ORDER
B.P. Beri, J.
1. This is an application under Section 439 of the Code of Criminal Procedure directed against the judgment of the Sessions Judge, Pali, dated 6th July, 1966, who maintained the conviction and sentence of the applicants under Sections 295 and 380 of the Indian Penal Code.
2. The circumstances leading up to the present application for revision briefly stated are these: On 7th April, 1964 some ladies of Jetaran went for worship to the temple of Mataji outside Mertji Darwaja near Jagannathji-ki-Bavri, Jetaran. To their suprise they did not find the idols in the temple and even the Chabutra on which the idols stood and the steps leading to the Chabutra were found damaged. On 8th April, 1964 some Hindu residents of Jetaran made a report to the Sub-Divisional Magistrate, Jetaran that in the said temple there were idols of Seetlamataji, Achparaji, Bodarji and others and these idols were removed dishonestly from the Chabutra by some Musalmans which has occasioned an injury to the Hindu sentiments.
The Musalmans in the proximity of the said temple have recently collected stones to raise a boundary wall the report adds and it appears that they wanted to demolish the temple and assert their possession of the land on which the temple stood. The signatories of the report further said that any further interference with the said temple may occasion a great row and there was the possibility of a bloodshed. They prayed for action. The Sub-Divisonal Magistrate sent this report to the Circle Inspector of Jetaran who investigated the matter and recovered the idols of Sheetlamataji, Achparaji, Bodarji and Pagatiaji as a result of information supplied to him by accused persons Ahmed and Mohammed. The idols were got identified and eventually the two applicants before me and 3 others were prosecuted in the Court of the Munsif-Magistrate, Jetaran under Sections 295 and 380 of the Indian Penal Code. The accused did not plead guilty.
After recording the prosecution and the defence evidence, the learned Munsif-Magistrate acquitted Mohammed Ali, Gafoor Khan and Nathu Khan, and he convicted Ahmed and Mohammed to 1 year's rigorous imprisonment and to a fine of Rs. 200 each under Section 380 of the Indian Penal Code and further sentenced them to I year's rigorous imprisonment under Section 295 of the Indian Penal Code, directing that the substantive sentences of imprisonment shall run concurrently. Ahmed and Mohammed preferred an appeal before the Sessions Judge, ali, who in his elaborate and well reasoned judgment maintained their conviction and sentence. They have now presented this application for the revision of the judgment of the learned Sessions Judge.
3. Mr. Chatterji for the applicants submitted that the applicants could not be convicted under Section 380 of the Indian Penal Code as idols were juridical persons and could not be the subject matter of theft as they were not movable property. He placed reliance on In re Vadivelu Arsuthiyar, AIR 1944 Mad 77. It is correct that one or the essential ingredients of theft is that it must be in respect of movable property. The question, therefore, which emerges for consideration is whether idols are movable property or not. In support of the argument that they are not movable property, Mr. Chatterji placed reliance on the Madras case which has held that idols are juridical persons. The learned Judge of the Madras High Court was called upon to consider the question whether an idol was a person as envisaged by Section 11 of the Indian Penal Code or not.
The circumstances were that the signatures of idol of Venkatchalapati were forged and it was urged that since the idol was not a person no forgery could be committed in regard to the signatures of the said idol. The learned Judge observed that the definition of the word 'person' as given in Section 11 of the Indian Penal Code is not exhaustive and must be taken to include an artificial and juridical person as well. The idol is also a juridical person capable of owning property and, therefore, a 'person' as defined in Section 11 of the Indian Penal Code. The learned Judge was not called upon to decide whether an idol was property or not. This case, therefore, could not possibly be a direct authority on the question that has been urged before me.
On behalf of the State it was urged by Mr. A. R. Mehta that jurisprudence recognises artificial personality and it is in this sense that the legal fiction imputes personality to an idol and this is not, therefore, contrary to the concept of an idol also being property. A reference to Salmond's Jurisprudence would show that the treasure-chest of a Roman Emperor was regarded as a personality and to use the language employed by Salmond, it was 'an exercise of the legal imagination' (of, Salmond's Jurisprudence, page 342, 10th Edition). A number of artificial personalities have been recognised by law for the purposes of public policy or convenience.
However, the question whether an idol was or was not property came to be considered in a case as early as--Subbaraya Gurukal v. Chellappa Mudali, (1882) ILR 4 Mad 315, wherein the learned fudges observed, 'In the eye of the law the idols are property, and the right to deal with such property must, in the event of disputes arising, be determined by a Civil Court.'
In another case---Khetter Chunder Ghose v. Hari Das Bundopadhya, (1890) ILR 17 Cal 557, Sir Guru Das Banerjee, J., delivering the judgment of the Bench considered whether an idol could or could not be the subject of gift, it was observed, 'An idol is not mentioned as an unfit subject of gift by Hindu lawyers in their enumeration of what are, and what are not, fit subjects of gift (see Colebrooke's Digest, Book II, Chapter IV); but on the contrary the gift of an idol under certain circumstances is considered a laudable act (see the Varaha Purana, Chapter 185; etc.)' Another case where this question came up for consideration is Pradyumna Kumar Mullick v. Pramatha Nath Mullick, AIR 1923 Cal 708. Both the cases cited by me above were referred to by the learned Chief Justice while delivering the judgment of the Bench, and he observed.
'Now, the subject is abstruse and in its nature metaphysical. I have certainly no desire to be dogmatic or to find fault with the language of so great an exponent of Hindu Law as Sir Guru Das Banerjee. There may be purposes for which an idol considered with reference to the material substance of which it is composed, may be regarded as movable property. In this way it may be the subject of theft, etc. . . .' The judgment contained in Khetter Chunder's case is the opinion pronounced by no less a person than Sir Gurudas Benerjee, an eminent jurist of Hindu jurisprudence.
The learned Chief Justice delivering the judgment in Pradyumna Kumar's case has categorically expressed the opinion that an idol whether it may or may not be the subject of gift can certainly be the subject of theft. An idol which is not attached to earth is usually made of some physical substance which has mundane value. Sometimes their artistic or historic value may be quite considerable. All the same I have no difficulty in coming to the conclusion that for certain purposes an idol may be a juridical person but apart from that legal fiction an idol is also movable property which can be subject matter of theft. I am, therefore, unable to accept the contention of Mr. Chatterji that an idol could not be subject matter of theft being not a movable property.
4. The learned counsel's next contention was that in order to constitute theft an idol must be taken out of the possession of another person and the prosecution has failed to establish in whose possession the idol was. The State contends that the idols which are the subject matter of theft in the case before me were revered by the entire Hindu community in and around Jetaran and they should be deemed to be the owners of the said temple and the idols therein. The possession of me said idols was exercised by this community through the Pujaris and their agents, Mr. A. R. Mehta relies on the statement of Pratap (P. W. 5), who has stated that looking after these idols was the business of the Kumhars. That section of Hindu population which had established this temple and which worshipped the idols therein exercised its possession and looked after its maintenance through the Pujaris. Therefore, I have no doubt in holding that the possession was that of the Hindu community through its agents.
5. The next grievance of the learned counsel was that the evidence relating to theft must be excluded from consideration because these accused persons were not charged regarding the removal of idol from some body's possession nor any question on the point was put to the accused applicants under Section 342 of the Code of Criminal Procedure. The forms of charge as given in Schedule 5 of the Code of Criminal Procedure do not appear to prescribe the mention of possession as a necessary ingredient in the body of the charge. In one of the forms relating to Section 379 of the Indian Penal Code the language is, 'That you on or about the ............ day of ...... ... at .................... committed theft, and thereby committed an offence punishable under Section 379 of the Indian Penal Code, and within the cognizance of the Court of Session (or High Court)'. From this form it appears that the charge need not say in whose possession the stolen property was when the theft was committed. The learned counsel's, grievance, that the charge is defective because it does not contain the name of the person from whose possession the theft was committed, in my opinion has no substance and is rejected.
6. In regard to the argument that no question regarding possession was put to the accused the learned counsel placed reliance on Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15, Machander v. State of Hyderabad, AIR 1955 SC 792; and Dhararn Singh v. State of Uttar Pradesh 1962 All LJ 748 (SC). In Zwinglee Ariel's case, AIR 1954 SC 15 their Lordships expressed the opinion that circumstances appearing against accused should not be considered unless opportunity is given to the accused for explaining them in his examination under Section 342 of the Code of Criminal Procedure.
In Maehander's case, AIR 1955 SC 792, it was held that it was the duty of the Judges and the Magistrates to question accused properly and fairly bringing the exact case he has to meet and each material point that is sought to be made against him and affording him the chance to explain if he can and if he so desired. In Dharam Singh's case, 1962 All LJ 748 (SC), the learned Judges expressed the opinion that certain blood stained marks were found on a wall of a 'chabutra' in a murder case. From the examination of the accused under Section 342 Cr. P. C. it did not appear that any question was put to the accused in regard to the finding of the blood marks on the wall of the 'chabutra'. The learned Judges expressed the opinion that this fact should not have been used against the appellants.
The learned counsel for the State invited my attention to Moseb Kaka Chowdhry v. State of West Bengal, AIR 1956 SC 536. In this case their Lordships expressed the opinion that the judgment is not to be set aside by reason of an inadequate compliance of Section 342 Cr. P. C. unless clear prejudice was shown. If accused if represented by counsel at the trial and in appeal, it is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice. If the counsel is unable to say that his client had in fact been prejudiced and if all that he could urge is that there was a possibility of prejudice, that is not enough.
In K. C. Mathew v. State of Travancore Cochin, AIR 1956 SC 241, their Lordships have again opined that though that is not necessarily fatal, ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches. If the accused is not afforded an opportunity under Section 342 he is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked the question. In other words, he is entitled to ask the appellate Court to take the explanation, that he would have given in the first Court if he was asked about it, into consideration while weighing the evidence in just the same way as it would have done if it had been there all along.
7. Precisely put the grievance of the learned counsel is that in the course of his examination under Section 342 the circumstance that the idols were taken away from the possession of certain persons or person was not put to the accused. The same Was the grievance put by the learned counsel before the first appellate Court and he was asked as to what explanation would he have offered. This is what the learned Sessions Judge says on the subject :
'I asked the learned counsel as to what possibly the answers would have been of these accused if they had been put questions about ownership and possession of the idols. Though he did not clearly say what they would have said, but what I could conclude from the arguments was that they would have told if their explanation would have been called, that no body was in possession of the temple and the idols lying therein and none was their owner, or they would have said that the Hindus of Jetaran were neither their owners nor were in possession but some other person was in possession. I think, there could not have been any other explanation. If it is assumed that such would have been of no avail or helpful to the accused (Sic) and the same would have been the conclusion as has been drawn by the trial Court and this Court.'
According to the dictum contained in Mathew's case, AIR 1956 SC 241, the explanation was taken from the accused by the appellate Court and was considered and rejected and in my opinion rightly. The learned counsel for the applicants has not pleaded any particular prejudice in the absence of this examination before me and, therefore, the absence of any question with regard to the question of possession, in my opinion, has caused no prejudice to the applicants.
8. The nest argument by the learned counsel in connection with the theft is that no dishonest intention could be found from the circumstances of this case. The basis for this argument advanced is that these idols were either buried or dropped in the 'Baori' and no wrongful gain was obtained by the accused and, therefore, no dishonesty could be spelt out. Section 24 of the Indian Penal Code defines dishonesty. It lays down, 'Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly''.
In order to ascertain the existence or otherwise of dishonest intention it is not necessary that there must be a wrongful gain to the thief, it does not matter whether the intention of the thief was or was not to derive profit from the property; it is sufficient if the removal of movable property causes wrongful loss to the owner. It cannot be said that the idols, which are property, when they were removed from the temple caused no wrongful loss to the persons whose temple it was. The wrongful gain that was aimed at or intended by the perpetrators of crime, as disclosed by the prosecution, was indirect namely to annex the land of the temple. This was again a dishonest intention of acquiring wrongful gain.
9. Another argument raised by the learned counsel in regard to the theft was that one of the idols weighed as many as 132 kg., and it could not have been possibly removed by a single individual. 132 kg., is certainly a substantial weight and normally it will be difficult for an individual to lift it. The prosecution was originally initiated against 5 individuals and out of whom three have been acquitted and only two have been convicted. The words used in the charge are that the idols were felled down (Gira Diya) from the Chabutra. The prosecution, therefore, did not indicate in the charge the method in which the removal took place from the Chabutra itself.
It is in evidence that the steps leading to the Chabutra were found broken. Having regard to the weight of the idol of Sheetalamata it appears that the idol was dragged down the steps breaking them in the process and was buried close by. Be that as it may, the prosecution has conclusively established that an idol weighing 132 kg., was one of the idols installed in the temple. That idol was later on discovered buried away from the temple in the ground. Surely the idol was removed and having regard to the evidence and the information under Section 27 of the Indian Evidence Act given by the accused-applicant he has been found to be one of the persons who did it, even if either of these two accused-applicants by himself may not have been in a position to lift and remove the idol of that weight.
10. A general argument was also addressed by the learned counsel that Ex. D-1, a confession of Gafoor Khan s/o Ajiz Khan recorded by the Tehsildar Jetaran is verbatim the same, excepting a sentence, as the statement recorded by the Deputy Superintendent of Police contained in Ex. D-2, From this it was sought to be argued that the investigation has not been fair. The similarity of language between Ex. D-1 and Ex. D-2 is certainly an unusual feature but the confession has not been employed by the prosecution against the two applicants before me nor has it been used before the two Courts below for the said purpose. I am, therefore, unable to appreciate its direct effect on the conviction of the two applicants before me.
11. The conviction under Section 295 I. P. C. is attacked on the ground that the charge against both the applicants uses the language 'fell down' (Gira Diya) but there is no evidence on record to warrant this charge. I have already discussed to some extent this aspect of the matter. It appears to me that the demolition of the steps leading to the 'Chabutra' may have been treated as a circumstantial evidence indicative of the fact that the removal was by this process of felling or dragging down. This expression has also been used in the first information report, That cannot of course be used as a substantive evidence but the use of the expression is indicative of the fact that 'Gira Diya' meant 'removed'. There is abundant evidence to show that the idols were removed from the precincts of the temple.
12. Another argument raised in connection with the conviction of the applicants under Section 295 I. P. C. is that the charge-sheet is silent with regard to the mentioning of the ingredients of that section. I am afraid this criticism is unfounded. The charge-sheet of Ahmed is,--
vkius tkucqtdj tSrkju dsfgUnqvksa ds fnyks dks Bksl igqapku ds fy;s o iwtk ds LFkku dks u'V djus dsfy;s ;g fd;k-
A broad translation of this would be that this action of yours was intentional and done with a view to hurt the religious susceptibility of the Hindus of Jetaran and with a view to defile the place of worship. An argument was raised that this aspect of the matter was not put to the accused in his examination under Section 342 Cr. P. C. No questions to this effect have been put to Ahmed or Mohammed although this charge is clearly brought out in the chargesheet. The question which arises for consideration is as to what is the effect of this omission .
The learned counsel for the applicants emphasised that this part of the case of the prosecution must be excluded from consideration and he strongly relied on Zwinglee Ariel's case, AIR 1954 SC 15. On behalf of the State it is submitted that this omission is not such which in the circumstances of the case could have prejudiced the accused more particularly when right from the first information report to the end of the trial this question was in the fore-front. Both the accused applicants were put all the questions relating to the removal of the idols from the temple as appeared in evidence against them. The only question which has not been put was that it was done with the intention of insulting the religion of the Hindus.
As I have said in the entire fabric of the case the resentment by the members of the Hindu community of Jetaran has been expressed (Cf. Statements of Prosecution Witnesses Nos. 2, 3 and 4 and so on). Both the accused were represented at the trial. Failure to put the question of intention to the accused, therefore, in my opinion, has not prejudiced their trial.
13. Lastly, it was urged that the punishment under Section 295 I. P. C. is fine in the alternative and it was not a fit case for substantive sentence. For the offence under Section 380 I. P. C. it was urged that the accused were entitled to the benefit of Section 3 of the Probation of Offenders Act. I have given my very anxious consideration to both these arguments but I am unable to agree. The circumstances of this case apparently created an explosive situation which could have triggered off a chain of reactions producing results which may have been more lamentable and far reaching. This case, therefore, has no place for leniency in the matter of sentence or for the grant of the benefit of the Probation of Offenders Act.
14. No other point has been 'pressed before me.
15. The result is that the revision application fails and is dismissed.
Learned counsel wants leave to appeal to the Supreme Court. Leave is refused.