ABDUL QAYUM Vs. EMPEROR

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge of Azamgarh. The facts briefly are these : Abdul Qayoom and four other Mahomedans were convicted under Section 429, Indian Penal Code and sentenced to pay a fine of Rs. 45 each for beating a buffalo which had been dedicated to a deity, with lathis and spears and causing his death. One Rameshar Ahir had arranged the dedication of the buffalo to the deity so that the epidemic of cholera, which was raging in his village, might subside as a result of the intervention of the deity. According to the postmortem examination by the Veterinary Surgeon Tufail Ahmad, death was due to the injuries on the body of the animal caused by lathis and spears. The learned Magistrate was of opinion that although the buffalo had ceased to be the property of any particular person, nevertheless he served as a stallion for breeding purposes and destruction of such an animal caused wrongful loss to the public and the act, therefore, fell within the mischief of Section 429, Indian Penal Code. The learned Sessions Judge, after a consideration of several authorities of this Court, came to the conclusion that the matter was important enough to be referred to this Court.

(2.) The learned Counsel for the accused has invited my attention to a number of authorities in support of the contention that after the act of dedication, the animal ceases to be the property of any particular person within the meaning of the law. The first case on which he takes his stand is Empress V/s. Jamura ( 84) 1884 A.W.N. 87. That was a case where a particular animal had been branded and let loose by one Chuni Lal on the death of his nephew. Brodliurst J. was of opinion that after the animal had been branded and let loose, ownership over it ceased and it was not the property of any person. In this view he held that the person who shot the animal was not guilty of any offence and he set aside the conviction. This case was followed in Queen-Empress V/s. Bandhu ( 86) 8 All. 51. That was a case of dishonestly receiving stolen property under Section 411, Indian Penal Code. The bull was, as in the previous case, set at large on the occasion of the funeral of a certain Hindu. Straight J. was of opinion that the animal was nullius proprietas and no offence of theft with respect to it could be committed. To the same effect is the case in Queen-Empress V/s. Nihal ( 87) 9 All. 348. Straight J. held: A Hindu who, upon the death of a relative, dedicates or lets loose a bull, in accordance with Hindu religious usage, as a pious act for the benefit of the soul of the deceased, thereby surrenders and abandons all proprietary rights in the animal, which thereafter is not property which is capable of being made the subject of dishonest receipt or possession within the meaning of Secs.410 and 411, Indian Penal Code.

(3.) On the other hand, the learned Crown counsel has invited my attention to the case in Queen-Empress V/s. Nalla ( 88) 11 Mad. 145 in which it was held that: A bull dedicated to an idol and allowed to roam at large is not fera bestia and therefore res nullius, but prima facie, the trustee of the temple, where the idol is worshipped, has the rights and liabilities attaching to its ownership.