Kuppuswami Ayyar, J.
1. The appellants were convicted by the Second Class Taluk Magistrate of Sidhout for an offence punishable under Section 379 or 411, Indian Penal Code and sentenced to four months' rigorous imprisonment. Their convictions and sentences were confirmed by the Sub-Divisional Magistrate of Rajampet on appeal. P. Ws. 1, 2 and 22, who were cattle owners of Nellore District and others had sent their cattle for grazing to Badvel Taluk through P. Ws, 3, 9 and others about August 1941. On the way they had to halt at Peddapolakunta for the night. There was cheetah scare that night and one of the calves was said to have been attacked. Naturally the cattle got scattered and the next morning 8 cows and one calf were missing. Search was made by P. Ws. 1, 2 and others but they could not be traced. Three months later, on 27th November, 1941, a complaint was given. The missing cattle were all traced to P.W. 10 from whom it was elicited that they were sold to him by the accused. The accused were therefore charged for theft or for being in possession of stolen property.
2. There is absolutely no evidence to show that there was any theft. As a matter of fact in paragraph 7 of his judgment the Sub-Magistrate stated ' it is evident that the cattle now lost were not stolen but ran away and got picked and passed on to the accused.' In paragraph 13 he observed: 'I admit the cows were scared away by cheetah. The pleader for the accused argues that one cannot be convicted of theft in respect of these cows. Even when the animals escaped they still continue to belong to the owners, and if one takes them, the offence of theft is committed. As however in this case there is no evidence that the accused were seen taking them but as they sold them on to others they are convicted under Section 379 or 411, Indian Penal Code, in the alternative.' The learned Sub-Divisional Magistrate on this point observes: 'It is true there is no evidence that the appellants were actually seen taking the cows in question but they sold them to others. The appellants are persons who deal in cattle and according to D.W. 3 it is admitted that Nellore cows used to be sent to Badvel Taluk for grazing. When search was made by the graziers and P. Ws. 1, 2 and others for the cow lost, while they had been to grazing, it is quite probable that the appellants, if they did not take the cows, would have known that the Nellore cows with them belonged to the cattle owners of Nellore and were 'stolen property'.' The accused no doubt denied that they were in possession of these animals at any time or sold them.
3. As already stated, the appellants had been convicted either for theft or for being dishonest receivers of stolen property knowing or having reason to believe them to be stolen. There is absolutely no evidence to show that there was any theft in respect of these animals, and the learned Public Prosecutor is not able to point out any evidence to prove that they were stolen. The only evidence we have is that the accused were found in possession of the animals and that they sold them. There is no charge for criminal misappropriation as against them. If there is no evidence to prove that they are the thieves and if there is no evidence to prove that there was a theft in respect of these animals, the conviction will have to be set aside. The animals in this case got scattered from the herd at the time of the cheetah scare and this happened in a forest. If any person sees such an animal straying anywhere and takes it, it cannot be said that he did so with a dishonest intent. But if the person who takes it subsequently retains it intending to treat it as his own, then he will be guilty of criminal misappropriation. Property obtained by committing such criminal misappropriation would no doubt be still stolen property. But the illustration (a) to Section 114 of the Evidence Act relates only to stolen property obtained by committing theft. In the case of property obtained by criminal misappropriation no such inference could be drawn. The inference that the person who subsequently got possession of them must have known that they were stolen property cannot be drawn in such a case. Therefore from the mere fact that the appellants were found to be in possession of these cattle no inference could be drawn that they knew that they were stolen property, especially in the face of the evidence that they are cattle dealers. It might be that they purchased them from others and the mere fact that they did not give any explanation cannot by itself be taken to indicate that they must have known them to have been stolen property and got possession of the same. In these circumstances the convictions and the sentences of the petitioners are set aside and they are acquitted.