1. The applicant Adhargir was convicted under Section 379, Penal Code by the Magistrate Second Class Amarwada, for the theft of a horse belonging to Jawaharlal (P. W. 1) and sentenced to four months rigorous imprisonment. His conviction and sentence were maintained in appeal by the Additional District Magistrate, Chhindwara.
2. The prosecution case in brief is that a horse belonging to Jawaharlal (P. W. 1) was left for grazing on 10-6-1951. The animal was missing from that date. Lula (P. W. 2), who is a servant of Jawaharlal, searched for the animal for a week. During the search, he saw a dead horse from a distance and thinking it to be the one which was missing he informed his master accordingly. Subsequently in the month of September he found his master's horse with Sawlia in village Bhanaswada and reported to his master. During the investigation the horse was seized from Sawlia on 22-9-1951, vide seizure memo (Exhibit P. 4). Sawlia had informed that he had purchased it from Ramcharan for Rs. 110/-. Ramcharan admitted to have sold this horse to Sawlia, but stated that he had purchased it from the accused Adhargir for Rs. 58/.- as per receipt (Exhibit P. 7). Ramcharan was also prosecuted along with Adhargir. He was convicted under Section 411, Penal Code by the Magistrate of the trial Court, but was acquitted in appeal by the Additional District Magistrate.
3. The accused Adhargir denied that he stole this horse. He also denied that he sold it to Ramcharan.
4. It has been held by both the Courts below on the evidence of Parmu Kotwar (P. W. 5) and Gaorishankar (P. W. 6) that the accused had visited the village Atama in the month of July 1951 and had sold the horse to Ramcharan on 11-7-1951, vide receipt (Exhibit P-7). I see no reason to disagree with the concurrent finding of facts stated above.
5. It was strenuously argued on behalf of the applicant that even assuming the facts proved, no offence of theft was committed Inasmuch as there was no dishonest intention on the part of the applicant which is a necessary ingredient of the offence of theft as defined in Section 378, Penal Code. In support of the above contention, reference was made to illustrations (f) and (g) under that section and also to the decisions in - 'Queen-Empress v. Bhandhu' 8 All 51 (A), - 'Queen-Empress v. Nihal' 9 All 348 (B), -'Romesh Chunder Sannyal v. Hiru Mandal' 17 Cal 852 (C).
6. The cases relied on by the learned Counsel for the applicant related to the theft of bulls which were let loose in accordance with the Hindu religious usage. These animals belonged to nobody, and it was held in those cases that such animal was not 'property' which was capable of being made the subject of dishonest receipt or possession within the meaning of Section 410 and 411, Penal Code. The decision in those cases, therefore, has no application to the present case.
7. The learned Counsel for the applicant also relied on a decision in - 'Rup Lal v. Durga Prasad' AIR 1917 Pat 459 (D). In that case, the accused, finding the complainant's pony at large which had broken loose from its tether to which it had been tied the previous night, mounted it and took a ride on it returning home on the following day in the evening. It was held that he had not committed the offence of theft, to constitute which there must be an intention on the part of the person to take a thing to steal it and that he might have been proceeded against under Section 403 instead of Section 379, Penal Code, The facts of the present case are different from the facts of the case cited above.
8. The learned Government Pleader argued that the horse was under the constructive possession of Jawaharlal (P, W. 1) when it was let loose by his servant for the purpose of grazing. The dishonest intention of the applicant can be inferred from the fact that he had sold it to Ramacharan.
9. Lula (P. W. 2) has deposed to the effect that his master Jawaharlal owned five horses, In the month of Jaith last one of the horses had gone astray. They were let loose for grazing in the morning. In the evening one red horse did not come home. The accused has not explained how he came in possession of this animal. From the evidence on record, both the Courts below were justified in drawing the presumption against him that he must have taken away the animal when it was let loose for grazing. The fact that he sold the animal shows that he had a dishonest intention in taking it while it was gracing.
10. In - 'Emperor v. Karsan' 4 Bom L R 626 (E), it has been held that the removal of animals grazing in open lands where the owner has driven them amounts to theft and not criminal misappropriation. So also in - 'Nga Paw Din v. The King' AIR 1938 Rang 138 (F), where the accused stole a bullock from the jungle, where it was put to graze by its master, a cartman, and then killed it for food. He was convicted of the offence of theft and mischief. I am of the opinion that the cattle turned out to graze in the pasture or jungle are still in the possession of the owner unless the contrary is shown, and the taking of such cattle is theft and not criminal misappropriation.
11. From the facts shown in the present case, the conviction of the applicant under Section 379, Penal Code is in order and it is affirmed. The applicant has undergone jail sentence for eight days. Taking into consideration, the circumstances of the case, a heavy sentence of fine coupled with the jail sentence already undergone would, in my opinion, meet the ends of justice. I, therefore, reduce the jail sentence awarded by the Courts below to the period already undergone and impose a fine of Rs. 100/- against the applicant. In default of payment of fine, he shall undergo rigorous imprisonment for four months.
12. With this modification in the sentences the revision fails and is dismissed.