Tyrrell, J.:— Mr. Reid on behalf of Raghunath Rai, who has been convicted of dacoity and sentenced to two years' rigorous imprisonment with a fine of Rs. 5-0-0, has pointed out that the Court below disbelieved all the evidence implicating Raghunath Rai in the offence for which he was tried, with the exception of the evidence of Karim-ud-din and Kutban. I have read the evidence of these two men. I have seldom heard a more unlikely, if not absurd, take than Karim-ud-din's. He said before the Magistrate that he was badly assaulted with lathis, but finding himself unequal to take the cows from the so-called dacoits be returned to his house. In the Sessions Court he said that be fell on the spot senseless. The witness Kutban, village chaukidar, supported the story saying he saw Karim-ud-din prostrate on the ground in consequence of his wounds. Now these wounds were the following:—
a small scratch on the small of the hack;
a simple bruise and swelling on the back of the left elbow;
a very small abrasion at the back of the root of left index finger; and
a small abrasion on the inner knee.
The falsehood of she story of these two witnesses is sufficiently exemplified by this list of hurts. I do not believe anything that Karim-ud-din and Kutban said. It is admitted that Raghunath Rai was not mentioned in the first police report, and Asalat, the owner of the cattle, did not name him before the committing Magistrate. The evidence is insufficient to prove any offence against Raghunath Rai. He is acquitted and will be released, and his fine, if paid, will be restored.
Mr. Dillon appeared on behalf of Rup Narain and Udit, who have received the same sentences as Raghunath Rai, on conviction of dacoity. Their learned counsel admitted that the evidence is sufficient to establish the fact that they went to Asalat's premises and joined in forcibly removing an ox and two cows, the property of Asalat. But Mr. Dillon contended that this offence is limited to the crime [24] of rioting punishable under s. 147 of the Indian Penal Code, and that they were wrongly convicted of dacoity. Theft is a necessary component of the offence of dacoity. If there was no element of dishonesty in the conduct of Rup Narain and Udit there would be no theft, and therefore no robbery, and therefore no dacoity. The Sessions Judge found, and no doubt rightly, that there was no intention on the part of Mr. Dillon's clients to cause wrongful gain to themselves or wrongful loss to Asalat.
While it is admitted that their conduct may have resulted in wrongful loss to Asalat, though deprivation of the possession of his cattle was not the object of the appellants, they claim the benefit of a finding by the Judge that their intention was to prevent the butchery of the cattle, which their religion taught them to be a grossly outrageous act. By s. 24 of the Indian Penal Code, the word “dishonestly” which appears in s. 378 is defined thus:—“Whoever does any act with the intention of causing wrongful gain to one person or wrongful loss to another is said to do that thing dishonestly.”
Now, if there was no intention to cause wrongful loss to Asalat, the fact that the removal of the cattle for a time might, in effect, cause him wrongful loss would not suffice by itself to make the appellants' conduct dishonest. Intention is essential, and it has been found below that the intention of the assailants was confined to preventing the slaughter of kine. On these findings of fact the appellants' conviction for dacoity is unmaintainable. On the facts in evidence they are guilty of the offence of rioting, and for that offence they must be sentenced. I set aside the conviction, and sentence under s. 395, and in lieu thereof I sentence Rup Narain and Udit to rigorous imprisonment for three months each. The appeal of Aklu upon the merits is dismissed, but his conviction and sentence under s. 395 are set aside and he also is sentenced under s. 147 of the Indian Penal Code to three months' rigorous imprisonment. The orders of fine will stand over in respect of Rup Narain, Aklu, and Udit.