GOVINDA BHARATI Vs. ADHIKARI BHARATI

JUDGEMENT

(1.) THE Petitioner along with many others was prosecuted for an offence under Section 427 of the Indian Penal Code for having committed mischief by pouching some cultivable lands of the complainant upon which there had been earlier plucking, seeds had been sown and had sprouted. Io the Appellate Court, the conviction has been sustained only of the Petitioner and he has been sentenced to pay a fine of Rs. 100/ - with a default sentence. There is a direction that out of the fine, if realized , a sum of Rs. 50/ - may be paid by way of compensation under Section 545, Code of Criminal Procedure. In the mean time the complainant has died. The Petitioner has not substituted his legal representatives, but the State has been noticed and the learned Additional Government Advocate appears in support of the prosecution.

(2.) MR . Sahu raised two contentions. He firstly contended that on the facts as found, no offence within the meaning of Section 425 of the Indian Penal Code can be said to have committed. This contention is advanced on the basis that the accused is alleged to have reproached and reshow the land. It is, therefore, stated that even if there was reproaching the land was left in the same state as it was before the alleged offence was committed. Therefore, there was no diminution to the value or utility, nor was the property affected injuriously. In support of this proposition reliance is placed on two decisions. In the case of Rata Krishna Ghose and Ors. v. The State, A.I.R. 1657 Cal. 385, a learned judge of the Calcutta High Court came to hold that where the land was barren or lying fallow and the accused came and cultivated and sowed some seeds upon it, was not mischief. In the case of Sippattar Singh and Ors. v. Krishna : A.I.R. 1957 All. 405, sugar came was ready for harvest and the accused came and out away the standing sugar came. Therein it was also found that there was no action within the definition of mischief in the removal of the sugar came. Neither of these decisions assists the present contention of Mr. Sahu.

(3.) TAKING a complete picture of the matter however, I think by sustaining the conviction under Section 427 of the Indian Penal Code, I would reliance the sentence to Rs. 55/ -(Fifty five) in all. There was an order in the Appellate Court that a sum of Rs. 50/ - out of the fine if refused may be paid under Section 545, Code of Criminal Procedure to the complainant. In view of the fact that the complainant is dead, the amount of Rs. 50/ - may be paid to the legal representatives of the complainant to the satisfaction of the learned Magistrate if the fine is realised. The default sentence shall remain unaffected in spite of the reduction in the fine. Subject to the aforesaid modification, the revision is dismissed.