STATE Vs. BAI NARMADA SHIVSHANKER

JUDGEMENT

(1.) THIS reference has been made by the Sessions Judge, Central Saurashtra, recommending that the order of the First Class Magistrate, Rajkot (Mr. Upadhyay) convicting and sentencing the opponent under Sections 447 and 426, I.P.C. be set aside.

(2.) THE case was tried summarily. The trial commenced before Mr. Garni but before he could complete it he was transferred. Mr. Upadhyay who succeeded him completed the trial. Mr. Garni had examined some of the prosecution witnesses and Mr. Upadhyay acted on Mr. Gami's notes of evidence as also on the notes made by him and convicted the opponent. It appears from the judgment of the learned Magistrate that the complainant and the opponent own adjoining houses. The complainant's roof was higher than the opponent and projected its eaves over it. The opponent raised her roof and the learned Magistrate found that she employed workmen to do the job under the supervision of her maternal uncle. The learned Magistrate further held that in the process of raising the roof the complainant's eaves were cut. The rain water from the complainant's roof could no longer be discharged because the opponent had raised the height of her roof and therefore she got her workmen to construct a drain on the complainant's wall by plastering mobhias (broad Indian tiles) on the complainant's wall to carry away rain water.

(3.) WE are unable to agree with the learned Sessions Judge. In instructing her maternal uncle to raise the roof which necessitated the cutting of the opponent's (sic complainant's) eaves and entering upon his property she must be deemed to have intended to cause annoyance and wrongful loss to the complainant and therefore to have abetted the offences of criminal trespass and mischief. The learned Magistrate's judgment does contain a finding to that effect.