JUDGMENT
H.K. Chaudhuri, J.
1. The two petitioners, who are contractors by profession, were convicted by the Assistant Sessions Judge of Biharsharif under Section 395 of the Indian Pena Code and sentenced to rigorous imprisonment for two years and also to a fine of Rs. 2,000/- each, in default, to one year’s further rigorous imprisonment each. The learned Judge directed that out of the fines, if realised, a sum of Rs. 2000/- was to be paid to the complainant. In appeal the learned Additional Sessions Judge of Patna upheld the conviction. As to the sentence he set aside punishment of imprisonment and maintained the fine. The present application is directed against this conviction and sentence.
2. To the west of the main road of Rajgir near the famous kunds there was a sangat on ghairrnazrua malik plot No. 5028 know as the Sangat of Rajauli Mahant consisting of a few rooms, verandahs and a compound wall made of bricks and muds with fixtures and furniture. The sangat was managed by Bhagwan Das, the complainant, on behalf of the Mahanth. On 20-10-56 the petitioners were found demolishing the walls and other structures of the sangat with the help of 30 or 40 labourers. The case of Bhagwan Das is that when he protested against this high-handedness he was pushed away by the petitioners. The materials of the demolished wall, the fixtures and the furniture were thereafter loaded in carts and carried away from the site by the petitioners. According to the complainant, this Act of vendalism and loot was committed on the Pretext that a car park was to be built on the site in view of the impending visit of the Prime Minister of India and some foreign dignitaries to Rajgir.
It is said that work of demolition continued for two days more and the major portion of the Sangat was demolished. A complaint in regard to the occurrence was filed by Bhagwan Das (P. W. 1) before the Sub-divisional Officer at Bihar on 22-10-56. The learned Sub-divisional Officer sent the case for inquiry to Mr. S. Roy (P. W. 6), a Deputy Magistrate and Deputy Collector, The officer visited the place and held a local inquiry.
His report was that Plot No. 5028 had been taken up for improvement of the Kund area to enable construction of a car park by the District Engineer, Patna, that allotment of fund for the construction work had been received from the Government and that steps had been taken to acquire the land under the land acquisition proceedings. He also reported that a tender for construction of a car park at the site of the Rajauli Sangat had also been invited by the District Engineer, Patna, and that Sheodeni Singh, one of the petitioners, had filed tender for the work.
According to the inquiring officer, the tender had not been finally accepted nor any work order issued and hence the petitioners had no right to demolish the structures. On the spot the inquiring officer found no building except one thatched house consisting of two sub-rooms thatched with straw. Around these two rooms he found traces of portions of the demolished buildings which had been removed.
He came to the conclusion that the allegation that Sheodeni Singh and others actually demolished some portions of the buildings of the sangat without obtaining permission from anybody was true and that a prima facie case had been made out against the petitioners under Sections 380, 427 and 448 of the Indian Penal Code, In his report, the inquiring officer referred to a letter dated 9-11-1956 (Exhibit 3) from the District Engineer of Patna in which the latter had stated that although he had recommended Sheodeni Singh for the work of constructing the car Park the tenders were still pending and no order to start the work had till then been issued to him.
He further stated that no order had been issued at all for demolition of the huts etc. of the Mahanth of Rajauli. He clearly stated that if damage to the property of the Mahanth had been done by the contractors it had been done at their own risk and responsibility. As regards the acquisition proceedings he observed that they were still pending and that possession had not been granted to him by the land acquisition officer to enable him to start the work on that land.
3. The Magistrate before whom the trial proceeded took the view that a Prima facie case of dacoity under Section 395 had been made out against the petitioners. He thereupon committed them to the court of session with the result stated above.
4. The defence was a plea of innocence. The petitioners alleged that they had been falsely implicated in the case as the complainant feared that the Government would acquire the Plot through the instrumentality of the contractors as the land was recorded as ghairmazrua malik in the khatian. Petitioner No. 2 further alleged that he had been implicated as he was a joint contractor with petitioner No. 1.
5. Both the Courts below came to the conclusion that the petitioners had without any authority demolished the structures of the sangat and removed the materials. The learned Additional Sessions Judge observed, however, that the account of the occurrence given by the prosecution witnesses was very exaggerated. He held that there was no satisfactory evidence to show that the plot contained massive or substantial Pucca buildings. He found that there stood only a few huts and a corn-pound wall on the plot. He was further doubtful as to whether the loot or removal of the materials continued for three days. The story that the complainant had been pushed by the petitioners was also disbelieved. Finally, he observed:
From the above analysis of the evidence it is clear that these contractors who were given the work of preparing a car park ground also demolished a portion of the compound wall of this Sangat and removed a few huts standing there….
In my opinion it was not a case of desperate robbery committed by a gang of dacoits, but the work of two contractors who in the zeal while cleaning the ground for preparing a car park demolished a portion of the compound wall of the Sangat and removed certain ugly looking huts and this they appear to have done quickly because of the impending visit of the Prime Minister of India and other foreign dignitaries.
Holding that the petitioners were guilty of demolition and removal of articles of some value from the sangat without there being any order for acquisition of the lands by the Government the learned Judge took the view that the dacoity, if at all, was of a very technical nature.
6. Mr. J.N. Verma has not challenged the findings of fact arrived at by the learned Additional Sessions Judge. He contended, however, that the Courts below were in error in holding that the case, having regard to the circumstances under which the demolition of the structures and the removal of the articles took place, came within the ambit of Section 395 of the Indian Penal Code. Mr. Gokhulanandan Prasad, who appeared on behalf of the complainant, frankly conceded that Section 395 of the Indian Penal Code had no application to the facts of the case.
Indeed, the finding of the learned Additional Sessions Judge is clear that the Petitioners did not exercise any violence or put anybody in fear when the act complained of, was committed. It has, however, been argued on behalf of the complainant that the case falls within the purview of theft as defined in Section 378 of the Indian Penal Code. It has accordingly been urged that the conviction of the petitioners may be altered to one under Section 380 of the Indian Penal Code.
7. Mr. J.N. Verma has, however, contended that the petitioners had at best incurred a civil liability and cannot be said to have committed any criminal offence. In support of this contention, he has drawn our attention to certain circumstances. He has pointed out that land acquisition proceedings had been pending in respect of the plot cm which the structures stood and that tenders had actually been invited for converting the plot along with some neighbouring plots into a car park.
Reference has been made by learned counsel also to the fact that the petitioners who are Government contractors had submitted tender for the work and that petitioner Sheodeni Singh had been recommended by the District Engineer. Learned counsel submitted that although no work order had actually been issued it is an undisputed fact that eventually a park was actually constructed on the site.
According to learned counsel, the work had been done hurriedly in view of the impending visit of the Prime Minister and other dignitaries most likely at the unofficial suggestion of the local authorities. So far as the last submission is concerned I must, however, state at once that there is not the slightest evidence in support of it.
8. In order to constitute theft, five factors are essential:
(1) Dishonest intention to take property.
(2) The property must be moveable.
(3) It should be taken out of the possession of another person.
(4) It should be taken without the consent of that person.
(5) There must be some removal of the property in order to accomplish the taking of it.
Mr. Verma has not disputed the Presence of ingredients Nos. 2 to 5. He, however, contends that having regard to the circumstances referred to earlier, it could not be said that the main ingredient of the offence, viz., dishonest intention to take property, has been proved. Now, the word “dishonestly” has been defined in Section 24 of the Indian Penal Code as follows:
Whoever does anything with the intention of causing wrongful gain to one Person or wrongful loss to anther person, is said to do that thing ‘dishonestly’.
There is not the slightest doubt that the act of the petitioners caused wrongful loss to the complainant’s master. Mr. Verma, however, contends that the mere fact that the act caused wrongful loss to the complainant’s master does not necessarily establish that the petitioners “intended” to cause this wrongful loss.’ In other words, according to learned counsel, the necessary mens rea is lacking in this case. There is no doubt that the question is not whether the act of the petitioners has resulted in any loss to the complainant but whether the necessary mens rea was responsible for the accused committing the act. Every man, however, is Presumed to intend the natural consequences of his act and it is from the consequences that the Court has often to presume the intention of the accused in doing a particular act (vide Ratanlal’s Law of Crimes, page 52, 19th edition).
As the learned author has Pointed out, motive and intention are two different things. Motive is directed to the ultimate end, good or bad, which a person hopes to secure; his intention is concerned with the immediate effects of his acts. End cannot justify the means, in other words, the motive does not justify the intention. The act that they did was clearly illegal and they must he deemed to have intended the natural consequences of their act, viz., causing loss to the complainant. I am, therefore of the opinion that the case comes within the definition of “theft” and the Petitioners are guilty under Section 380 of the Indian Penal Code. I accordingly alter their conviction from Section 395 to Section 380 of the Indian Penal Code.
9. A notice was issued upon the Petitioners to show cause why the sentences imposed upon them by the learned Additional Sessions Judge should not be enhanced. The sentences imposed upon the petitioners were clearly illegal. Having convicted the petitioners under Section 395 of the Indian Penal Code he should have imposed a sentence of imprisonment upon them. I sentence each of the petitioners to simple imprisonment for one month. The sentence of fine is unnecessary and is set aside. The application is accordingly dismissed and the rule for enhancement is made absolute.
Tarkeshwar Nath, J.
10. I agree.