ingredient of dacoity,
Where several Hindus acting in concert forcibly removed an ox and two cows
from the possession of a Muhammadan, uot for tho purpose of causing " wrong-
ful gain " to themselves or " wrongful loss " to the owner of the cattle, but foe
the purpose of preventing the killing of the cows :
Held, that they could not properly bs convicted of daooity, but only of riot.
[Diss, 9 Or. L.J. 389 (390) = 5 N.L.R. 17 (18) ; 1 Ind. Gas. 800 (801) ; D., 15 A. 299
THE facts of this case sufficiently appear from the judgment of
Mr. A. H. S. Reid and Mr. C. C. Dillon, for the appellants.
 The Government Pleader (Munshi Ram Prasad), for the Crown.
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 nob absurd, tale 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
he returned to his house. In the Sessions Court he said that he fell
* Criminal Appeals Nos. 458, 501 and 526 of 1892,
A VII 92
15 All. 24 INDIAN DECISIONS, NEW SERIES [Yol,
1892 onthe spot senseless. The witness Kuiban, village chaukidar, supported
AUG. 6. the story saying he saw Karim-ud-din prostrate on the ground in conse-
quence of his wounds. Now these wounds were the following :
APPEL- a small scratch on the small of the back ;
LATE a simple bruise and swelling on the back of the left elbow ;
CRIMINAL. a very small abrasion at the back of the root of left index finger ; and
jT"T 2 _ a sma N abrasion on the inner knee.
The falsehood of the story of these two witnesses is sufficiently
2 A.W N. exemplified by this list of hurts. I do not; believe anything that Karim-
(1892) 220. u d-din and Kutban said. It is admitted thus Eighuuath Eai 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 r.ny offence against Eaghunath Eai. He is acquitted
and will be released, and his fine, if paid, will be restored.
Mr. Dillon appeared on behalf of Eup Narain and Udit, who have
received the same sentences as Eaghunath Eai, 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  of rioting punish-
able 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 Eup
Narain and Udit there would be no thef fe, 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 wrong-
ful 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 fco 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 tor dacoity is unmain-
tainable. 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 Eup 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 Eup Narain, Aklu, and Udit.
YII] QUEEN-EMPRESS V. MADHO 15 All. 26
IB 1. 25-12 l.W.N. (1892) 220. 1892
 EBVISIONAL CKIMINAL. AUGJ23.
Before Sir John Edge, Kt., Chief Justice. EEVI-
QUEEN-EMPBESS v. MADHO.* [23rd August, 1892.] CRIMINAL.
Criminal Procedure Codt, ss. 161 and 162 Statement made by a witness to polic officer .. _ __
making an investigation Use of such statement to contradict witness Use of state-
in'.nt against accused. 12 A.W.N,
A statement made by a witness under a. 161 of the Code of Criminal Procedure
tc a police officer investigating a case may be proved at the trial of such case to
contradict such witness, the witness having been first cross-examined on the point
in respect of which it is sought to contradict him. But where it appeared that,
but for the principal witness for the defence having been discredited by means of
proof of a previous inconsistent statement made by the said witness before the
investigating officer, tbe accused would have been acquitted, it was held that
this amounted to a using of such statement as evidence against the accused
within 'the meaning of s. 162 of tho Code of Criminal Procedure. Queen-
Empress v. Sitaram Vithal (1), approved.
[F.,27 A. 469 (471)= A.W.N. (1905), 64; R., 19 A. 390= 17 A.W.N, 174 (F.B.) ; 15
C.L.J. 621 = 13 Ind. Cas. 678 (681).]
THE facts of this case sufficiently appear from the judgment of
Edge, C. J.
Mr. C. G. Dillon, for the applicant.
The Public Prosecutor (the Hon'ble Mr. Spankie)', for the Grown.
EDGE, C. J. This is an application in revision. The applicant, one
Madho, was convicted of the theft of some buffaloes and sentenced to a
year's rigorous imprisonment under s. 379 of the Indian Penal Code by a
Magistrate. He appealed, and his appeal was dismissed by the Sessions
Judge. The question raised here is as to the effect of s. 162 of tbe Code
of Criminal Procedure, 1882. The case for the defence, if true, would
have shown that the buffaloes were not the buffaloes of the prosecutor.
In order to make out that case certain witnesses were called, amongst
others one Jahan. Jahan was confronted with a statement which he had
made to the police officer in the course of the investigation relating to this
theft held under Chapter XIV of the Code of Criminal Procedure, 1882.
The police officer was called and contradicted Jahan as to the statement
which  had been made and proved, apparently to the satisfaction of
the Magistrate, and in appeal to that of the Sessions Judge, that Jahan
had made a certain statement to him which at the trial be denied having
made, and that Jahan had not made a statement to him, which he made
at the trial as to how he became possessed of the buffaloes. Now, I have
no doubt that a statement to which s. 162 of the Code of Criminal Proce-
dure applies may be proved to contradict a witness called for the defence
of an accused person, that witness having first been cross-examined on the
point, and in that respect I agree with the case of The Queen- Empress v.
Sitaram Vithal (1). The question is how far further can the evidence-
of what the statement either did or did not consist of be used
against an accused ? S. 162 is quite clear, and provides that such
a statement shall not be used as evidence against the accused. A
* Criminal Revision No. 460 of 1892.
(1) 11 B. 657.
15 All. 27 INDIAN DECISIONS, NEW SERIES [Vol.
Aua. 23. statement, whether oral or written, if used in evidence may be
_ used for either one of two purposes, either to show what it does
actually contain, or to show what it does not contain. When a police
SIGNAL officer to whom a statement has been made in the course of an investiga-
CEIMINAL. tion speaks to a statement having been made, and says that that statement
~ did not contain a reference, for instance, to certain facts, that in affect is
i w iT Diving evidence of what the statement was, because it is showing that the
' ' ' statement as made did not contain a reference to those facts. It was
. ' contended by the Public Prosecutor that if a police officer on being asked
did the witness say so-and-so to you when making his statement ?"
should reply " he did," that piece of evidence should be excluded from
consideration as against the prisoners by reason of s. 162 ; but if, on the
conttary, the police officer should say " he did not," that piece of evidence
would be admissible as against the prisoner. To my mind there is no
difference ; the one statement would be as necessarily excluded by rea-
son of s. 162 as the other. The judgment of the Magistrate satisfies
me that if it had not been for Jahan's having been contradicted by the
statement which he had made to the police officer, the Magistrate
would have acquitted the prisoner. Indeed the Magistrate says in
his judgment that he did not consider the case for the prosecution
 a very probable one, and in fact he did release the prisoner on bail
though the offence was not a bailable one. I can only regard the judg-
ment of the Magistrate as showing that if it had not been for the contra-
diction afforded by the statement made to the police officer who was
conducting the investigation, he would have acquitted the prisoner. In
that view he must have treated that statement not only as discrediting the
evidence of Jahan, but as evidence showing that the whole case for the
defence was false, and consequently as .evidence against the accused. The
learned Sessions Judge, so far as I can read his mind through his judg-
ment, was influenced by the same considerations as the Magistrate, and
it appears to me that Madho, the appellant here, would most probably
never have been convicted if his witness Jahan had not been called.
Under the circumstances I must accede to this application and treat this
conviction as having been made upon evidence which, as against the
accused, was excluded by reason of s. 162 of the Code of Criminal Proce-
dure, 1882. I accordingly allow the petition, set aside the conviction, and
acquitting the prisoner, direct that he be set at liberty.
IS A. 27=- 12 A.W.N. (1892) 221.
Before Sir John Edge, Kt., Chief Justice.
QUEEN-EMPRESS v. BHUKE.*
[12th September, 1892.]
Act XI of 1878 (Arms Act), s. 19 (c)" Going armed" Presumption as to persons
found carrying arms.
Where a person is found carrying arms apparently in contravention of the
provisions of the Arras Act, it must be presumed, in the absence of proof to the
contrary, that he is carrying such arms with the intention of using them should
* Criminal Revision No. 501 of 1892.
YII] QUEEN-EMPRESS V. BHURE 13 All. 28
an opportunity of using them arise. Queen- Empress v, Alexander William 1892
explained and approved.
[Rel., 11 Or. L. J. 55 = 4 Ind. Gas. 823 (824)=U.B.R. 1909, 2nd Qr., Opium, p. 1 ;
R , 8 Or. L.J. 406 (407) = 4 N.L.R. 146 (147) ; 10 Or. L.J. 361 <362) = 3 Ind.tCas. p WVT
712 (713)-5 L.B.R. 83 ; U.B.R. (1897-1901) Vol. I, 1 (2).]
THIS was a reference made by the Sessions Judge of Farakhabad in ~
respect of an application for revision of an order of the Joint Magistrate
convicting the petitioner, one Bhure, of an offence under s. 19, clause (e) 13 4. 27=
of the Arms Act. The petitioner before the Magistrate denied possession j2 A W N
of the weapon, possession of which was  charged against him, but (jgg2) 221
this defence was abandoned before the Judge, and it was urged that the
weapon belonged to a zamindar, and that the petitioner was merely taking
it to be repaired. The Sessions Judge with reference to the case of The
Queen- Empress V.Alexander William (1) was of opinion that there should
have been evidence to show an intention on the part of the prisoner to use
the weapon should opportunity arise, and no such evidence appearing in
the record, referred the case to the High Court for orders.
On this reference the following order was passed by EDGE, C. J. :
It appears to me that the decision in the case of The Queen-Empress
v. Alexander William(l) has been misunderstood. In that case my brother
Knox acted on the prisoner's statement that he, the prisoner, was carrying
the gun for the purpose of getting it repaired. The gun did nob belong to
the prisoner. The prisoner in that case was no doubt carrying the gun,
he was not, however, carrying it as weapon, but as a parcel, and was
rightly considered not fco have been going armed. In the present case the
prisoner had in his possession a pistol, for the possession and carrying of
which no explanation such as that in the case of The Queen-Empress v.
Alexander William (1) was given, much less proved. A man who is found
going about with a pistol, gun, sword or other weapon within the definition
of " Arms " in s. 4 of Act No. XI of 1878 must, in the absence of proof
to the contrary, be presumed to be carrying it with the intention of using
it, should an opportunity for using it, arise, and, unless he is licensed to
carry the weapon and is not exceeding the terms of the license, may
properly be convicted under s. 19, clause (e) of the Act, as this man was.
I see no reason to interfere. Bhure must undergo the punishment to-
which he has been sentenced. The record may be returned.
(1 11 A.W.N. (1891) 208.
15 All. 29
INDIAN DECISIONS, NEW SERIES
is A. 29 =
15 A. 29 = 12 A.W.N. (1892) 225.
 APPELLATE CIVIL.
Before Mr. Justice Mahmood and Mr. Justice Knox.
FAZL RAB (Applicant) v. KHATUN BIBI AND OTHERS (Opposite Parties).*
[llth July, 1892.]
Muhimmndan law Shia sect Act XXXV 0/1858, ss. 2, 7, 9,10, 23 Guardian of
lunatic " The legal heir" Wife of lunatic.
One M. B., a Shia Mubammadan, was formally adjudged a lunatic under the
provisions of Act No. XXXV of 185S, At the time of this adjudication M.S.
had a wife, Z, who had had one child by him, but that child had died previously
to M.S. being adjudged a lunatic ; it did not however appear that there was any
reason precluding the possibility of further'ieeue of the marriage.
Held by Mahmood. J,, that under the law applicable to the Shia sect of
Muhammadans Z. was one of the " legal heirs " of M.S. within the meaning of
s. 10 of Act No. XXXV of 1858, and as such was excluded by the terms of the
proviso to that section from being appointed guardian of the person of her
In oases under the Lunacy Act (Act No. XXXV of 1858) the High Court as a
Court of appeal will not take upon itself tha duty of deciding who may be the
fittest person to appoint as guardian of the person or property of a person
adjudged a lunatic thereunder. That duty should rest with the Courts to which
it is entrusted by the Act.
Held by Knox, J., that upon the general circumstances of the case the wife
was not a fib person to be appointed as guardian of fhe lunatic ; sed quccre
whether she was within tho meaning of s. 10 of Act No. XXXV of 1858, " the legal
heir" of the lunatic and therefore statutorily disqualified.
,IR., 2 Ind. das. 671 (673.]
THE facts of this case are fully stated in the judgment of Mabmood, J.
Mr. Hameed Ullah and Mr. Abdui Raoof, for the appellant.
Mr. Abdul Majid, for the respondents.
MAHMOOD, J. Upon the preliminary facts of this case the following
table showing the relative position of the parties throws light:
Fazl Rab, petitioner, appellant.
Muhammad Badik (son). Mst. Khatun (widow), objeotor,
Mst. Zi,inab Bibi (wife), objector.
 The family is admitted to belong to the Shia sect.
Tho litigation from which this appeal arises was commenced by Fazl
Kab, the paternal uncle of Muhammad Sadik (who has been found to be a
lunatio) by an application under s. 3 of the Lunacy Act (Act No. XXXV of
1858) claiming to be appointed guardian of the person and manager of the
property of the lunatic.
The application was opposed by two counter-applications, one prefer-
red by Musammat Khatun, the mother, and the other by Musammat
Zainab Bibi, the wife of the lunatic. The learned District Judge dis-
allowed the applications of the appellant Fazl Bab and of Musammat Zainab
First Appeal No. 15 of 1891 from an order of J.J. McLean, Esq., District Judge
of Azamgarb, dated the 20th December, 1891.
YII] FAZL RAB V. KHATUN BIBI 15 All. 32
Bibi, but granted that of Musammat Khatun, the mother of the lunatic, 1892
and appointed her manager of his estate and also guardian of his person. JULY 11.
From that order an appaal (F. A. f. O. No. 114 of 1889) was preferred
by Fazl Bab, and for the reasons stated in my judgment in that appeal APPEL-
the order of the District Judge was set aside and the case was remanded LATE
for re-trial under s. 562 of the Oode of Civil Procedure. CIVIL.
The case has been tried upon the merits and the learned Judge has
again rejected the application of Fazl Eab, holding that he was" an 15 A. 29 =
altogether unfib person to have charge of the lunatic's property," or to be 12 A.W.N.
appointed guardian of his person, and, moreover, that being a legal heir (1892) 225.
of the lunatic within the meaning of s. 10 of the Lunacy Act (Act No.
XXXV of 1858). he could not be appointed guardian of the lunatic's
parson. The Judge then appointed Musammat Khatun, the mother of
the lunatic, as manager of his estate, and his wife, Musammat Zainab,
guardian of his person, declaring at the same time that he did not think
that she was" the safest person to have charge of the property."
From this order the present appeal was preferred by Fazl Rab who
impleaded Musammat Khatun and Musammat Zainab Bibi as respondents.
During the pendency of the appeal Musammat Khatun died and the appel-
lant impleaded the lunatic Muhammad Sadik himself as the legal represent-
ative of his deceased mother Musam-[3l]mat Khatun. The application
for such substitution of the name of Muhammad Sadik as representative of
the deceased respondent was the subject of consideration by Mr. Justice
Straight and myself, and for the reasons stated in our order of the 24th
of February 1892 we appointed the .Registrar of this Court as the
guardian ad litem of the lunatic Muhammad Sadik.
Upon the retirement of Mr. Justice Straight the case, by order of the
learned Chief Justice, was laid before my brother Knox and myself, and
we by our order appointed Mr. Porter as guardian ad litem instead of the
Registrar, and tbe case has thus bean heard by this Bench. The conten-
tion raised in the memorandum of appeal, so far as it relates to the ap-
pointment of the deceased Musammat Khatun as manager of the lunatic's
property, need no longer be considered, and Mr. Hameed Ullah in arguing
the appeal before this Bench has confined himself to the rest of the case.
The learned counsel has contended, first, that the lower Court has failed
to comply with the provisions of the law in conducting the inquiry regard-
ing tbe lunacy of Muhammad Sadik ; secondly, that Musammat Zainab
by reason of being a parda-nashin lady and the fact of being the wife of
the lunatic, aud as such one of his heirs, is unfit and legally ineligible for
guardianship of the person or property of tbe lunatic ; thirdly, that the
appellant Fazl Rab is a fit and proper person to be appointed manager of
the lunatic's property ; and fourthly, that even if he be held to be unfit
for suoh managership the lower Court should have appointed the Court of
Wards or some other capable person as guardian and manager of the
lunatic's person and property.
Upon all these points the appeal has been resisted by Mr. Abdul
Majid on behalf of the respondent, Musammat Zainab, and by Mr. Porter
as guardian ad litem of the lunatic, Muhammad Sadik, and)I proceed to
deal with each of these points in the order in which I have stated them.
As to the first point, which relates to the mental condition of Muham-
mad Sadik, the learned counsel for the appellant has failed to point out
any irregularity or illegality in the conduct of the  inquiry by the
learned District Judge, who, after taking professional medical evidence
and his own personal observation of Muhammad Sadik, has adjudged him
15 All. 33
INDIAN DECISIONS, NEW SERIES
1892 to be of unsound mind and incapable of managing his affairs within -the
JULY 11. meaning of ss. 2 and 9 of the Lunacy Act (Act No. XXXV of 1858). It is
not shown that any evidence produced upon this point was rejected ^by
APPEL- the learned District Judge, and there is everything in the circumstances
LATE f fc Qe case to justify the conclusion at which he has arrived, a conclusion
CIVIL which indeed is not seriously contested by the appellant, whose petition
' itself proceeds upon the allegation that Muhammad Sadik is of un-
15 A. 29= sound mind and incapable of managing his affairs.
12AW.N. The second point is by far the most important and difficult in the
(1892) 225. case. Mr. Hameed Ullah's contention on behalf of the appellant is that
the respondent, Musammat Zainab, being tbe wife of the lunatic, is his
legal heir, and therefore falls under the prohibition contained in the
proviso to s. 10 of Act No. XXXV of 1858 which lays down " that the
legal heir of the lunatic shall not in any case be appointed guardian of
his person." On the other hand, Mr. Abdul Majid, for the respondent,
contends that under the Shia law which governs the case, a childless
wife is not entitled to inherit any share in the immoveable property of her
husband, that in the present case there is no allegation or proof that the
lunatic is possessed of any immoveable property, and that therefore there
was no illegality in Musammat Zainab's appointment as guardian of the
person of her lunatic husband. This contention is again met by the
allegation that Musammat Zainab has had a child by the lunatic, Muham-
mad Sadik, and that she cannot therefore be called childless within the
meaning of the Shia law of inheritance. In support of this argument
Mr. Hameed ULlah, for the appellant, relies mainly upon the following
passages of Mr. Baillie's work on the Shia law :
" A wife when there is no child of the deceased, has a fourth part of
his estate and an eighth if he has left a child " (vide page 294). " When
the wife has had a child by the deceased she inbarifcs out of all that he has
left, and if there was no child she takes nothing  out of the deceased's
land, but her share of the value of the household effects and buildings is
to be given her" (vide page 295).
These passages purport to be translations of the original Arabic texts
of the Sharayeh-ul- Islam which is the most authoritative work on the
Shia law, but since the accuracy of the translation has been questioned
and much depends upon the interpretation of the original Arabic text,
I will, in passing, state what Mr. Hameed Ullah has pointed out,
that another learned writer on the Shia law, Mr. Shama Charan Sarkar
in his Tagore Law Lectures for 1874 (page 260), has rendered the same
passage of the Sharayeh-ul- Islam in the following words :
" When a wife or widow has had a child (born of her own womb)
by the deceased, she inherits out of all that he has left. But if there
is no (such) child, she takes nothing out of the deceased's) land (arz),
but her share of the household effects (alat] and buildings is to be given
Before considering the original Arabic texts bearing upon the subject
I wish to state that both the above quoted translations were the subject
of consideration in this Court by the learned Chief Justice and my brother