YUSUF MIAN Vs. EMPEROR

JUDGEMENT

(1.) These are two connected applications in revision by three men who were convicted of offences under Section 215, I.P.C. and sentenced each to rigorous imprisonment for a period of six months and a fine of Rs. 25. According to the judgment of the lower Appellate Court there is evidence that a bullock was stolen from the house of one Sita Barai and that the applicants agreed to take a sum of money to return the bullock. There is also evidence that they did in fact take the complainant to the jungle where they pointed out the bullock tied to a tree. It is urged in these circumstances that the facts do not warrant a conviction under Section 215, I.P.C. It is said in the first place, that there is no proof that the bullock was stolen because the evidence is only to the effect that the bullock was tied up during the night and was missing next morning. It is urged that the applicant should not have been convicted unless it was proved as a positive fact that the bullock had been stolen. The words of the section are: Whoever takes or agrees or consents to take any gratification under pretence or on account of helping any person to recover any moveable property of which he shall have been deprived by any offence punishable under this Code, shall, unless he uses all means in his power to cause the offender to be apprehended and convicted of the offence, be punished.

(2.) The question therefore before the Courts below was whether the owner of the bullock had been deprived of it by an offence punishable under the Indian Penal Code. It is argued that these words mean that the bullock must have been stolen. Learned Counsel suggests that "deprive" means "taken out of the possession of." I do not think that any such narrow interpretation can be placed upon that word. To deprive a person of any article may be either to take it away from him or to prevent him from getting possession of it if he would have! done so in the normal course of events. In the circumstances of this case, even if the bullock did stray at night, although there is no reason for thinking that it did, yet the person who tied it up in the jungle was, in my opinion, depriving the owner of possession of it because normally a bullock which went away would return to its owner in the ordinary course and by being tied up it would be prevented from so doing. Learned Counsel has suggested that a person who commits criminal misappropriation does not deprive the real owner of possession of property. I cannot see that there is any force in this contention and there is no ruling which supports it. A reference has been made to the cases in Sharfa V/s. Emperor (1914) 1 A.I.R. Lah. 551, Bageshwari Ahir V/s. Emperor (1932) 19 A.I.R. Pat. 241 and Mangu V/s. Emperor in which learned Judges have remarked that it must be proved that the deprivation of pos. session was the result of an offence under the Indian Penal Code and that there can be no inference merely from the disappearance of cattle that any such offence was committed. These were all cases in which the stolen cattle were never recovered and very likely it was not a fair inference in any of these cases that the cattle had ever been stolen or misappropriated. They had strayed and they were never found and there was therefore nothing whatsoever to suggest that any person had ever taken possession of them. The facts in the present case are entirely different. The bullock disappeared and was found three days later tied in the jungle where it was pointed out by the applicants.

(3.) It seems to me that the Courts below were entitled quite fairly to make the inference that the bullock had either been stolen or misappropriated dishonestly by some person. In either case some offence was committed and that offence prevented the owner from retaining or obtaining possession of his property so that he was deprived of possession of it. Reference has also been made to the case in Ram Narain Rai V/s. Emperor . It was certainly said in that case in which the facts were not dissimilar, that criminal misappropriation could not be presumed. I do not think however that in the present case there is any question of presumption. It is a question of inference from the facts and what inference may properly be made is not a question of law but a question for the conscience of the person who is supposed to make the inference. I think therefore that it cannot be said that the Courts below were so utterly wrong in coming to the conclusion that the owner was deprived of possession of the bullock by means of an offence under the Indian Indian Penal Code that this Court should interfere in revision. It appears from the judgment that the applicants themselves promised to return the stolen bullock. It was not a case where they merely said that they would make their best endeavour to discover where the bullock was, nor a case where they ultimately failed to discover the property. From the evidence it appears that as soon as they received their money they took the owner direct to the jungle and pointed out the bullock tied up to a tree.