GULAB SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by two men who are a Girdawar and a Sazawal, of the Agori Barhar Estate in the District of Mirzapur. The complainant Deoraj and the Barhar Estate have been at loggerheads, it seems, for some time and the Estate ejected Deoraj successfully from some plots of land which were given to a man of the name of Shiam Das, a defence witness in this case. The case of Deoraj is that 200 men belonging to the Barhar Estate collected together and surrounded his house and thereafter went and cut three bunds in which water had been collected and which bunds, had been put up by the father and grandfather of Deoraj for the purpose of cultivating his fields only; that by the action of the accused and the other 198 man the complainant suffered a loss of Rs. 5,000. This is the complaint which I am asked to accept as correct in every particular by the learned vakil who appears for the complainant to support the order of the Magistrate. The Magistrate, however, convicted the petitioners of the serious offence punishable under Section 430 of the I. P.C. but only fined them Rs. 50 each. I have examined the, findings of the Magistrate and have also examined the record.; I am not satisfied that all the ingredients necessary for convicting; an accused person under Section 430 of the I. P. C., have been found to be present in this case to support the conviction of the two petitioners.

(2.) It appears to me that Deoraj having been exasperated by the various suits in the revenue Court filed on behalf of the Barhar Estate has exaggerated considerably whatever was done by the two petitioners, The case of the petitioners is that Shiam Das, a tenant, who had been given fields which at one time belonged to Deoraj wanted water to irrigate his fields and, therefore, they cut the bund to give water to Shiam Das. Whatever the truth of the case may be it is not, denied that the bund was cut by the orders of the two accused persons. The fact that the learned Magistrate only fined the accused in such a serious case shows to me that he did not believe all the allegations of Deoraj as the learned Counsel for the appellant wants me to believe.

(3.) The fact is that this matter is pre-eminently one for the civil Court to decide whether the bund was put up or not put up by the ancestors of Deoraj, and whether Deoraj was the only person entitled to the water and nobody else. If that is so, certainly the accused would be liable to conviction and punishment under Section 430, but in the absence of clear findings, and in view of the fact that, such serious allegations are made I am not satisfied that the Magistrate believed: even a good portion of Deoraj's statement. Certainly, as I have stated, the findings are not sufficient to warrant a conviction under Section 430 of the I. P. C. Being of opinion that this is a case pre-eminently for the civil Court to decide I set aside the conviction and sentence of the two petitioners.