Pakkiya Konar, and another vs Kunjammal

The petitioner\accused have preferred the revision, challenging, the conviction and sentence imposed on them in C.A.No. 193 of 1993 on the

file of the II Additional Session Judge, Tiruchirapalli confirming the conviction and sentence imposed by the judicial Magistrate, Jayakondam in

C.C.No. 164 of 1992 in which, the petitioners were found guilty u/s 427, IPC and sentenced to pay a fine of Rs.500, in default to suffer rigorous

imprisonment for three months.

The case of the prosecution in brief is as follows:

The respondent aged about 70 years filed a private complaint alleging that the petitioners have committed an offence u/s 427 IPC. The complainant

is owning landed property in survey No.285 in Malsinthamani Village. Adjacent to this land, about one acre of land belonged to one Velayutham

Chettair and it was also in the enjoyment of the complaint and her husband for a period of 15 years. There was a north south fence dividing these

properties for the last 50 years. On the east and north of the fence, there are fruit bearing trees. On 3.4.92 the petitioners alleging that they have

purchased the land from the Chettiar removed the fence to a distance of 115 feet and caused damage. They also attempted to cause damage to the

fruit bearing trees and thereafter, the respondent sent a complaint to the high police officials. As a result of the cutting of the fence, damage has

been caused to the extent of Rs.500.

The respondent\complainant examined herself as P.W.1 and also examined two other witnesses. Neither any documents nor any witnesses were

examined on the side of the petitioners. The trial court found the petitioners guilty u/s 427, IPC, convicted and sentenced them as aforesaid and the

appeal preferred by the petitioners was also dismissed and aggrieved against this, they have come forward with the present revision.

The learned counsel for the petitioners contended that both the courts have not properly appreciated the evidence adduced on the side of the

respondents. When the land has been purchased by the petitioners, the fence is situated within their property and they have got every right to cut

the same. The conflicting version in the testimony of P.Ws.2 and 3 was not properly considered. P.W.3 appears to be a chance witness. The

occurrence took place on 3.4.92 whereas the complaint was laid after 19 days. There is no responsible explanation on the party of the respondent

relating to this delay. The main ingredient for awarding conviction u/s 427 IPC is also absent. It is only a bona fide dispute and no criminal action

can be laid for the same.

There is no dispute that there is a dividing fence in between the property purchased by the petitioners and the property owned by the

complaint\respondent. The fence was existing for the last 50 years is also not seriously disputed. It is clear from the evidence of P.Ws.1 to 3 that

the fence has been removed to a distance of about 115 feet by the petitioners. It appears that the land belonging to. Velayudham Chettiar was in

the possession and enjoyment of the respondent for a considerable period of time and it has been purchased by the petitioners. On 3.4.92 only,

the incident relating to cutting of fence took place. Although the learned counsel for the petitioner raised number of points, he had restricted his

arguments relating to two matters only.

The first contention raised by the petitioners is that they have removed the fence since it is situated within the property purchased by them and at

best, it is only an invasion of civil right and no criminal section can be launched by the respondent. I am unable to agree with the contention of the

petitioners. The property now said to have been purchased by the petitioners was admittedly enjoyed by the respondent at one point of time and,

as such, all the particulars should have been known to P.W.1. The fact that the fence was cut by the petitioners is not disputed. Adjacent to the

fence, there are fruit bearing trees also and it is not the case of the petitioners that they also from part of their property. Considering the fact that the

respondent has enjoyed the other property also for a period of 15 years, it can be safely concluded that the fence could have been in the property

of the complaint. Even assuming that there is a bona fide dispute between the parties, they have no right to take taw into their own hands and cause

damage to the fence to a distance of about 115 feet.

The next contention put forward by the learned counsel is that there is inordinate delay in giving the complaint. The occurrence took place on

3.4.92, but the complaint was given on 22.4.92. The respondent is a woman and, as such, she could have waited to secure the help of other

persons before launching the complaint. The delay is not material in such type of cases. It is further stated that there was absolutely no intention on

the part of the petitioners to cause any damage to the property and, such the offence u/s 427, IPC is not made out even assuming that the

petitioners have cut the offence. The learned counsel relied upon section 425, IPC relating to the definition of mischief.

A perusal of section 425, IPC clearly indicates that

Whoever, with intent to cause, or knowing that he is likely to cause, wrongly 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 diminished its value or utility, or affects it injuriously

,commits ""mischief"".

The language employed u/s 425, IPC would go a long way to show that even if one act is committed either with an intention to cause or with

knowledge that it is likely to cause, the offence of mischief would be complete. If that principle is applied to the facts on hand when once the

petitioners have caused damage to the fence to the length of 115 feet, it squarely comes within the definition of section 425, IPC and, as such there

is no difficulty in coming to the conclusion that both the courts below have rightly come to the conclusion that they have committed an offence

punishable u/s 427, IPC.

The appellants were convicted and sentenced to pay a fine of Rs.500 each, in default, to suffer rigorous imprisonment for three months. It is

clear that there is a dispute between the parties relating to the fence. But, however, the appellants have been taken law into their own hands and

cut the fence and caused damage to the property. The petitioners claimed that they have purchased the land belonging to Velayutham Chettiar

which was already in the possession and enjoyment of the complainant. Considering this fact and having regard to the facts and circumstances, I

am of the view that a lenient sentence can be imposed on the view that a lenient sentence can be imposed on the appellants in the interests of

justice.

In the result, the revision is allowed in part and the conviction is confirmed but the sentence of fine is modified to the extent of Rs.250 each, in

default, to suffer rigorous imprisonment for one month. The fine amount paid in excess if any, shall be refunded to them.