Ragho Singh vs Rambirich Singh and Others

James, J.—The petitioner complained that certain persons by erecting a bund across a stream had caused a diminution of the supply of water for the purposes of irrigation of Masarh village. The persons accused were placed on their trial and they were, in due course, convicted of the offence punishable u/s 430, I.P.C., while certain of the accused were also convicted under Sections 143 and 144. The Record of Rights had described a right in the appellants'' village to erect such a bund, but some years before there had been a proceeding u/s 147, Criminal P.C., in which the Sub-divisional Magistrate had found that the right to erect this bund described in the Record of Rights had not been exercised during the year before which proceedings were taken; and therefore he made an order against the men of the village of the accused forbidding them to erect such a bund until they should get an order from the Civil Court.

The trying Magistrate came to the conclusion that whatever might have been the state of affairs at the time of the final publication of the Record of Rights, the right to erect the bund had not been exercised since the time of the proceedings u/s 147. On appeal, the Deputy Magistrate exercising powers u/s 407, Criminal P.C., set aside the conviction and acquitted the accused. One of the prosecution witnesses, a village chaukidar, had said in cross-examination that the people of Mandach erected a bund which the learned Appellate-Magistrate thought was a description of the bund in dispute. It appears that this was a mistake committed by the Appellate Court. The learned Magistrate examined the Record of Rights and applied the presumption u/s 103-B, Ben. Ten. Act, finding further that it was proved by evidence that the right to erect the bund actually had been exercised within recent years.

The learned Magistrate pointed out that the order in the case u/s 147, merely directed Ramkhelawan Singh and certain other definite persons not to construct the bund at the disputed place; but that the order was not binding on anybody except the parties and that the finding did not amount to res judicata between anybody except the actual parties to the dispute.

The petitioner prays that this acquittal should be set aside in revision, relying mainly upon the fact that the Magistrate who was exercising appellate powers misread the evidence of the chaukidar. It is to be regretted that he did not read the evidence of the chaukidar more carefully; but I do not consider that a single mistake of this kind would justify the use of extraordinary power which the High Court has in revision of setting aside an order of acquittal. So far as the learned Magistrate is dealing with the entry in the Record of Rights and the effect of the order u/s 147, his judgment is not open to criticism. The learned advocate suggests that the lower Appellate Court committed a mistake also in remarking that the loss suffered by the complainant''s village in consequence of the erection of the bund had not been proved; but here the learned Magistrate did not apparently mean that no witness had come forward making general statements of loss of crop, but merely that the loss of crop has not been proved to his satisfaction.

I find myself unable to interfere with the order of acquittal in this case and the application is dismissed.