G. B. PATOAIK, J. ( 1 ) - The two petitioners having been convicted under sections 379 and 423,134, Indian Penal Code, on the allegation that on the date of occurrence they removed a bullock belonging to P. W. 3 and killed the said bullock have preferred this revision. They are convicted on both counts by the learned trying Magistrate and were sentenced be undergo rigorous imprisonment for 18 months on each count, but the sentences were directed to run concurrently. On appeal, the learned Sessions Judge though affirmed the conviction and sentence but reduced the sentence to one years rigorous imprisonment on each count ( 2 ) ACCORDING to the prosecution case, on 5. 4. 1979 during the morning hours a pair of bullocks belonging to P. W. 3 were grazing in the field, but as one of the bullocks did not return in the afternoon, P. W. 3 searched for the same. While searching he met P. W. 2 of village Matiabhata and learnt from him that the accused persons were cutting one bullock at the outskirts of village Matiabhata. P. W. 3 them went to the place and found that his bullock had been cut. He, therefore, made a written report on the next day which was treated al F. I. R. (Ext. 2.) and investigation was taken up. The Investigating Officer seized one dead bullock, a knife, two pairs of chappals, alleged to be belonging to the accused persons from the place of occurrence and after completion of investigation filed the charge sheet against the accused persons under sections 379 and 429/34, Indian Penal Code. ( 3 ) THE defence plea is one of denial. ( 4 ) OUT of the 8 witnesses examined on behalf of the prosecution, P. Ws. 2 and 7 are the two farm servants of P. W. 6 and are supposed to be the eye witnesses to the occurrence, P W 6 has testified to the fact that P. Ws. 2 and 7 immediately on return from the field told him that a bullock had be killed. PW. 1 is the Veterinary Assistant Surgeon Who had conducted the post-mortem examination on the dead bullock and P. W. 3 is the informant and the owner of the bullock P. W s. 4 and 5 are the two seizure witnesses. Both the learned Sessions Judge relying on the evidence of P. Ws. PW. 1 is the Veterinary Assistant Surgeon Who had conducted the post-mortem examination on the dead bullock and P. W. 3 is the informant and the owner of the bullock P. W s. 4 and 5 are the two seizure witnesses. Both the learned Sessions Judge relying on the evidence of P. Ws. 2 and 7 came to the conclusion that the prosecution had been able to establish the charge under sections 29,134 as well as under section 379, Indian Penal Code, and accordingly recorded the conviction. ( 5 ) MR. Swamy, the learned counsel for the petitioners, contends there is no record to come to a conclusion that the bullock was removed from the possession of the informant by the accused persons, as nobody has seen the bullock being carried by the two accused persons. To attract the provisions of section 379, Indian Penal Code, the prosecution must establish the fact that the bullock in question was dishonestly taken out of the possession of the person to whom it belonged without his consent. There being no evidence to the aforesaid effect and the only evidence being that the two witnesses saw the bullock being cut by the accused persons, even if their evidence is believed that would not constitute the offence of theft. In that view of the matter, the conviction under section 379, Indian Penal Code, cannot be sustained and is accordingly set aside. ( 6 ) COMING now to the conviction under section 429, Indian Penal Code, if a person commits mischief by killing poisonings meaning or rendering useless any animal stated that in the said section, then the person concerned commits an offence consists of either killing or poisoning or maiming or rendering useless. Mr. Swamy appearing for the petitioners contends that the prosecution evidence as unfolded through P. Ws. 2 and 7 merely proves the fact that the two petitioners were cutting an animal and there is no evidence that the two petitioners had either killed or poisoned or maimed the animal, as required under section 429, Indian Penal Code. In other words, nobody has seen the two petitioners moving with the living bullock and then cutting the same after killing. In other words, nobody has seen the two petitioners moving with the living bullock and then cutting the same after killing. That apart, out of the two witnesses, P. W. 7 only saw the accused persons running away from the place of occurrence and did not see even cutting The person who would have been the most relevant witness, namely one Subhash Chandra Sethi, who first informed P. W. 6 about the fact of a bullock being killed, has not been examined by the prosecution and it is not known for what reason he has not been examined. In the premises, as aforesaid, even giving full credence to the evidence of P. W. 2 and accepting his version in toto, in my opinion, the offence under section 429, Indian Penal Code, has not been established. Consequently, the conviction of the petitioners under sections 429/34, Indian Penal Code, also cannot be sustained and the same is accordingly set aside. ( 7 ) IN the result, the conviction sentence passed against the petitioners on both counts are set aside and they are acquitted of the charges levelled against them. This Criminal Revision is allowed. The bail bonds furnished by the petitioners stand cancelled. Revision allowed