RAM BHAROSEY Vs. STATE

JUDGEMENT

(1.) This is a revision by one Ram Bharosey who has been convicted for an offence punishable under Section 414, Penal Code, and sentenced to one year's rigorous imprisonment.

(2.) The facts found by the lower appellate Court on which the applicant has been convicted are that a calf belonging to Mithulal was lost by him on 4th September 1949. On 5th September 1949 it was sold in the weekly market by Ram Bharosey applicant to one Habibullah for a sum of Rs. 28. It was later recovered from the house of Habibullah on 6th September 1949. The lower Court has also found that Ram Bharosey failed to give any satisfactory explanation of being in possession of this calf. The explanation which Ram Bharosey gave was that the calf belonged to him, but this plea of Ram Bharosey has been disbelieved by the appellate Court and has been held to be false. These findings given by the lower appellate Court are findings of fact and the learned counsel for the applicant has not been able to show that any of them are so wrong and perverse as to require being upset. The ownership of the calf by Mithulal was held by the appellate Court to be proved from oral evidence as well as two circumstances. One circumstance was that the calf, when let loose, went to the house of the complainant, Mitthulal, and started licking the udders of the mother, cow. Learned counsel for the applicant pointed out that at one stage Mithulal had stated that he and others had driven the calf to his house but it appears that this statement had been made by Mithulal under some confusion. The trial Court seems to have realised that there was some ambiguity and, therefore, after the cross-examination of Mithulal, the Court itself put some questions in which it was clearly elicited that no one had led the calf to Mithulal's house and that the complainant and others had merely followed the calf, as it went to his house. There was therefore, nothing wrong in the lower Court taking notice of the fact that the calf when let loose went to the house of the complainant and started licking the udders of her mother.

(3.) Learned counsel for the applicant argued that the conduct of an animal was not admissible in evidence under any provisions of the Evidence Act and, therefore, it should not have been taken into account at all. In support of this proposition the learned counsel referred to a case of Said Ali Dost Mohammad v. Emperor, A. I. R. (27) 1940 Pesh, 47 decided by Almond J. C. In my opinion, the evidence about the conduct of an animal can be taken into account under Section 114, Evidence Act, as being covered by the words "course of natural events". The conduct of an animal is naturally guided by its instincts and such conduct can certainly be taken into account. The case dealt with by the learned Judicial Commissioner was slightly different as it dealt with the conduct of a dog which had been specially trained. The actions of the dog may not be considered to be its natural conduct and in such a case the conduct may or may not be admissible in evidence. In the present case, the conduct of the calf in going to the house of its master and in starting to lick the udders of its mother was obviously natural conduct and can, therefore, be taken into account.