Full Judgment
Ryves, J.
1. This is an appeal by the Local Government from an order of acquittal passed by the learned First Additional Sessions Judge of Saharanpur. Mukhtara, a Jot, was convicted by a Magistrate of the first class, under Section 215 of the Indian Penal Code, and sentenced to one year's rigorous imprisonment. It appears that on the 6th of December, ! 1923, two bullocks, out of a number which had been sent by Narpat to graze in the jungle, failed to return. Later on the same night one of these bullocks returned with a broken rope tied round its neck. The other one did not return. It was -suspected that both the. bullocks had been stolen. A panchayat was held, and Mukhtara was certainly suspected of being, if not the thief, at any rate cognizant of who the thieves were. He promised to recover the bullock on payment of Rs. 30. He received the money and three days afterwards produced the- bullock. On the 9th of December, Narpat made a report, of' the circumstance at the police station, and he said significantly that he had come to make a report because ''the people had made it their business.' Mukhtara's defence was-a total denial of everything. He said the whole of the prosecution evidence was false from beginning to end. The trying magistrate found that there was reliable evidence on which he could hold that the bullock had been stolen. He found it proved that Mukhtara received the Rs. 30 on the understanding that he would bring back the bullock. He found that Mukhtara must have known who the actual thieves were, and that he-took no effort to get them apprehended. The fact that he was able to get hold of the bullock and bring it back, shows that lie knew where the bullock could be found. The inference-is irresistible that he knew who the thieves were. There is a considerable amount of suspicion (to say the least of it) that-Mukhtara himself was the thief, or one of the thieves. But the Magistrate did not take that point into consideration,,, holding that, according to the case of Queen-Empress v. Muhammad Ali (1900) I.L.R. 23 All. 81, the thief himself could not be convicted under Section 215.
2. On appeal the learned Additional Judge found that there-was no evidence on the record to show that theft had been-committed in respect of these bullocks, and held that it was possible that Mukhtara took the money not knowing where-the bullock was to be found, and, after due search, was lucky-enough to find the missing animal. In our opinion the learned Judge is not correct in saying that there is no evidence to show that theft was committed. We agree with the trial court that the theft of the bullock is proved. We agree with him that Mukhtara took Rs. 30 in order to bring back the bullock which he knew was stolen, and that he obviously took no steps to bring the thieves to justice. He was rightly convicted under Section 215. We doubt whether the case-reported in 23 Allahabad was rightly decided. We allow the appeal, set aside the order of acquittal, and restore the order of the trial court. Any term of imprisonment which Mukhtara has already served, will be deducted from the one year's-imprisonment which he has been awarded.
Walsh, Acting C.J.
3. I agree. T think the inference is; irresistible that the bullocks were stolen and, that the thief was the present accused. Mr. Sinha has said everything that can be said for him, which is not much. I agree as to the decision in 23 Allahabad. I am definitely of opinion that it is not good law and ought not to be followed. The learned Judge who decided it was probably embarrassed by the fact that there had been a conviction against the thief for both offences. But what he appears to have overlooked is this. Take the ordinary case of a man against whom suspicion is strongly entertained, as in this case. The complainant may be in doubt as to whether he is the guilty person or whether he is not, but he does not mind so long as the person he suspects agrees to return the animal for a consideration. Can it be seriously suggested that when the charge under Section 215 comes into court, and the complainant confines his allegation as regards the theft to mere suspicion, the accused can be heard to say: 'The complainant is wrong to confine his allegation to mere suspicion. I am the thief. T have always been in a position to confess the theft, and if it suited my purpose, to provide the complainant with means for proving my guilt. But the High Court has decided that this section does not apply to the thief, and T being the thief, it does not apply to me, and I am entitled to an acquittal.' It seems to me that this would be a reductio ad absurdum. It cannot be a defence to the charge of accepting money for returning stolen property, that the person who takes the money is himself the thief.