THOPPULAN Vs. SANKARANARAYANA IYER

JUDGEMENT

(1.) It seems clear to me that the conviction for theft cannot stand. This had to be more or less conceded by the learned Pleader for the complainant and the Public Prosecutor. The facts found are that the trees were in the possession of the 9th accused, though it is also found that the complainant was jointly interested in the trees. Subudhi Rantho v. Balarama Pudi 26 M. 481. is authority showing that in such a case the possession will be taken to be exclusively that of the tenants.

(2.) Then I am asked to follow Subudhi Rantho v. Balarma Pudi 26 M. 481. to the full extent and convert the conviction to one under Section 403 or 424 of the Indian Penal Code. I think to do so in this case would be unduly hard on the accused. The questions that would arise under those Sections have not been considered in the trial for theft. To distort the findings now before me so as to give them such an aspect as to convert them into findings under Section 403 or 424 would, as I have already said, be prejudicing the accused instead of doing substantial justice.

(3.) I will, therefore, quash the sentences of the lower Courts and order the fine to be refunded if it has been paid.