Hanuman Das Patel vs Jayalal Patel and Another

S. Acharya, J.—This is on appeal u/s 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 u/s 426, Indian Penal Code.

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/-.

The accused persons in their Section 342 statement took the plea of denial and alleged that this false case was foisted against them due to previous enmity.

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 u/s 426, Indian Penal Code.

It is well settled that unless it is established that the intention of the alleged offender was to cause wrongful loss or wrongful damage to the person concerned, the mere, fact that some loss or damage was caused to any property would not constitute on offence of mischief as defined u/s 425, Indian Penal Code. If the criminal Court comes to the conclusion that the accused did the complained-of act in assertion of his bonafide claim of right as understood in the legal parlance, then he cannot be found guilty of the criminal offence of mischief as on offence of mischief u/s 425, Indian Penal Code can be caused only it is established that the accused had the intention to cause wrongful loss or wrongful damage to the public or to any person.

In this case, as rightly held by the Court below, on the evidence on record is established beyond doubt that a portion of the newly constructed thatched roof of the complainant''s house projected beyond the complainant''s own land and it had extended inside the accused''s plot of land. It is also clear from the evidence on record that the Pani Patti which was allegedly cut by the accused persons was on the projected portion of the complainant''s roof. The complainant has stated that the demolished his old house and on the same site he recently constructed a new house. He has further admitted that only after the construction of the said new house and after he fitted the Pani Patti on the newly constructed thatch of his house, the trouble in question between the parties started, and that there was no trouble when the old house was in existence. The projected portion of the complainant''s roof also admittedly prevented the accused persons to raise the height of their own house. Because of the said projection of the thatch the accused persons must have anticipated further obvious damage to their own house. On the above facts and on the various admissions of the complainant which have been correctly taken note of by the Court below it is quite evident that the accused persons bonafide believed that they had the right to remove that portion of the newly constructed thatched roof with the Pani Patti attached thereto which had projected over and encroached upon their house site, and so they cut and removed the same. That being so, the required mens rea as stated above, which is on essential ingredient of on offence of mischief is absent in this case.

My above view is supported squarely by a decision reported in Jambulingam Pillai Vs. Ponnuswami Pillai, , wherein it has been held that as mens rea is one of the essential ingredients of the offence and if the accused honestly believed in good faith that he had a right to do what he did, even if he did not in law had that right he cannot be said to have the necessary intention or knowledge that he was likely to cause a wrongful loss or damage. It has been further held therein that it is well settled that in the absence of any intention or knowledge of the kind stated above, a conviction for on offence of mischief cannot be had.

In the Madras case there was a projection of the poles and clamps belonging to the complainant over the land of the accused and there was no doubt that the said projection was on invasion of the rights of the accused persons. In the present case also, on the facts admitted there is no doubt that a portion of the complainant''s newly constructed thatched roof projected over a portion of the land of the accused persons and the projected portion extended over a portion of the accused''s house. So that projection was on invasion on the rights of the accused persons and if they removed the same they did so with the honest belief that they bad a right to do so, and so they did not nave the requisite knowledge or intention in their said act to constitute on offence u/s 426, lndian Penal Code.

The decision reported in Krushna Mohanty and Anr. v. Artaballav Mohanty 25 (1959) C.L.T. 80, also supports my above view. In that case Barman, J, (as he then was) relying on the decision reported in Sada Panigrahi and Ors. v. Raghunath Das and on the above-mentioned Madras decision acquitted the accused on the finding that the prosecution failed to prove that the accused persons had any intention of causing wrongful loss to the complainant and as such they did not have the requisite mens rea to constitute on offence u/s 425, Indian Penal Code.

It is open for the defence to raise the plea of acting in bona fide exercise of their right if they can establish that plea on the evidence on record even though the accused persons in their statements in Court have taken the plea of total denial.

On the facts of the case and the admissions made by the complainant discussed above, I am of the view that the accused persons honestly and in good faith believed that they had the right to cut the portion of the complaint''s thatch including the Pani Patti, attached thereto which had projected over their own land, and it cannot be said that they by doing so had the requisite intention or knowledge to cause wrongful loss or damage to the complainant; and so they cannot be held guilty for on offence u/s 425, Indian Penal Code punishable u/s 426, Indian Penal Code. On the above view of the matter I uphold the order of acquittal passed by the Court below and dismiss the appeal against the said order of acquittal.

The appeal accordingly is dismissed. Appeal dismissed.