R.N. Misra, J.
1. This is a revision against a judgment of conviction passed by the learned Sub-Divisional Magistrate, Bhadrak. The two petitioners have been convicted under Section 379, I. P. C. and each of them has been sentenced to pay a fine of Rs. 25/- or to suffer S. I. for 5 days in default.
2. Mr. Mohanty, appearing for the accused petitioners, contends that petitioners 1 and 2 are father and son respectively, and petitioner No. 2 is a young man aged about 20. The allegation is that the petitioners, on 31-10.66, entered into the bari of the opposite party and out five bamboos from a clump which was valued at Rs. 5/-. Admittedly the petitioners and the opposite party are close relations being agnates who are also cosharers in respect of certain properties including the land from which the bamboos are said to have been re-moved. P. W. 1 the complainant in his evidence has admitted the following position:
The case land and other lands are jointly recorded in the names of Chintamani Panigrabi, Dibakar Panigrahi my father and Aparti Panigrahi the father of accused Bauli Pani-grahi. Accused Gobinda Panigrahi is the son of Bauli Panigrahi. Each cosharer has 1/3rd share. But we are separate from each other. There is no partition deed or any other paper showing partition. The rent is still paid jointly.
In the circumstances, Mr. Mobanty contends that the evidence regarding partition is absolutely meagre. Besides, this is not that type of case where one of the cosharers being separately in possession can be deemed to have grown a crop which he will be entitled to appropriate. Bimboo clumps are natural growth and the approach in the present case cannot be the same as is normally made in a crop cutting case. I think there is consider-able force in the submission of Mr. Mohanty.
3. He next contends that subsequently in another portion of the cross-examination P. W. 1 stated thus:
They (accused) finished the cutting within about 20 minutes. The bamboos were left there. Six or seven days later they took them away. None else had seen them carrying away the bamboos subsequently.
Based on this statement Mr. Mohanty has two-fold submissions. According to him, if it was the intention of the accused petitioners to cut and remove the bamboos in question they would not have severed them and allow, ed them to lie at the place for about 6 or 7 days. According to the prosecution the land was the Bari of P. W. 1. If the accused persons had the intention of cutting and removing away in any mala fide manner they would have immediately taken the bamboos and would not have left them there for being taken away by P. W. 1. In the circumstances, the first submission of Mr. Mohanty is that there was absolutely no dishonest intention and the accused persons acted on the basis of joint ownership in respect of the bamboo lump. Since dishonest intention is one of the ingredients 'for the offence of theft its absence would be presumed from the conduct, which, in the circumstances, must be taken to be the best evidence, and all what was in the mind of the accused persons at the time of cutting.
4. His second submission is that in view of the statement of P. W. 1 that no other witness saw the carrying away of the bamboos the evidence of the other P. Ws. who came to depose to the removal must be discarded. This aspect of the matter was clearly lost sight of by the learned trying Magistrate. Otherwise the evidence of P. W. 2 that he saw the removal would normally not have been accepted in view of the categorical statement of P. W. 1 that none else saw the carrying away. In the circumstances. I am prepared to accept Mr. Mohanty'a contention that no other witness saw it and merely on the statement of P. W. 1 carrying away of the bamboos 6 or 7 days after must not be accepted, Once the evidence in relation to the carrying away of the bamboos is not accepted, we are left only with the evidence relating to cutting of the bamboos, that is, severing them from earth.
5. Mr. Dhal draws my attention to the first illustration appearing in Section 378, I. P. C., that illustration is to the following effect:
A cuts down a tree on Z's land, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.
The facts of the present case and the conclusions which have been already arrived at cannot equate the present case with the statutory illustration. Mr. Dhal also cited a decision of Mr. Justice Spencer of the Madras High Court reported in 29 Ind Cas 672 : (AIR 1916 Mad 1071(1)). In re Kuttiath Odayoth Veetil Kumar Nambiar. In a very short judgment the learned Judge indicated in the following manner:
The illustration (a) to Section 378, Indian Penal Code, shows that if a tree is out with the intention of dishonestly taking it out of the possession of the person in possession, the offence of theft is complete as soon as the tree is severed in order to such taking.
Here the Appellate Court found that the accused cut the trees 'to annoy P. W. No. 1 and to get the better of him.' The conviction for theft is accordingly set aside. That for mischief will stand.
I do not think I will be able to follow the aforesaid case foe the present matter. Apart from the fact that the reasons are not indicated, it is difficult to hold that in every case where conviction for theft fails a case for conviction for mischief can be made out.
6. Bearing in view the peculiar features of this case, I think it would not be safe to convict the petitioners for the offence under Section 379, I.P.C. They are at least entitled to benefit of doubt. I would, therefore, accept the revision petition, allow the same and vacate the conviction. Fines, if paid, would be refunded.