OUSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) THE unsuccessful appellants in Criminal Appeal No. 7/78 on the file of the Chief Judicial Magistrate, Thodupuzha, are the revision petitioners herein. THE Judl. 2nd Class Magistrate, Thodupuzha in C. C. 631 of 1977 convicted them for an offence under Section 426 I. P. C. and sentenced them to pay a fine of Rs. 100/- each and in default to undergo simple imprisonment for 15 days each. THEy were acquitted of the charge under Section 291 I. P. C.

(2.) THE de facto complainant examined as P. W. 1, in the trial court filed a complaint before that court on 10-10-1977 alleging that on the morning of 6-10-1977 the revision petitioners-accused, who are owners in possession of the paddy field lying adjoining the paddy field of P. W. 1 and at a higher level, cut open three sluices in the intervening bund and let out excess water from their field to the field of P. W. 1 and thereby inundated it and prevented him from carrying on agricultural work, as a result of which he sustained loss of Rs. 30/ -. A complaint was forwarded to the Sub-Inspector of police. Thudupuzha under Section 156 (3) Cr. P. C. THE latter registered a case as crime No. 214/77 as per Ext. P. 4, F. I. R. under Sections 426 and 291 I. P. C. investigation was conducted by a Head Constable of Police. P. W. 5 and the sub-Inspector of Police laid the charge. THE trial court framed charges under sections 426 and 291 I. P. C. against the accused. THEy pleaded not guilty. THE prosecution examined 5 witnesses and marked Exts. P. 1 to P. 4. THE defence did not tender any evidence. THE accused, when questioned, stated that the sluices were in existence from time immemorial and the water was being all along let into the lower field, that this was being done in exercise of a right of easement and that they had no intention to cause any damage or loss to P. W. 1. THE learned Magistrate, however, accepted the prosecution version of the occurrence as true and convicted them under Section 426 I. P. C. but acquitted them under Section 291 I. P. C. on the ground that a public nuisance had not been established. THE conviction and sentence were confirmed by the Chief Judicial magistrate, Thodupuzha.

(3.) THE Supreme Court decision deals at length with the ingredient, namely, intention to annoy, found in Section 441 I. P. C. and lays down that it is necessary to establish such an intention. In coming to a conclusion in this regard, the court has to take into consideration all relevant circumstances including the presence of knowledge that the natural consequence of the entry would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such annoyance etc. being the dominant intention which prompted the entry.