HANUMAN DAS PATEL Vs. JAYALAL PATEL AND ANR.

JUDGEMENT

(1.) THIS is on appeal under Section 417(4), Code of Criminal Procedure, 1898 against on order of acquittal passed by the Sub -divisional Magistrate, Bargarh in I.C.C. No. 46 of 1970 T. 748 of 1970 acquitting the accused persons of the allegations against them for on offence punishable under Section 426, Indian Penal Code.

(2.) THE prosecution case, in short, is that the complainant (p.w. 1) had constructed a new house on the site of his old house adjoining the house of the accused persons. The complainant bad attached a Pani Patti to the thatched roof of his own house. On 28 -5 -1970 both the accused persons cut a portion of the Pani Patti on the complainant 's roof inspite of the protest of the complainant, and on a later occasion, i.e. on 31 -5 -1970, accused Kunjalal Patel cut a few bamboos fitted to the roof and the Pani Patti. On account of the cutting of the Pani Patti and the aforesaid bamboos the complainant sustained a loss of Rs 50/ -.

(3.) THE trial Court, on on appreciation of the evidence on record, has arrived at the finding that the accused persons cut the Pani Patti and the bamboos from the roof of the complainant 's house as alleged against them. But it finds that the house of the accused persons and the said house of the complainant were on adjacent plots and p.w. 1 (the complainant) admitted that the thatched roof of his house and projected about one foot beyond the house of the accused persons. He has also taken note of the fact that p.w. 1 has admitted that the complainant 's house was taller than the house of the accused persons by about 5 to 6 cubits, the roof of the house of the accused persons was below the aforesaid projection of the complainant 's roof, that because of the said projection the accused persons could not have raised their house if they so desired, and that the accused persons cut the projected portion of the said roof which was adjacent to their house and the, remaining portion of the roof was in tact. On a consideration of the above facts the Court below has found that the accused persons did not have, any malafide intention to cause any wrongful loss to the complainant by cutting the Pani Patti and the split bamboos on the aforesaid projected portion of the thatched roof of the complainant 's house, and so they are not liable for on offence under Section 426, Indian Penal Code.