PITAM SINGH Vs. EMPEROR, THROUGH AJODHIA PRASAD

JUDGEMENT

(1.) THIS is an application by Pitam Singh, Behari and Lalta Prasad, three tenants, who have been convicted of having committed an offence of mischief, punishable under Section 426, Indian Penal Code, by cutting down an ancient tree admittedly standing upon their holding. The trial Court was of opinion that the three accused were guilty of mischief because, in the absense of evidence of a special custom, the property in the tree vested in the Zemindar, who was the complainant in the case. There was some evidence of a special custom and witnesses, who have apparently been believed by the trial Court, deposed that the tenants were in the habit of lopping branches from the tree when they needed wood for agricultural purposes. I have allowed the evidence on the question of custom to be completed by the production in this Court of a certified copy of an extract from the village record of Rights. I am not quite clear whether evidence was or was not given in the trial Court as to the provisions of this wajib-ul-arz In appeal the learned District Magistrate seems to have thought that the case was probably one of theft rather than of mischief, but that he was not called upon to interfere with the conviction or the sentences of fine imposed. If the accused had been convicted of theft questions would have arisen as to the possession over this tree which it might have been difficult to answer in the sense desired by the prosecution. I can only deal with the conviction as it stands, with reference to the definition in Section 425, Indian Penal Code. I have first to consider whether wrongful loss was caused to the Zemindar by the felling of this tree. If this were a civil suit by the Zamindar for damages, I very much doubt whether he could have recovered damages on account of the felling of this tree, in view of the evidence as to the customary rights enjoyed by the tenants in respect of the same. At any rate, I do not think the accused intended to cause wrongful loss to the Zemindar, or knew that they were likely to do so. They believed themselves to be Acting within their rights. The Magistrate attaches considerable importance to the fast that they persisted in felling the tree although warned not to do so by some servants of the Zamindar. I do not think this has any real bearing on the question whether the accused persons were Acting in good faith, in the assertion of a bona fide claim. I do not think this conviction is warranted by the evidence on the record or by the findings of the trial Court. I set aside the conviction as against all three applicants and the sentences passed. The fines, if paid, will be refunded.