JUDGMENT Banerji, J.
1. This is an application for revision of an order passed by a First Class Magistrate convicting the three applicants under Section 379 of the Indian Penal Code and sentencing Saldeo to a fine of Rs. 50 and the other two applicants to a fine of Rs. 25 each or in default to undergo rigorous imprisonment For two weeks.
2. The case for the prosecution is that Jabooran Ahir, complainant, resident of village Kotwa, went to see his gram field on the morning of 11th February 1926, and found that about eight bundies of gram plants worth Rs. 4 were uprooted and stolen away. He began to trace out the theft and found that gram plants were lying scattered in the way up to the house of the accused which was situate in the same village. He found some ten plants of his field lying at the door of the accused which he picked up and was taking them to Kotwali Azamgarh to make a report but the Sub-Divisional Magistrate happened to be in his village at about 9 a.m. and he reported we facts to him orally. The Sub-Divisional Magistrate and Bachu Lal Manager of Lala Harakh Chand, proprietor of the village, immediately went to the house of the accused where cut gram plants and green gram were found in the cattle troughs of the accused. On 12th February 1926, the complainant Jabooran lodged a complaint before the Sub-Divisional Magistrate and the case was started against the accused.
3. The accused denied the charge. Saldeo accused who is chaukidar of the village stated that he had gone on his round to village Tamboli and that Baldeo accused brought the gram plants found in his cattle-trough from his own field. Baldeo stated that on his return from Gulaur he brought some gram plants from his field on the morning of 11th February and put it in the troughs of his cattle. Bansraj pleaded alibi and stated that he had gone to Jaunpur to purchase a bullock and was not at home on the 11th February. Saldeo and Baldeo are own brothers and Bansraj is their cousin. The accused produced a number of witnesses which were disbelieved by the learned Magistrate who found from the prosecution evidence that gram plants were stolen from the field of the complainant and the same were found in the cattle troughs of the accused. He found that the accused failed to prove that the gram plants were out and brought from their own fields. The learned Magistrate found the accused guilty and convicted and sentenced them as noted above.
4. In the application for revision it is urged that the case was started upon the personal knowledge of the Sub-Divisional Magistrate under Section 190(1)(c) Criminal P.C., and hence it was the duty of the Magistrate under Section 191 to inform the accused that they were entitled to have the case tried by another Court. As mentioned above the case was started on the complaint lodged by the complainant on 12th February 1926, and not on the personal knowledge of the Sub-Divisional Magistrate. The mere fact that previous to the making of the written complaint the Sub-Divisional Magistrate happened to be in the village and the complainant related the story to him orally and he inspected the locality does not bring the case within the purview of Sub-clause (c) of the section. As the Magistrate started the proceedings on the complaint, Section 190(1)(a) is applicable. Hence Section 191 was not applicable and it was not the duty of the Magistrate to inform the accused that they were entitled to have the case tried by another Court. The accused did not raise any objection to the hearing of the case by the S.D.M. who had jurisdiction to hear and determine the case.
5. It is satisfactorily proved from the evidence on record that gram crop of the value of Rs. 4 was cut and stolen from the field of the complainant on the night between the 10th and 11th of February and on the morning of the 11th February the same was found in the cattle trough of the accused.
6. There is no direct evidence on record to prove who cut and stole away the produce from the field of the complainant, though it is proved that the produce of the complainant's field was found in the cattle trough of the accused. As the stolen produce was found in the cattle trough of the accused soon after the theft, the presumption is that either they are thieves or received the goods knowing them to be stolen, unless they can account for the possession. The accused Baldeo and Saideo are own brothers and Bansraj is their cousin and they are members of a joint Hindu family. Baldeo states that he brought the gram plants from his own field, but the defence evidence on this point is not trustworthy and it fails to prove this fact. Hence in the case of Baldeo it is clear that he committed the theft and he has been rightly convicted. Saldeo who is a chaukidar states that he was out on his duty and Baldeo brought the gram while Bansraj state so that he was away from the village on that date. The learned Magistrate states in the judgment that from the statement of the patwari it is proved that Bansraj was in his village on 11th February 1926, but in the deposition of the patwari no such statement is to be found. There is nothing on record to show that Saldeo and Bansraj committed the theft or received or retained the property knowing it to be stolen. It may be that Baldeo alone stole the produce and informed Saldeo that he brought it form his own field. In my opinion the conviction of Saldeo and Bansraj is not proper and legal and they are entitled to the benefit of the doubt in Bharos Ahir v. Emperor A.I.R. 1924 All. 192.
7. I, therefore, recommend to the Hon'ble High Court that the conviction of Saldeo and Bansraj under Section 379 of the Indian Penal Code and their sentences of fine be set aside.
8. Before submitting the case to the Hon'ble High Court the explanation of the Magistrate if he wishes to furnish any should be obtained.
ORDER
9. I have heard the parties. The reference is accepted.