JAMIRADDIN Vs. DEBENDRA CHANDRA SAHA,

JUDGEMENT

(1.) IN this reference, the learned Sessions Judge has recommended that We conviction of the petitioners by the first Class Magistrate, Udaipur, under Section 379 I.P.C. may be set aside.

(2.) THE case against them was that on 28 -8 -59, they dishonestly took away one Britex petromax light belonging to the complainant from the shop of P.W. 2, where the complainant had temporarily kept it. A charge under Section 403 I.P.C. was framed against them. The defence of the petitioners was that the said petromax light be -longed to them, that sometime before the date of occurrence they had given the light of P.W. 2 for a function in his shop, that it appeared that the complainant Had also given a petromax light to P.W. 2, that there was a wrong exchange of the lights and the complainant had taken away the light belonging to the petitioners and had got his name inscribed on it, while the light belonging to the complainant was given to the petitioners and that all that the petitioners did on the date of occurrence was to hand over the complainant's light at the shop of P.W. 2 and to take away their own light from the said shop. They denied that they committed any criminal mis -appropriation. Both the complainant as well as the petitioners adduced oral evidence in support of the ownership of the light. The learned Magistrate found on the evidence that he was not able to come to a definite conclusion as to whether the light belonged to the complainant or to the petitioners. He found that he cannot convict the petitioners for criminal mis -appropriation. Thereupon, what he did was to find them guilty under Section 379 I.P.C. of theft stating that the petitioners had taken the light from the possession or the complainant without his consent for their own gain. He said, that he acted under Section 237 I.P.C. without framing a fresh charge under Section 379.

(3.) THE learned Sessions Judge has stated in his order of reference that as the petitioners were asserting their ownership of the petromax light when they took it away from the shop of P.W. 2, it cannot be said that the petitioners did so dishonestly and hence they cannot be held guilty under Section 379 I.P.C. There is no doubt that the Magistrate was wrong in finding the petitioners guilty under Section 379 I.P.C. In order to prove dishonesty, the prosecution had to show that the petitioners had the intention of causing wrongful gain to one person or wrongful loss to another person. Where therefore the evidence in the case was that the petitioners removed the light in assertion of their own ownership of the property, it cannot be said that the petitioners acted dishonesty. The conviction, under Section 379 I.P.C. was therefore wrong and it has to be set aside.