The central legal point established is that for an offence of mischief under Sec. 429 of the Indian Penal Code, the property to which mischief is caused must be the property of someone, including the public. If ownership is not established, the property may be treated as res nullius, leading to the petitioner not being held guilty of the offence.

Anant Singh, J.

1. The petitioner has been convicted under Sec. 429 of the Indian Penal Code and was originally sentenced to rigorous imprisonment for one year, but, on appeal, the sentence was reduced from one year to sis months by the learned Sessions Judge.

2. The case of the prosecution is that on 21-3-1961 the petitioner killed a bull with a bhala, when the bull was damaging brinjal crops of his master Nanoo Babu. The bull, it was stated, belonged to Ramnandan Khawas (P. W. 9) of village Basotra, but he had left it at large after branding it, for public utility. P. W. 9, however, denied his ownership of the bull and the prosecution story that he had left the bull after branding it for public, utility.

3. The two courts below have, however, held that P. W. 9 turned hostile to the prosecution in denying its story attributing the initial ownership of the bull to him and held that the bull was a public property and that it had some utility in the village.

4. Mrs. Seth appearing for the petitioner has raised a point that, on the facts found by the two courts below, the bull was a nullius proprietas and did not belong to anybody so as to bring the offence within ambit of Sec. 425, which defines "mischief" as below:

"Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief."

Section 429 punishes mischief by killing an animal like a bull. Reading the definition of mischief, it is obvious that the property to which mischief is caused must be the property of someone including the public. In the present case, the alleged owner of the bull, namely, P. W, 9, has denied that the bull had ever belonged to him. Even if it had belonged to him and P. W. 9 has falsely denied his ownership, the admitted position is that the bull was let at large and P. W. 9 never retained any control over it. There is nothing to indicate how the public came to acquire any legal right over the bull and, therefore, the bull cannot be treated to be, by any means, a public property. Mrs. Seth, in support of her contention has relied on Queen-Empress V/s. Bandhu, ILR 8 All 51, Queen Empress V/s. Nihal, ILR 9 All 348 and Romesh Chunder Sannyal V/s. Hiru Mondal, ILR 17 Cal 852. In ILR 8 All 51, it was held that the bull which was set at large by some Hindus according to Hindu usage at the time of performing funeral ceremonies could not be property within the meaning of the Penal Code and the same view was reiterated in ILR 9 All 348. A different view was no doubt taken in Queen Empress V/s. Nalla, ILR 11 Mad 145 and Abdul Qayum V/s. Emperor, AIR 1945 All 430, but in these two cases, the bull had been dedicated to a deity which had been held to be a juristic person. In the present case, there was no such dedication of the bull to any deity. There is still another case, Sulaiman Shah v. Emperor, AIR 1937 Pat 406 bearing on the question, but in this case also, the owner of the bull, even after it had been let at large as a dedicated property retained control over it and, thus, in that sense the ownership of the bull was with the person who had dedicated it.

5 In the case in hand, as I have pointed out above, the ownership of the bull either with P. W. 9 or with the public has not been established and, therefore, the bull must be treated as res nullius. In this view of the matter, the petitioner cannot be held guilty of any offence of mischief. His conviction, therefore, is bad in law. The application is allowed. The conviction and sentence of the petitioner are set aside.

Untwalia, J.

6 I agree.