A PERSON COMMITS THEFT WHEN HE ACTS WITH THE INTENTION OF CAUSING WRONGFUL LOSS TO ANOTHER PERSON, WHICH INCLUDES KEEPING A PERSON OUT OF POSSESSION OF HIS PROPERTY WITHOUT A LEGAL RIGHT TO DO SO.

Kamla Sahai, J.

1. The petitioners have been convicted under Sec.380 of the Penal Code, and each of them has been sentenced to pay a fine of Rs. 100 or in default, to undergo rigorous imprisonment for two months. Out of the fines, if realised, a sum of Rs. 100 has been ordered to be paid as compensation to complainant Akloo Manjhi (P. W. 1).

2. The prosecution case is that Aldoo (P. W. 1) had taken a loan of a certain quantity of paddy from petitioner Budhan Singh. On the 18th May, 1958. Budhan Singh demanded repayment of the loan; but Akloo said that he was then unable to pay. Thereupon, the two petitioners took away Akloos cow which was tied in his house.

3. The defence is that petitioner Budhan had purchased the cow in question from Ambika Manjhi, nati of Akloo (P. W. 1).

4. The Courts below have accepted the prosecution case, and have disbelieved the defence. They have, therefore, convicted and sentenced the petitioners as I have already mentioned.

5. Appearing on behalf of the petitioners, Mr. Ugra Singh has raised two points. His first point is that none of the alleged eye witnesses for the prosecution can be accepted as having proved the occurrence because the alleged date of occurrence) was the 18th May, 1958, equivalent to the 15th Jeth 1365 fasli, and they have said that it took place in Baisakh. Witnesses from the village are usually ignorant about dates and months". The mere fact, therefore, that they have said that the occurrence took place in Baisakh cannot discredit the prosecution case that it took place on the 18th May, 1958. They have all described the incident as put forward in the prosecution case, and it is obvious that they have spoken about that very incident and none other.

6. The second and last point which Mr. Ugra Singh has agitated is that the petitioners cannot be held to have had any dishonest intention because their intention merely was to take possession of the cow and to keep it until repayment of the loan by Akloo Manjhi. In support of his contention; he has drawn my attention to Daulat Shaw V/s. Emperor, AIR 1921 Pat 390 and Jay Mahto V/s. Emperor. AIR 1941 Patna 383.

7. The offence of theft has been defined in Sec.378, and it is one of the necessary ingredients of the offence that the offender must have the intention of taking the thing dishonestly, "Dishonestly", as defined in Sec.24, connotes the intention of causing wrongful gain to one person or wrongful loss to another, as defined in Sec.23. So far as the Penal Code is concerned, therefore, the word "dishonestly" does not carry the popular sense of the term. When a person acts with the intention of causing "wrongful gain", i.e., gain by unlawful means, of property to which the person gaining is not legally entitled, or when a person acts with the intention of causing wrongful loss, i.e., loss by unlawful means, of property to which the person losing is legally entitled, he acts dishonestly. The later portion of Sec.23 reads :

" Gaining wrongfully and losing wrongfully-- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property".

The reference to being kept out of property undoubtedly means being kept out of the possession of property. If a man is, therefore, kept out of possession of any property belonging to him, it must necessarily be held, in view of Section 23, that wrongful loss has been caused.

8. In Daulat Shaws case, AIR 1921 Pat 390, the petitioners were agents of the lessee of a ferry ghat. On the assumption that they forcibly removed a thali from the bundle of the complainant in order to compel him to pay the proper amount of toll, his Lordship, Jwala Prasad, J., held that the petitioners acted with a view to realise the legal dues and "not with a view to make any wrongful gain out of it or to cause an