Removal of attached property from the possession of a person entrusted with it, with knowledge of the attachment, amounts to dishonest removal and constitutes theft under Section 379 IPC.

WANCHOO, C. J.

( 1 ) THIS is an appeal by the State against the acquittal of Rama by the Sub-divisional Magistrate Ballabhnagar.

( 2 ) THE case for the prosecution was briefly this.

( 3 ) GHISULAL, Sales Ameen, accompanied by a number of persons, went to village ratnapur-ki-Sarai, in order to effect attachment of the property of Kalu and Bhura against whom a decree for Rs. 131/11/- was in execution. On arrival at the village, a buffalo with its calf was pointed out to the Sales-Amin, and it was attached. Thereafter, the attached cattle were entrusted to Daulatram. The Amin along with those who were with him, as well as Daulatram then left the place with the cattle. They had gone a short distance when Rama accused, who is the younger brother of the judgment-debtors arrived armed with a lathi. He hit the buffalo with the lathi and snatched the rope, with which Daulatram was leading the buffalo, from his hands. He also snatched the rope of the calf which was in the hand of another person with the result that the two animals ran away. He then left the place. The matter was first reported to the Court, and from there the report was sent to the Thana for investigation. The incident took place on 26-4-1953, and the report reached the Thana on the 2nd of May. Thereafter, the accused was prosecuted after investigation.

( 4 ) HE pleaded not guilty, and said that the whole case was false, and that no such incident took place, and that he had been implicated on account of enmity.

( 5 ) THE learned Magistrate appears to have come to the conclusion that the incident took place as alleged by the prosecution, but as it had been proved that the animals belonged to Rama, he was of opinion that no offence of theft took place, and therefore no offence of robbery under Section 392 could take place.

( 6 ) SO far as the facts are concerned, there Is, in our opinion, no doubt that the animals were attached, and were being taken away by the Superddar in company of the Amm, and others when Rama arrived on the scene and drove away the animals by hitting at them with a lathi, and thus removed them from the possession of the Superddar. This story has been proved by the evidence of daulatram, Dhanraj, Ghisulal Sales-Amin, Devisingh, and Mangilal Vakil of the decree-holder who were present at the time of the attachment as well as the taking away of the animals. There is no reason, in our opinion, for disbelieving the evidence of these witnesses. We cannot accept that these witnesses have any enmity with the accused; nor has anything been brought out in their cross-examination to suggest this. Further the evidence of Mangilal Vakil, and Dhanraj is that Rama had arrived just after the attachment had taken place, and when the attachment list was being prepared. It cannot, therefore, be said that Rama did not know that these animals had been attached. It may be mentioned that Ramas case is not that he did not know of the attachment of the animals. His case is that no such incident took place at all which we are not prepared to believe.

( 7 ) HE produced witnesses to prove that the animals belonged to him, and for purposes of this case we may accept that. He also produced one witness gangaram D. W. to state that the buffalo ran away of itself; but we are not prepared to believe his evidence in the face of overwhelming evidence for the prosecution.

( 8 ) THE next question which arises is whether the Magistrate was right in acquitting the accused on these facts. The reason why the Magistrate has acquitted him is that the animals belonged to Rama, and therefore if he removed them from the possession of Daulatram Superddar, it cannot be said that he did so dishonestly. The learned Magistrate has relied in this connection on certain cases With Which we shall deal presently.

( 9 ) SECTION 378 I. P. C. defines theft in these terms: whoever intending to take dishonestly any movable property out of the possession of any person without that persons consen