Kishan vs State of Haryana

M.L. Singhal, J. (Oral)

This is criminal revision filed by Kishan son of Sultan petitioner against the order of acquittal dated 2.3.1996 passed by Judicial Magistrate I Class, Nuh whereby he acquitted Dharmender, Surender and Om Parkash accused in case FIR No. 18 dated 28.1.1994 under Section 429 Indian Penal Code.

Facts which have given rise to this criminal revision briefly stated are as follows :

On 27.1.1994, Dharmender alias Dharmi son of Raj Singh, Om Parkash son of Chhelu and Surender son of Randhir brought one bull from their fields. They tied that bull in the open plot of Niju Chowkidar with a neem tree. Thereafter, they rained lathi blows on the bull. A rope was also put around the neck of the bull. The bull fell down after receipt of lathi blows and died due to asphyxia. They dug a pit near the school building and burned that bull in that pit. Kishan made statement to the police which was recorded it the daily diary. Investigating Officer came to the spot. He took out bull from the pit. Autopsy was conducted on the bull by veterinary surgeon. According to Veterinary surgeon there were injuries on the dead body caused by blunt weapon and sharp objects. There was also mark of strangulation on the neck of the bull.

After investigation, the accused were challaned under Section 429 Indian Penal Code. They were chargesheeted under Section 429 Indian Penal Code. They pleaded not guilty to the charge and claimed trial. At the conclusion of the trial, Judicial Magistrate I Class, Nuh found the charge not proved against the accused. He accordingly acquitted them vide order dated 2.3.1996.

The State of Haryana did not choose to prefer any appeal against this order of acquittal. However, Kishan first informant has chosen to assail that order of acquittal through this criminal revision.

First question that immediately strikes the eye in this case is "whether the act complained of by Kishan satisfies the definition of `mischief'' as given in section 425 Indian Penal Code." Section 425 of the Indian Penal Code defines `mischief'' as follows:

"425. 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 any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits "mischief".

Explanation 1. It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.

Explanation 2. Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly."

From the definition of "mischief" it is clear that there should be intention to cause or knowledge that thereby wrongful loss or damage to the public or to some person would be caused by the act of destruction of the property. In this case, there is no evidence that the bull belonged to such and such person.

Section 23 of the Indian Penal Code defines "wrongful loss". "Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled. The word "wrongful" means prejudicially affecting a party in some legal right. The words by "unlawful means" are intended to refer to an act which would render the doer liable to an action or prosecution. Section 12 of the Indian Penal Code defines the word "public". The word "public" includes any class of the public or any community,

For proving the offence of "mischief" the prosecution is required to prove (1) that the accused caused the destruction of some property, or some change in such property or in the situation thereof; (2) that the above act destroyed or diminished the value or utility of such property, or affected it injuriously; (3) that the accused did as in (1) intending or knowing that he was likely to cause loss or damage to the public or to any person; and (4) that the causing of such damage or injury was wrongful.

In this case there is no evidence that by doing so the accused meant any wrongful loss to anyone. Nobody has come forward that the bull belonged to him. No segment of community has come forward to say that the bull belonged to them. PW1 has stated that the bull was roaming about in the village for the last four years. He further stated that the bull was neither his property nor that of the village panchayat. It was rather a stray animal. PW2 sated that the bull was let loose by the Gram Panchayat. If that was so, the bull was a stray animal. In respect of "stray animal" the offence of "mischief" cannot be said to be constituted. An offence might have been constituted under the Prevention of Cruelty to Animals Act, 1960. As per section 2(a) of the Prevention of Cruelty to Animals Act, 1960, "animal" means any living creature other than a human being. Section 2(f) defines "owner" as under :

" "Owner" used with reference to an animal includes not only the owner but also any other person for the time being in possession or of the custody of the animal, Whether with or without the consent of the owner."

In section 11(1)(a) of the Act "Treating animals cruelly" has been defined;

"Section 11. Treating animals cruelly :

(1) If any person

(a) beats, kicks, overrides, overdrives, overloads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner, permits, any animal to be so treated; or

(b) to (o) xxx xxx xxx

he shall be punishable, in the case of first offence, with fine which shall not be less than ten rupees, but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twentyfive rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both."

For the reasons given above, I am of the opinion that the learned Magistrate justifiably found the charge not proved against the accused. So, this criminal revision fails and is dismissed.

Revision dismissed.