KRUSHNA MOHANTY AND ANR. Vs. ARTABALLAV MOHANTY

JUDGEMENT

(1.) THIS revision is directed against an order passed by the Magistrate 1st class, Cuttack, convicting the accused -Petitioners under Section 427 Indian Penal Code and sentencing each of them to pay a fine of Rs. 40/ - in default to rigorous imprisonment for fifteen days each in Case No. 725 C -1 of 1955.

(2.) THE complainant was the owner of a plot of land No. 1157 and the accused -Petitioners were the owners of the adjoining plot of land No. 1158 at Mouza Banpur within police station Mahallga in district Cuttack. The prosecution case is that on August 4, 1955 the accused Petitioners had cut and removed the boundary ridge between these two adjoining plots during the temporary absence of the complainant and had constructed a new ridge after encroaching upon the complainant's plot No. 1157. The accused persons were charged with the offence of causing mischief under Section 427 Indian Penal Code. At the trial there were four witnesses called by the prosecution. The complainant P.W. 1 was not an eye -witness to the occurrence. P.W. 4 was a witness after the occurrence. The eye -witnesses to the alleged encroachment were P.W. 2, a former servant of the complainant, and P.W. 3, a day labourer. The defence called the Chakala Kanungo D. W. 1 who had submitted the report after spot enquiry.

(3.) IT was next contended on behalf of the accused -Petitioner that they had constructed the new ridge in the position where it was constructed under Bonafide claim of right. The learned defence Counsel relied on Ext. B which was the report of the Chakla Kanungo in connection with these proceedings. In the report, the Kanungo stated that he had examined seven witnesses from both sides and from their statement it was ascertained that in the month of last Jaista (May -June) when the complainant came to know that the accused -Petitioners had encroached upon his land by taking advantage of the complainant's absence from home (as he was a Government servant), he got the land measured and removed the old ridge from the place where, at the time of the enquiry, that is, in January 1956, the newly constructed ridge stood, in consultation with the accused -Petitioners and raised a new ridge at its correct position in between plot Nos. 1157 & 1158. The Kanungo further wrote in the report that after about two months, that is the day after the occurrence (in August 1955), when the agricultural operations were going on in the fields, the accused -Petitioners again cut and removed the new ridge and put it at its former position where it was beforehand. These were the facts as recorded by the Kanungo who reiterated this version of the case in his evidence before the trial Court. The Kanungo (D. W. 1) said that the ridge for which the complainant had filed this case was found by him to be a new one which was put by the accused at the former position where it was previously. In cross -examination the witness said that the ridge which was removed by the accused persons was put there through mutual consent of the persons i.e. in consultation with the accused persons. From the report of the Kanungo (ext. B) read with his evidence before the trial Court where he was called as a witness on behalf of the accused -Petitioners in defence, it is clear that there was some dispute as regards the boundary line between these two adjoining plots of land -plot Nos. 1157 and 1158. Mr. B.N. Misra, the learned defence Counsel, in support of his contention relied on a decision of this Court in Sada Panigrahi v. Raghunath Das, 16 (1950) Cutt. L.T. 78, where the facts were similar to the present case arising out of a boundary dispute in respect of two adjoining plots of land. In this case Panigrahi, J. (as he then was) while setting aside the order of conviction and acquitting the accused persons held that while the action of the Petitioners was certainly high -handed, that act is nevertheless not incompatible with their intention not to cause any mischief to the complainant, but only to establish what they believed to be their right however ill -founded or misconceived. What the Criminal Court has to ascertain is not whether the act of the accused has resulted in any loss to the complainant but whether the necessary mens rea was responsible for the accused's committing the act. In view of the fact that the parties have been quarrelling over the boundary line for a long time, it would not be safe to dismiss the contention raised on their (Petitioners') behalf that they acted under a bonafide belief. So also the Madras High Court in Jambulingam Fmai v. Ponnuswami Pillai, A.I.R. 939 Mad. 400, in a criminal revision directed against an order of conviction passed by the Chief Presidency Magistrate, Madras, convicting the accused of an offence punishable under Section 426 Indian Penal Code, while setting aside the conviction on the same principles held that mens Tea is one of the essential ingredients of the offence of mischief and if the accused honestly believed in good faith that he had the right to do what he did, even if he did not in law have that right he cannot be said to have had the necessary intention or knowledge that he was likely to cause wrongful loss or damage.