Lakshmi Narain, J.C.
1. The Sessions Judge, Tripura has forwarded this case under Section 438, Cr.P.C. with recommendation that the conviction of Sashi Bhusan Chakraborty accused petitioner under Section 426, I.P.C. passed by Sri S.M. Ali, Magistrate 1st class on 18.8.51 should be set aside on the ground that ingredients of the offence of mischief as defined under Section 425 of the Code have not been established.
2. The complaint is that the convicted accused along with two others had allowed their cattle to stray on to the complainant's field causing damage to the 'Hali seedlings' to the extent of Rs. 100/-. The defence is that the cattle had straved without the knowledge of the accused. The learned Magistrate found the accused guilty on the assumption that he did not take proper steps to guard his cattle.
3. Mere neglect or carelessness on the part of the person in charge of the cattle to keep them from straying into the field of others is not sufficient to bring home the offence of mischief against him if it is not proved that the wilfully and actually caused the cattle to enter, knowing that by so doing he was likely to cause damage to the complainant.
4. In the present case, there is absolutely no sufficient evidence to prove that the accused petitioner was aware that the cattle had strayed on the complainant's field and that he neglected to restrain them. The learned Magistrate has also not been able to find any such intention or knowledge of the accused which is an essential ingredient for mischief as defined under Section 425, I.P.C. The gist of the offence lay in the intention or knowledge to cause wrongful loss or damage which is wanting in the present case.
5. Yet there is another evidence in the case which considerably strengthens the defence case. It has been found by the learned Magistrate that when the complainant seized the cattle, the rope round the neck of the cattle was found torn. The necessary conclusion would be that the cattle forcibly un-tethered itself from the hold and strayed on the land of the complainant.
6. I quite agree with the recommendation of the learned Sessions Judge that offence under Section 426, I.P.C. against the petitioner accused in this case has not been proved. The conviction and sentence passed against him is, therefore, set aside. This reference is accepted.