Patna High Court
Rup Lal Singh vs Durga Prasad Dubey on 23 February, 1917
Equivalent citations: 39IND. CAS.804, AIR 1917 PATNA 459
JUDGMENT Atkinson, J.
1. This criminal revision comes before me from the order of the Deputy Magistrate of Purneah convicting the petitioner of an offence under Section 379 of the Indian Penal Code. It appears from the facts, which have been fully stated in the judgment of the learned Deputy Magistrate, that the accused on the 24th of May 1916 found the complainant's pony at large, which had broken loose from its tether to which it had been tied the previous night. The petitioner mounted the pony and took a ride on it, returning home on the 25th May, the following day, in the evening. He was assisted to mount the pony by another person who has been acquitted. The petitioner had the pony in his possession the whole of the 24th and most of the 25th of May until evening. Admittedly the pony was at large and was not within the compound or the 3table of the complainant. The only difficulty about the accused's defence is that instead of making the real defence, he put forward a dishonest defence, in the shape of an alibi, that he was in the Mufassil on the 23rd, 24th and 25th and had not even seen the pony on the occasion on which he is alleged to have ridden it, and thus shown that he was a dishonest man. Apart from that, however, I do not think that the offence of theft has been established. To constitute theft there must be an intention on the part of the person who takes a thing to steal it. I am not satisfied that the learned Deputy Magistrate had before his mind the proper issue which he ought to have tried, because he says in the course of his judgment: The issue thus is reduced to this, whether the accused peon did really take the pony in the morning of the 24th of May and come back riding on it in the evening of the 25th of May; or whether he was at Kalabalua and other places on these dates and never returned home till 26th May." With great respect to the learned Deputy Magistrate, I would say that that is not the proper issue at all. The real issue is whether the accused took the pony on the occasion in question with the intention, at the time that he took it, of depriving the true owner of the pony. The Magistrate finds at the end of his judgment that the accused peon took the complainant's pony from his (the complainant's) possession without his consent and that such taking was certainly dishonest. I have read the judgment three times very carefully and I cannot see any facts alleged from which dishonesty or intention to steal can properly be inferred. And I think that in a case of this kind, where there is a serious doubt as to whether the accused took the pony with the intention of committing theft it would be very undesirable that the conviction of the accused should be allowed to stand. No doubt the accused had the pony in his possession for two days; but notwithstanding that it is not clear that he had it in his possession with any dishonest intention. Under these circumstances I shall set aside the order of the learned Deputy Magistrate, dated the 19th of July 1916, convicting the petitioner; and direct the fine of Rs. 30 to be refunded.
2. In my view it would have been more prudent for the Magistrate to have proceeded under Section 403 instead of under Section 379. However, I am not prepared to direct that fresh proceedings should now be taken under Section 403 having regard to the circumstances of the case.