Public Prosecutor vs Semalai Pannadi and Another

Ramaswami, J.

(1) This appeal is preferred by the State against the acquittal of Semalai Pannadi (accused 1), for an offence under S. 302 I.P.C. by the learned

Sessions Judge, Coimbatore, in S.C. No. 142 of 1958. He was convicted under S. 304 (Part II) and sentenced to rigorous imprisonment for five

years. But he has not preferred an appeal against the said conviction and sentence. The State also appeals against the acquittal of accused 2.

(2) The case against accused 1 was: the deceased Kanda Pannadi was a ryot cultivating Naduvakadu on lease from one Murugana Goundan. To

the west of this land is the land of Ramana Goundan called Parambukorai. The accused Semalai Pannadi was the Tannirkatti of the deceased

Kanada Pannadi till Chitrai last year when his services were dispensed with. Thereafter he became the Thannirkatti of Rama Goundan. These lands

were irrigated with the water of Puthuvaikal. This water was diverted to these lands by Koppus. Parambukorai of Ramana Goundan in irrigated

through the southern koppu and the land of the deceased through the middle koppu.

It is the case both for the prosecution as well as the accused that on 15-6-1958 transplantation was going on in Parambukorai, supervised by the

Thannirkatti accused. The deceased, when he came to the field in the morning found that there was overflow of water into Parambukorai and there

was no water flowing into his land. The water was flowing into Parambukorai through the legitimate southern koppu. The deceased therefore went

to the southern koppu and blocked it in order to divert the water into the middle koppu from the Puthuvaikal. The accused removed the block.

In fact the deceased was closing and the accused was removing the block for about ten minutes and there was an exchange of hot and absence

words. The accused had a spade in his hand and he hit the deceased on his head with the wooden portion of the spade. The deceased fell down

into the koppu. P.W. 1 who had accompanied Kanda Pannadi, raised an alarm and tried to interfere and sustained an injury. The accused left the

place with his spade westwards. P.W. 3, the Thannirkatti of a neighbouring land, witnessed this.

The alarm raised by P.W. 1 brought to the scene P.W. 2 and some women including P.W. 7 who were working in the vicinity. P.W. 1 and others

lifted the deceased and laid him on the ridge and administered some cold rice water to him. On P.W. 1''s information Palani Panadi (P.W. 8), the

eldest brother of the deceased, came there. The deceased was taken in a cart to Gobichettipalayam police station. There he gave a report to the

head constable P.W. 6, implicating this accused as his assailant. He was sent to the hospital. The doctor P.W. 5 got his dying declaration recorded

by the Sub Magistrate P.W. 4. In that statement Kanda Pannadi implicated this accused as his assailant. Kanda Pannadi died in the hospital on 21-

6-1958 at 4 a. m.

(3) The case for the accused was: ""Kanda Pannadi blocked the flow of water at the pali and we exchanged words for sometime. He closed the

pali and I opened it. There is a place there about, chest high. He pushed me and I pushed him. He was standing on the raised portion and I was

standing on the lower portion. I pulled his hands after he pulled me. Then he fell down on the cement construction and sustained an injury on the

head. He got up and went. I went southwards to my land to attend to my work. Kanda Pannadi went away walking.

(4) The learned Sessions Judge came to the conclusion that the prosecution has affirmatively and satisfactorily proved that the deceased Kanda

Pannadi was hit with a spade by this accused which brought about the fracture of the whole of the right temporal bone and the right and left parietal

bones, resulting in injury to the brain necessarily bringing about fatal result. But, in the circumstances of the case, he held that the offence would fall

under S. 304 (Part II), I.P.C. and sentenced the accused to rigorous imprisonment for five years. Hence this appeal by the State in regard to the

acquittal under the more serious charge which they are entitled to prefer; Kishan Singh v. Emperor, ILR 50 All 722 : AIR 1928 PC 254; AIR

1925 723 (Oudh) Zamir Qasim and Others Vs. Emperor, see also Emperor Vs. Sheodarshan Singh, ; In Re: Subba Chukli, ; Emperor Vs.

Shivaputraya Durdundaya, .

(5) The first point for determination is whether the offence has been affirmatively and satisfactorily brought home to the accused before determining

what the offence would amount to. It will be remembered that the accused has not appealed against his conviction and sentence under Sec. 304

(Part II). But as pointed out by Horwill J. in Emperor v. Panchaksharam, 1938 Mad WN 605 : AIR 1938 Mad 723 followed in State Govt., M.

P. v. Sheodayal Gurudayal, AIR 1956 Nag 8:

In an appeal against acquittal the accused is entitled to ask the court to consider all the evidence before it and all the possible grounds which may

be raised against the conviction. If, therefore, the counsel for the accused is entitled to argue on the facts of the case to show that the accused has

not committed an offence under S. 304 I.P.C., then although the acceptance of those arguments may not automatically set aside the conviction

under S. 335 I.P.C., yet if the court were satisfied that no offence was committed it would undoubtedly exercise suo motu its powers under S.

439(1), Cri. P. C. and set aside the conviction.

Bearing these principles in mind, and examining the facts of this case, we hold that the prosecution has affirmatively and satisfactorily proved that it

was the accused who inflicted injuries on the deceased with a spade which resulted in his death. The motive for the commission of the offence was

the attempt of the deceased to divert water flowing through the southern koppu to Parambukorai into the middle koppu in order to take water to

Naduvakadu. P.W. 1 who intervened and sustained an injury speaks to the occurrence and he is corroborated by P. Ws. 2, 3 and 7 who

witnessed the occurrence as they came there, when they were working in the vicinity at that time, on hearing this Galatta. P.W. 8 has come and

learnt of what had happened and taken the deceased to the Gobichettipalayam police station.

In the first information report given by the injured man himself, he has implicated this accused as his assailant. In the dying declaration recorded

from him subsequently, he has implicated this accused as his assailant. The medical testimony shows that the injured man could have received the

injuries at the time and in the manner mentioned by the prosecution. In the face of this overwhelming testimony the uncorroborated and untested

statement of the accused from the dock cannot be accepted. In fact, it is even medically impossible that the deceased could have sustained the

injury in the manner stated by the accused; therefore, the prosecution has affirmatively and satisfactorily brought home the offence to the accused,

that he inflicted the injuries on the deceased with a spade terminating fatally.

(6) The next point for consideration is what would the offence amount to? There can be no doubt that the conviction under S. 304 Part II, I.P.C.

cannot be sustained on the reasoning of the learned Sessions Judge. It is enough to reproduce the following sentences from his judgment:

There is nothing in the evidence to justify the conclusion that even though accused 1 had carried a spade with him he had any intention to kill

kanda Pannadi. If he had any intention, he could have attacked Kanda Pannadi even as he blocked the koppu. The fact that he used only the back

side of the spade clearly would further exclude the theory of any intention on his part to kill Kanda Pannadi. All the same, when accused 1 beat

Kanda Pannadi on his head with the back portion of the spade, he should have known that he was doing a dangerous act likely to cause death.

If the matter had really stood thus, we would have had no hesitation in interfering with the conviction under S. 304 (Part II) I.P.C., and altering into

one under S. 302 I.P.C. because a person using a heavy instrument like a spade so forcibly on the head of the deceased as to fracture the skull

extensively and injure the brain, will be plainly guilty of the offence of murder.

(7) But, on the facts of this case, we find that the act committed by the accused would fall under S. 304 (part II) I.P.C. by reason of exception 2

to S. 300 I.P.C. ""Culpable homicide is not murder if the offender, in the exercise in goods faith of the right of private defence of........... property,

exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without

premeditation, and without any intention of doing more harm than is necessary for the purposes of such defence."" This has to be read with S. 103

I.P.C. which lays down:

The right of private defence of property extends under the restrictions mentioned in Sec. 99 to the voluntary causing of death or of any other harm

to the wrong doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of

any of the descriptions hereinafter enumerated namely........... Fourthly mischief.... under such circumstances as may reasonably cause

apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised.

Therefore, we have to find out whether the deceased was committing mischief and this requires the exposition of the offence of mischief made

punishable under the Indian Penal Code from Sec. 425 onwards. The term ""mischief"" is derived from ME, meschef, bad result. OF,

meschief.......... to be unfortunate, mes (L. minus less + chief end, head, F. chef chief--Webster''s New International Dictionary page 1379,

Ballentine, Law Dictionary U. S. A. (The wilful and unlawful injury to or destruction of the property of another with malicious intent to injure the

owner) 34 American Jurisprudence, 688; Funk and Wagnall''s New Standard Dictionary of English Language, (V. I. T to harm or destroy);

Shorter Oxford (To inflict loss or injury upon).

(8) Section 425 defines the offence of mischief and Sec. 426 provides the punishments for this offence. Mischief, like most crimes, comprises a

mental and a physical element. The mental element is the intention, express or implied (from knowledge of likelihood of injury) to cause wrongful

loss or damage. The physical element is an act of destruction or injurious change to property (see Ss. 427 to 440). Whilst the mental element is the

same in all kinds of mischief, the physical element, the act of destruction or change, may be of any kind of that species of acts, and if the act is of

the kind specified in Ss. 427 to 440, the mischief is aggravated and therefore more severely punished than under Sec. 426.

(9) There are fourteen aggravated offences of mischief which may be thus classified:

(i) By reason of the amount of damage caused (S. 427).

(ii) Mischief in regard to animals (Ss. 428 and 429)

(iii) Mischief in regard to water supply and public works (Ss. 430 to 434)

(iv) Mischief by fire (Ss. 435 and 436)

(v) Mischief in regard to decked vessels (Ss. 437, 438)

(vi) Mischief in regard to any vessel, with intent to steel (S. 439)

(vii) Mischief with preparation for causing death or hurt, or wrongful restraint, or fear of such (S. 440).

There must be an intent, express or implied (from knowledge) in law to cause (i) wrongful loss, or (ii) damage. This is the mental element (mens

rea) in the offence. The first is a dishonest intention (S. 24), and this does not exist where the loss is caused under a bona fide claim of right to do

the act in question, as where a man reaps the crops grown on his land by another who had no right to plant them there, or where he diverts the

flow of water in a water course, to which the complainant has no right.

The mere assertion of a right unsupported by facts is no defence, Ramakrishna v. Palaniandi, ILR 1 Mad 262, especially when it has previously

been raised, and has failed in legal proceedings; Chhakoo Mandal v. Emperor, 11 Cal WN 467, and even a valid claim of right or one honestly

believed in will not cover loss or damage in excess of that which could have been reasonably supposed to be necessary for the assertion or

protection of the right. R. v. Clemens, 1898 1 QB 556, Miles v. Hutchings, 1903 2 K. B. 714, Heaven v. Crutchley 1903 68 J. P. 53. The

dishonest intention is usually apparent on the face of the act, but if it is not so apparent it must be proved. Emperor v. Baibaya ILR 7 Bom 126. In

construing whether a thing is done with a dishonest intention or not, the primary and not the more remote intention should be looked at: Queen

Empress v. Hardhan ILR 19 Cal 380. The immediate and more probable intent and not the remoter and less probable, should be attributed:

Queen Empress v. Girdharilal, ILR 8 All 653.

(10) It is no answer to a charge of mischief to plead that the motive of the accused was to benefit himself, and not to injure another, if he knew that

he could only secure that benefit by causing wrongful loss to another: Express of India v. Budh Singh. ILR 2 All 101. For examples of an intended

wrongful loss, see illustrations (a), (b), (c) and (g) to S. 425 Indian Penal Code.

(11) The intention of the accused need not, however, necessarily be dishonest i.e., he may not intend to cause wrongful loss of another''s property;

he may intend to damage it. Damage is not the same thing as loss. By loss is meant loss of possession; by damage is meant an injury other than loss

of possession. To steal a sheep is to cause wrongful loss; to subsequently kill it is mischief. Wrongful loss is not an essential ingredient in the offence

of mischief. As in the case of a claim of right, so in this case a bona fide belief that the thing injured by him was his own property, to treat it as he

liked would prevent his conduct from amounting to mischief. For examples of intended damage, see illustrations (d), (e), (f) and (h) of S. 425

Indian Penal Code.

(12) An effect is likely to take place when or where there is a likelihood of its being caused and likelihood is distinguishable from mere possibility; a

thing is possible when it may happen; likely when the chances are in favour of its happening, and probable when the chances are strongly in its

favour. Thus probability is the one stronger degree of likelihood. A thing may therefore be likely without being probable, though a thing probable

must be likely.

(13) The physical element in mischief is an act causing destruction of or damage in some property as the immediate result thereof, i.e., a direct

result. The act itself must, in fact, constitute the injury High Court Proceedings, 12th Nov. 1874, 7 Mad HCR App 39; High Court Proceedings,

22nd October, 1868; 4 Mad HCR App 15 : 1 Weir 512; and not be too remote thereto. The illustrations to Section 425 Indian Penal Code show

that it is not intended to cover cases of negligence. Shah Jeychand v. Thakur, Bawa Virji 1 Cri. LJ 488 (Kath). It will be observed that in each of

the illustrations to Sec. 425 Indian Penal Code, the loss or injury is the immediate result of the act in question.

(14) The nature of the injury may be (1) destruction, (2) an injurious change, i.e., one which destroys or diminishes its value or utility, or affects it

injuriously. The injury is thus something physical, and due to a physical cause; not for instance ""pollution"" of articles of food in the eyes of caste

Hindus: King Emperor v. Motilal ILR 24 All 155.

(15) The sufferer may be the owner of the property in question or a joint owner with the person who commits the mischief, or a person having only

some legal interest in the thing destroyed or injured, the offender himself being the owner (see Explanations 1 and 2 and illustrations (a), (b), (c),

(h) of Section 425) and illustrations (d), (e), (f).

(16) Change is a physical change in composition or form e.g., the drying up of a river-bed, a consequent destruction of the fish in the river, arising

from a diversion of water from the river: Emperor v. Chanda, ILR 28 All 204. A change in value is not sufficient to constitute mischief, e.g., to

cause a company''s share to fall in value by means of spreading false reports anent the company.

(17) The thing injured must belong to some one. Its value is immaterial, Queen v. Vyapuri, ILR 5 Mad 401. A thing abandoned is not property and

is not therefore the subject of mischief e.g., a dedicated bull at large. But graves in charge of a guardian are property, and to plough up such graves

for the purpose of cultivation constitutes mischief.

(18) Property is affected injuriously, if injury is caused to it, viz., when any harm whatever is illegally caused to it i.e., caused by conduct which is in

itself an offence or which is prohibited by law, or which furnishes ground for a civil action.

(19) These principles are embodied in the following decisions: AIR 1948 97 (Oudh); Karim Bux Vs. Rex through Karimullah, : Amarendra Nath

v. King AIR 1949 Cal 237; Vaiyapuri Goundan v. Kuppuswami Goundan, AIR 1948 Mad 473; Akbarulla v. Farmaj Ulla, AIR 1955 Tri 1;

Bhagwan Rana v. State, AIR 1953 Sau. 158; In Re: P. Appayya, ; Sippattar Singh and Others Vs. Krishna, ; Bata Krishna Ghose and Others Vs.

The State, ; Sailen Sardar and Others Vs. The State, , Arjunsingh Vs. The State, .

(20) Bearing these principles in mind, if we examine the facts of this case, there cannot be the slightest doubt that the deceased was committing the

specific offence of mischief enumerated in S. 430 I.P.C.; ILR 1 Mad 262 ; Vadavalli Narasimha Rao and Others Vs. V. Ayyanna Rao, :

Deenabandu Rajaguru Vs. Visvasarayi Lachanna Dora and Others, ; In Re: Kovvada Sanyasi Naidu and Others, Athinarayanasawmy Pillai v.

Subbier, 1 Weir 505; Kullappa Naickar v. Palaniannal, 11 Mad LW 148 : AIR 1920 Mad 119; In Re: Budda Reddi and Others, ; Krishna Ayyar

and Another Vs. Ayyappa Naick, . Chengamma Naidu v. Emperor 1911 2 Mad WN 349, Athimoolam Pillai and Others Vs. Palaniandi

Ambalam, and the accused was justified in preventing him forcibly from consummating that mischief in defence of the property of his master

Ramana Gounder. The accused has, however, clearly exceeded the right of private defence and therefore his act falls within exception 2 to Sec.

300 Indian Penal Code.

(21) The net result of this analysis is that the conviction of the accused under Sec 304 (Part II) Indian Penal Code is correct and the sentence is

appropriate. There are no grounds to interfere with the conviction and sentence.

(22) There are no merits in the State appeal against accused 2 for the reasons set out above. These appeals by the State are dismissed.