1. The substantial question in this Rule is whether on the facts found the offence of theft was committed.
2. The facts are that the petitioners out down a large number of valuable fruit trees-mango, jack, areca--on the land of one Jamir who, it is said by the defence, had conveyed his right to the petitioners. In Jamir's kabuliyat there is a clause to the effect that if he out any trees he would pay to the landlord compensation at the rate of Rs. 10 per tree. It has been found that the petitioners, knowing this clause perfectly well, mala fide cut the trees in order to injure the landlord.
3. There can be no question that cutting down a large number of valuable fruit trees is a wanton act and the question in the present case is whether it amounts to theft.
4. Now it is clear from Explanation 1 to Section 378, Indian Penal Code, that as soon as a tree is severed in order to the taking thereof, theft is committed; and it has been found that the petitioners severed these trees and removed some or all of them. They do not justify having out down the trees. They say that they did not cut the trees and that if they did they had a right to. We take it that they did cut the trees. The question is whether they acted dishonestly.
5. The only reported case to which our attention has been drawn regarding the cutting down of trees is the case of Emperor v. Sabalsang 4 Bom. L.R. 936. There the subject-matter of the charge was a babul tree and Aston, J., pointed out that to out and remove such trees might be theft and was in that case to be regarded as theft because of the finding of dishonest intention of the accused person. It was held that the assertion of a bona fide belief in the claim set up by the accused ousts the jurisdiction of the Criminal Court; but it cannot be said on the facts of the present case that there was any such bona fide belief; rather the defence is a denial of cutting the trees and an assertion of claim to the land itself: But assuming that the land is in the possession of the petitioners, that does not give them a right to cut the trees which are in the possession of the landlord; because the trees cannot be dealt with by the tenants without the permission of the landlord. This is clear from the' clause in Jamir's kabuliyat. The trees were wholly and solely in the possession of the landlord and it was theft to sever them from the ground, apart from any question of possession of the land itself.
6. We think, therefore, that the conviction is correct but, having regard to the dispute which exists between these parties, we think the ends of justice will be met by reducing the term of rigorous imprisonment to one of one month in the case of each of the petitioners. The fines will stand.
7. The Rule is discharged with this variation.
8. The petitioners will be remanded to jail.