JUDGMENT
Mohamad Noor, J.
1. The two petitioners Bageshwari Ahir and Jagdeo Nat have been convicted under Section 215 of the Indian Penal Code and each of them has been sentenced to eighteen months’ rigorous imprisonment and to pay a fine of Rs. 75, in default to suffer two months’ further rigorous imprisonment.
2. On appeal the conviction and sentence have been upheld by the Sessions Judge of Shahabad.
3. The facts leading up to this conviction are these.
4. One Isar Bind lost two bullocks. He had tied them to a peg at night and they were seen by him till about five gharis before dawn. In the morning they were missing. His attempts to find them out were unsuccessful. Later on, on the 20th February one of the petitioners Bageshwari went to him and according to the story of Isar Bind in the first information told him that instead of running about uselessly in search of the bullocks he should pay some money to Bageshwari and he would then find out the bullocks After some negotiations Isar Bind made over Rs. 50 to Bageshwari Ahir and Jagdeo Nat at the house of the litter. Afterwards the two petitioners did not recover the bullocks and put off the matter on some pretest or other and ultimately on the 6th March, 1931, the complainant Isar Bind lodged the present case.
5. Both the courts have found that on the pretence of helping the complainant to recover the bullocks of which he was deprived by the commissioner of an offence punishable under the Indian, Penal Code, the petitioners took money from the complainant without using all the means in their power to cause the offender to be apprehended.
6. Mr. Syed Ali Khan on behalf of the petitioners has raised a point of law which was also raised before the learned Sessions Judge. It is this that before a conviction under Section 215 can be sustained there must be evidence to show that the loss of the bullocks was by means of the commission of an offence punishable under the Penal Code: in other words, he contends that there is no evidence on the record to show that the bullocks were stolen. It is conceded by the learned Advocate on behalf of the Grown that there is no direct evidence to prove theft. The learned Sessions Judge when dealing with this part of the case has drawn an inference of theft from these facts: (1) that the bullocks were ‘tied in their legs’ on the night of the occurrence and, therefore, they could not have gone astray: (2) that they were tied to pegs and (3) that had they not been stolen the petitioners would not have promised to the complainant to find them out.
7. As to the first point, I think that an error of record has been committed by the learned Sessions Judge. There is nothing on the record to show that the legs of the bullocks (by which perhaps the learned Sessions Judge meant the fore feet) were tied. In cross-ex animation the complainant, on being asked about the number of cattle he had, stated that he had some buffaloes’ as well; and that on the night in question the fore-feet of the buffaloes were tied. The learned Sessions Judge perhaps thought that the complainant was making this statement about the bullocks.
8. About the second point, I think that the fact that the bullocks were tied to pegs does not eliminate the possibility of their having gone astray. They might have broken the rope and have gone away. Theft, cannot be inferred from the fact that they were untraceable. About the promise of the petitioners, it is enough to say that the promise which they made to find out the bullocks does not itself show that the bullocks were really stolen. They may have bargained for a search. In the statement which the complainant made in the first information, Ex. 1, he stated that Bageshwari told him that he would find out the bullocks. Therefore, in this case there is no evidence of any offence having been committed in connection with the bullocks. The contract between the complainant oil the one hand and the two petitioners on the other was something of the nature of a civil contract and, even if believed, the utmost which can be held is that the petitioners did not carry out their part of the contract, The learned Advocate on behalf of the Grown has asked us to consider whether the petitioners cannot be convicted for cheating under Section 417 or 420 of the Indian Penal Code. We are unable to entertain this at this stage. First of all, the petitioners were not charged for the offence of cheating. If they had been so charged, it would have been open to them to show that they did all they could to find out the bullocks on behalf of the complainant and their failure to trace them was, in the circumstances, beyond their control, and that when they entered into the bargain with the complainant, they had no dishonest motive. A conviction for an offence for which a particular set of facts are required to be proved cannot be converted into a conviction for an offence of which quite a different set of facts are the constituents.
9. The conviction cannot be upheld. It is set aside and the petitioners, if on bail, are discharged. If not they will forthwith be released. The fines, if paid, will be refunded.
Macpherson, J.
10. I agree. I think that these convictions are entirely unsustainable.