Udayanath Das and Another vs Madan Barad

V. Gopalaswamy, J.—This revision is preferred against the judgment dated 1.8-1983 of the learned J.M.F.C., Baramba� in 1. C.C. Case No. 3 of 1983 convicting the Petitioners u/s 427. I.P.C. and sentencing each of them to pay a fine of Rs. 50/-. in default, to undergo simple imprisonment for one month, with a direction that the fine amount if realised, should be paid to the complainant to compensate him for the loss suffered by him and also to meet the expenses incurred by him.

The prosecution case is that in the evening of 11-1-1983, 15 to 16 heads of she-buffaloes belonging to Petitioner No. 2 Suresh Chandra Mohanty started damaging the biri crop of the complainant Madan Barad and as the complainant protested, the Petitioners abused him in filthy language and threatened to assault him with a lathi. On the complaint petition filed by the said Madan Barad against the Petitioners regarding the said occurrence, in the Court of the Magistrate on 12-1-1983. cognizance was taken against them under Sections 427, 504 and 352, I.P.C.

The Petitioner No. 1 Udayanath is the servant of Petitioner No. 2 and looks after his cattle. The plea of the Petitioners is one of denial and d. w. 1 was examined in support of their plea.

The learned Magistrate, while holding that the prosecution had failed to establish its case against the Petitioners under Sections 504 and 352, I.P.C. convicted and sentenced them u/s 427, I.P.C.

On a perusal of the judgment of the learned Magistrate it is seen that he held the Petitioners guilty u/s 427, I.P.C. in view of his findings quoted below:

.... There is no previous enmity between the complainant and the .accused persons. It has come out from the evidence of p.w. 1 that on the day of occurrence, the accused Surendra was uprooting his biri crop from his land, which is adjoining to the occurrence land. The buffaloes-herd was present on the spot with the buffaloes. It is, likely that the buffaloes were taken there for their grazing. The buffaloes have entered into the land of the complainant and damaged his biri crops. The fact that the complainant had raised biri on his land is not disputed.

The buffaloes have entered into the land of the complainant in the immediate presence of the accused persons. Were they not present at the spot at the time of occurrence, they would not have been held liable u/s 427. 1. P. G. But their immediate presence makes them liable for offence u/s 427, I.P.C.

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.... During such period, the accused persons should have been more alert and careful not to damage the crop of any other persons....

So it is necessary to find out whether the finding in the preceding paragraph spell out a case of �Mischief as defined u/s 425, I.P.C..

Section 425, I.P.C, reads thus:

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�.

Illustration (h) u/s 425. I.P.C. indicating as to when a person would be liable criminally for the �mischief� done by his cattle, is given below:

A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause damage to Z�s crop. A has committed mischief.

So on a careful reading of the provisions of Section 425, I.P.C. in the light of illustration (h) given thereunder, it is clear that to warrant a conviction of a person u/s 417, I.P.C. for the mischief done by straying of his cattle into the field of another, it must be proved that he had actually and wilfully caused the cattle to enter the field knowing that by so doing he was likely to cause damage. The prosecution is bound to show that there was an intention on the pact of the accused to cause wrongful loss or damage.

In the case of Express v. Bai Bapa ILR 7 Bom 126 the accused admits that in consequence of her allowing her she-goat to go about loose, it caused mischief by destroying a young tree an exotic one in the police compound. In view of that the learned First Class Magistrate finding her guilty of allowing her she-goat to go about loose, knowing that it would thereby cause mischief and convicted her u/s 426. I.P.C. The Bombay High Court in that case held that in order to constitute the offence of mischief it is not sufficient to show that the accused was guilty of carelessness in allowing her goat to stray and the prosecution was bound to show that there was an intention to their wrongful loss or damage. So holding that the conduct of the accused did not constitute the offence of mischief, she was acquitted.

In the present case the above quoted findings of the learned Magistrate (in para 5 above) would only reveal that the Petitioners were, if at all, negligent or careless in allowing their Cattle to stray into the field of the complainant. From the judgment, it is seen that the learned Magistrate did not specifically find that the Petitioners have wilfully caused the cattle to enter the field of the complainant, knowing by so doing they were likely to cause damage to his crop. Before convicting the Petitioners u/s 427, I.P.C. the learned Magistrate should have atleast found categorically that the Petitioners were able to restrain the animals from causing the damage and deliberately did not restrain them from so doing,with an intention to cause wrongful loss or damage to the complainant. The complainant�s version that when he protested as the Petitioners� cattle were damaging the crops, they abused him and threatened to assault him was disbelieved by the learned Magistrate. This is a significant circumstance which reveals that as the complainant was admittedly in his field at the relevant time, he could have very well driven out the cattle even if they strayed into the field before they caused any damage. In any event, the findings of the learned Magistrate in the judgment, do not establish the main ingredients required to constitute an offence u/s 427, I.P.C. and on that score alone the order of conviction and sentence passed by the learned Magistrate is liable to set aside.

The complainant has examined 3 P.Ws. in all including himself as p.w. 1. In the complaint petition the names of four witnesses were given but none of them was examined by the complainant in support of his case. The complainant has given the explanation that none of them was willing to depose in his favour and against accused Surendra as the latter is one of the most influential persons in t be village. P. ws. 2 and 3 admitted in Cross-examination that neither of them was threatened by the accused when they figured as witnesses for the complainant. P. w. 2 further admitted that he did not hear about anybody else being threatened by the accused in case he wanted to be a witness. So the explanation of the complainant regarding the non-examination of the witnesses mentioned in the complaint petition, is not convincing and this is a circumstance which goes very much against the complainant and more so in view of the defence plea that there was no occurrence at all as alleged by the complainant. In fact, the Gramarakhi Rama Naik, whose name was mentioned in the complaint petition, deposed as d. w. 1 that he had declined to figure as a witness for the complainant as he did not see any such occurrence as stated by the complainant. P. ws. 2 and 3 were examined by the complainant but their names were omitted to be mentioned in the complaint petition and this omission creates a serious doubt about their competency to figure as witnesses in support of the complainant�s case. Even P.Ws. 2 and 3 do not depose about the presence of Surendra Mohanty at the time of occurrence. P. W. l also makes prevaricating statements about the presence of accused Surendra stating in the first instance that accused surendra at that time was uprooting and reaping biri from his land which adjoins the complainant�s land contradicting his subsequent version that the accused had completely uprooted the biri crop on the adjoining Kiari one day before the occurrence. The version of p.w. 1 that excepting the accused� none else were present in the spot and that one man Ari Dhala son of Kartika Dhala was at a distance of about 200 cubits away from the spot, impliedly excludes the presence of P.Ws. 2 and 3 near the spot of occurrence at the relevant time. Admittedly p.w. 3 was not having any land near the spot of occurrence and his house is 1 k. m. away from the spot and under the circumstances, it is difficult to accept his presence at the alleged time of Occurrence and more so when his name was not mentioned in the complaint petition. Hence, it is seen that the prosecution evidence is qualitatively so inferior and quantitatively so meagre that it would mean travesty of justice to convict the Petitioners on the oasis of such evidence.

For the reasons stated above, the order of conviction and sentence passed against the Petitioners u/s 427. I.P.C. by the Learned Magistrate is not maintainable in law and therefore, I hereby set aside the said order of conviction and sentence passed by the learned Magistrate against the Petitioners and accordingly allow this revision.