RAGHUNATH NIAK Vs. BAYA BEJO AND 6 ORS.

JUDGEMENT

(1.) THE Respondents were prosecuted under Sections 447, 426 and 323, Indian Penal Code on a petition of complaint filed by the Appellant on 26 -8 -1963. The complainant and Baya Bejo (accused No. 1) have adjoining lands with an intervening ridge. The complainant's land stands on a higher level. Prosecution case is that on 19 -8 -1963 at about 2 P.M. the Respondents were thinning the common ridge towards the land of accused No. 1. They did not pay any heed to the complainant's protest. On 20 -8 -1963 at about 10 a.m. the complainant was assaulted by accused Nos. 1 and 4 in presence of the other accused, who shouted that the complainant should be tied with a rope. Only accused Adhi admitted that he was ploughing the land of accused No. 1 on 19.8.1963. Others denied their presence on the spot. All the accused denied to have committed any offence. The learned Magistrate discussed the evidence and came to the conclusion that the charge had not been brought home to the Respondents. He accordingly acquitted them. Against the order of acquittal dated 17 -11 -1964, the complainant has filed this Criminal Appeal under Section 417(3), Criminal Procedure Code.

(2.) POWER of the High Court in an appeal against acquittal is the same as in an appeal against conviction with this difference that in the former case the appellate Court while assessing evidence is to keep in mind that the presumption of innocence in favour of the accused is reinforced by the factum of acquittal.

(3.) COMPLAINANT (p.w.1) himself stated that by the date of occurrence the work of transplantation was going on. He admits that some times ridges are thinned out to maintain uniformity for smooth ploughing. It would thus be apparent that thinning out of the ridge is an essential part of the agricultural operation which the cultivators do at the time of ploughing or transplantation. Section 425, Indian Penal Code defines 'mischief'. Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or and such change in any property or the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits "mischief". The two explanations appended to the section are not relevant here. Prosecution has failed to adduce any evidence that by that by the act of thinning out the accused intended to cause wrongful loss or damage to the complainant. There is also no proof that there was destruction of the ridge or any change in it, so as to destroy or diminish its value or utility. Thus the ingredients of Section 420 have not been made out. The accused also did not trespass into the land of the complainant and accordingly no offence under Section 447 is made out. The acquittal under these two sections was justified.