OUSEPH THOMMEN Vs. JOSEPH ANTONY

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and order of the learned First Class Magistrate of Ponkunnam, convicting the revision petitioner for committing an offence of mischief, punishable under s. 427, Indian Penal Code, and sentencing him to pay a fine of Rs. 15/- and in default to undergo simple imprisonment for a period of 10 days. The revision petitioner and the counter-petitioner, who was the complainant, before the lower court, were adjoining land owners and the case against the revision petitioner was that he committed mischief by cutting off a few branches of a cashewnut tree which stood on the complainant's land near the boundary. The fact that the petitioner cut away a few branches of the tree was not disputed, but the defence to the charge was that the act amounted to no offence as the petitioner was within his rights in cutting the branches which overhung his land. THIS aspect of the case is not adverted to at all in the lower court's judgment though it is clear from the records that the revision petitioner's case was that the branches he cut off were those which overhung his land.

(2.) S. 79 of the Indian Penal Code states inter alia that nothing is an offence which is done by any person who is justified by law in doing it. The answers given in cross-examination by Pws. 2,3 and 7, who among other witnesses prove the occurrence complained of, definitely show that the branches which were cut by revision petitioner were those that overhung his land, that when they were cut they fell into his land and that they were remaining there even on the third day after the occurrence when a Commissioner deputed by the court to inspect the site to prepare a mahazar went there. The evidence in the case also shows that underneath the overhanging branches the revision petitioner had planted tapioca plants.