not constitute maiming, because the injury inflicted was only of a temporary character, whereas in maiming the injury must be permanent. Mr. Justice Wightman, having consulted with Mr. Justice Patterson, allowed this argument, saying that there was no such permanent injury inflicted on the animal as would support the count for maiming. So also in Stroud's Judicial Dictionary the word is defined as a bodily harm whereby a man is deprived of the use of any member of his body, or of any sense which he can use in fighting, or by the loss of which he is generally and permanently weakened.' In Murray's Dictionary the word is defined as an injury to the body which causes the loss of a limb or of the use of it' or more widely as 'any lasting wound or injury'. The word occurs in the English Malicious Damage Act, 1857, 24 & 25 Vic, c. 97, Section 40, and in Russell on Crimes, Vol. II, p. 1827, 7th Edn., where Reg. v. Jeans (1844) 1 Car. & K. 539 is cited, it is stated in commentary upon the statute that 'to constitute a maiming, a permanent injury must be inflicted on the animal.' In this case there is no permanent injury, but a mere disfigurement, and I am of opinion, therefore, that the case does not fall under Section 429 of the Indian Penal Code.
3. The conviction must be altered to a conviction under Section 426 and the sentence must be reduced to a term of three months' rigorous imprisonment. Since the applicant has already suffered this term of imprisonment, we order him to be discharged and set at liberty.
4. I am of the same opinion.