1. Phul Chand Dube has been convicted by a Magistrate of the first class under Section 411, I.P.C. and sentenced to one year's rigorous imprisonment. He appealed and the conviction and sentence were confirmed by the Additional Sessions Judge of Ghazipur. Phul Chand Dube comes up before this Court with an application for revision and challenges the propriety of the conviction and sentence.
2. The facts of the case lie within a very narrow compass and may be briefly outlined here. One Sahodar Patakh of the district of Chapra owned a bullock. His bullock was missing. This bullock, after several months, was traced in the possession of Phul Chand Dube, the applicant. The bullock was taken possession of by the police and Phul Chand Dube was prosecuted under Section 411. I.P.C., with the result which has been indicated above.
3. The learned Magistrate and the learned Additional Sessions Judge do not appear to have approached the case from the proper angle and I am not surprised that they have failed to view the matter in its true perspective. In order to bring home the guilt under Section 411, I.P.C., it is essential that some stolen property should have been found in the possession of the accused and there should have been evidence that the accused retained possession of the property either knowingly or having reason to believe that the same was stolen property.
4. Stolen property has been defined in Section 410, I.P.C. Unless the right of ownership in the property was lost to the owner by the commission of any one of the offences enumerated in Section 410, I.P.C., the property could not be said to be stolen property. In the present case the bullock was missing. No offence was committed with reference to the bullock by theft or by extortion or by robbery or by criminal misappropriation or by criminal breach of trust. The bullock in the possession of Phul Chand Dube was therefore not 'stolen property' within the meaning of Section 410, I.P.C. This being so the conviction under Section 411, I.P.C. cannot be sustained. I allow the application for revision and reverse the conviction and sentence under Section 411, I.P.C.
5. The bullock in dispute was not a derelict. The original owner had not abandoned his right to the bullock. Phul Chand Dube, who had taken possession of the bullock had no proprietary interest in the same. He claimed to be owner but the findings of the Courts below are that he had failed to establish his ownership. Phul Chand Dube after having taken possession of the bullock, attempted to dispose of the bullock by way of sale to one Bancham Singh. The bargain was struck; the price was settled; Pancham Singh was not in possession of ready money and therefore he executed a sarkhat in favour of Phul Chand Dube. It was subsequently-brought home to Pancham Singh that it was not safe to purchase this property because it might have been acquired by Phulchand Dube by theft. Pancham Singh thereupon returned the bullock to Phulchand Dube and the bullock was recovered by the police from the possession of the latter. Upon these facts there can be no doubt that an offence was committed under Section 403, I.P.C.
6. Phulchand Dube knew that the bullock did not belong to him. He made no enquiry as to real owner. He set up a title to the bullock himself and tried to dispose of it with a view to make a wrongful gain to himself and a wrongful loss to the original owner. His act therefore amounted to a dishonest misappropriation or conversion to his own use within the meaning of Section 403, I.P.C. Expln. 2 to the aforesaid section provides:
It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it: it is sufficient if, at the time of appropriating it he does not believe it to be his own property or in good faith be believes that the original owner cannot be found.
7. It has been held by the Punjab Chief Court in In,re Chandaria v. Emperor  36 P.W.R. 1911 Cr. that where a person retains in his custody animals which have strayed away from a grazing ground and there is no evidence to show that it is stolen, he is guilty of an offence under Section 403 and not under Section 411, I.P.C. There is nothing to show that Phulchand Dube is a habitual offender. He is an old man between 50 and 55 years. I sentence him to six month's rigorous imprisonment. I direct that the sentence should count from the 19th October 1928, the date of his original conviction by the Magistrate. He ought to be allowed a credit for the term that he has already served under Section 411, I.P.C. If he has served out six months or more, he should be forthwith released.