1. The original complainant is the appellant here. He is aggrieved by an order of acquittal passed by the Sessions Judge setting aside the order of conviction passed by the trial Court. The fifteen accused were prosecuted by the appellant. They were charged with offences punishable under Sections 147, 427 and 435, Indian Penal Code. It was alleged that all of them were members of an unlawful assembly and in prosecution of their common object of dispossessing the complainant from the disputed field on April 20, 1966 at village Ashti, they came and caused damage by setting fire to the hut of the complainant with an intention to cause damage to his property. One Narayan Deshmukh of village Ashti was the owner of Section No. 391 admeasuring 10.35 acres. The complainant purchased 6 acres out of this land by three successive sale-deeds in the year 1959 and took possession of the same. Narayan Deshmukh was left with only 4.35 acres of Section No. 391. It appears the vendor again by two more isar chit his dated February 25, 1964 and July 2, 1964 agreed to sell this land 4.35 acres to the complainant and that actually put him in possession of this land. These two isar chit his were for a sum of Rs. 4,350 out of which it is said Rs. 3,600 were paid to the vendor as earnest money. Instead of executing a regular sale-deed, the vendor Narayan Deshmukh decided to sell the field at a higher price to somebody else. He, therefore, executed a sale-deed of this disputed land 4.35 acres in favour of accused No. 1 Narayan Adhe for a sum of Rs. 6,000 on March 15, 1965. The result of this sale-deed was a dispute between Narayan Adhe accused No. 1 and the complainant. Each began to say that he was in possession of this land 4.35 acres. Because there was apprehension of breach of peace, therefore, proceedings under Section 145, Criminal Procedure Code, were held. The Sub-Divisional Magistrate passed an order holding that the possession was with accused No. 1. The complainant, therefore, filed a revision application and took a stay of warrant of possession. It was granted on April 27, 1966.
2. It appears a civil suit was filed in respect of the disputed property and that civil suit is pending.
3. The case of the complainant is that on April 20, 1966, between 12 noon and 1 P.M., accused No. 1 along with 14 other persons and also 3 police constables entered into the disputed land. The complainant had his hut and also a mandava on the disputed land. He had some household utensils in the hut. It is alleged that the accused broke open the lock of the wooden door of the fencing around the disputed land and destroyed the fencing. Accused No. 1 is also said to have set fire to the hut of the complainant. The fire spread all round and destroyed the mandava belonging to him. The grievance, therefore, of the complainant is that he had suffered a loss of about Rs. 4,000 on account of the acts of accused No. 1 and the others. That is how accused No. 1 and the others came to be prosecuted.
4. The defence of the accused is that accused No. 1 Narayan Adhe was in possession of the disputed land because he had purchased the same from Narayan Deshmukh and also took possession of it. All the accused except accused No. 14 admit their presence. At the relevant time accused Nos. 6 to 13 and 15 had gone there as labourers of accused No. 1. The allegation of all the accused is that Motiram, the son of the complainant, had set fire to the hut in order to bring accused No. 1 in trouble. According to them, therefore, the complainant and his son Motiram had falsely implicated them.
5. The learned Magistrate had found that the accused had not formed any unlawful assembly at all as alleged by the complainant and that, therefore, all of them had not committed any offence of rioting. He, however, concluded that the prosecution had proved that the accused had committed mischief and had caused damage to the complainant's property and that they had set fire to the hut belonging to the complainant with the intent to cause damage. The complainant was also found by him in possession of the disputed field on the date of the incident. Accordingly, therefore, he convicted all the accused under Section 147, Indian Penal Code and sentenced each of them to pay a fine of Rs. 50. Accused No. 1 Narayan was also convicted under Section 435, Indian Penal Code, and sentenced to pay a fine of Rs. 200. All the accused were acquitted of the offence punishable under Section 147, Indian Penal Code. The learned Sessions Judge, who heard the appeal by the accused, however, has come to the conclusion that the complainant was not in possession of the disputed land on the day of the incident. He was influenced by the order passed by the Sub-Divisional Magistrate in proceedings under Section 145, Criminal Procedure Code and the finding that accused No. 1 Narayan Adhe was in possession of the disputed land. The learned Sessions Judge also held that the conviction of accused Nos. 1 to 15 under Section 427, Indian Penal Code and Section 435, Indian Penal Code was also not proper. While holding this view, the learned Sessions Judge, however, was of the view that there is some evidence with regard to the specific acts committed by accused No. 1 Narayan Adhe. According to him, although there is some evidence that accused No. 1 Narayan broke the gate and the fencing, he could not be said to have committed an offence of mischief under Section 427, Indian Penal Code, because he was in actual possession of the field. The learned Sessions Judge, while finding that there is some evidence on record to show that accused No. 1 Narayan Adhe had set fire to the hut belonging to the complainant, held that he could not be said to have committed any offence under Section 435, Indian Penal Code. For this view of his, he relied on Emperor v. Balkrishna Narhar : AIR1924Bom486 , Arman Shaik v. Naimuddin Shaik : AIR1936Cal157 , and Vaiyapuri Goundan v. Kuppuswami Goundan A.I.R.  Mad. 473. Accordingly, therefore, he allowed the appeal and set aside the order of conviction under Sections 427 and 435, Indian Penal Code. This order of acquittal, therefore, is challenged here by the complainant. The only point, therefore, that arises here for consideration is to see whether this order passed by the learned Sessions Judge is legal and proper.
6. It is common ground that the complainant was not present on the field on April 20, 1966 and he had gone to Arvi. His son Motiram and his servant were the only persons present. It is common ground that accused No. 1 along with the others had gone there to take possession along with the help of the police at the time when it is alleged they have committed the offence. It is also common ground that there were proceedings under Section 145, Criminal Procedure Code on account of dispute regarding possession of 4.35 acres of land between accused No. 1 and the complainant. It is also common ground that the Sub-Divisional Magistrate had passed an order that accused No. 1 was in possession of this disputed land. The complainant had gone in revision and obtained a stay of the operation of the Sub-Divisional Magistrate's order. It also appears that a civil suit is pending regarding this disputed land. In view of these circumstances, I do not propose to go into merits of this case regarding the possession. In view of the fact that the issue regarding possession is being litigated in a civil Court, it would not be feasible for this Court in this proceeding to consider this issue of possession prima facie or otherwise. I do not, therefore, deal with that point at all.
7. The only point, therefore, that remains here for consideration is whether accused No. 1 and the other accused had committed, offences punishable under Sections 427 and 435, Indian Penal Code. 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, commits 'mischief.' The point that arises here for consideration is to see whether accused No. 1 or the other accused had with intent to cause or knowing that he is likely to cause Wrongful loss or damage to the complainant, caused destruction of any of his property. In view of the circumstances of this case, I would hold that the claim of the complainant that he Was in possession of the disputed, land is doubtful. I will, therefore, now proceed to answer the question on this basis.
8. We have seen that the learned Sessions Judge found that there is some evidence as regards specific acts committed by accused No. 1 Narayan Adhe. He found that there is hardly any evidence in so far as the other accused are concerned. The learned Sessions Judge also found as a question of fact that there is some evidence on record, to show that it was accused No. 1 who set fire to the said hut. According to him, however, accused No. 1 had a bona fide claim of right and, therefore, lie could destroy the hut and he could, destroy the fencing. We have, therefore, to see whether this view of the learned Sessions Judge is correct. In so far as the facts of this case arc concerned, we have the disputed land 4.35 acres in Section No. 391 at village Ashti. There Was a platform to watch the crops in this disputed, land. There was also a hut which contained some articles and the value of these articles exceeded Rs. 50. There is enough evidence to establish that this hut and the platform belonged to the complainant. Exhibit 39 is a copy of notice given to the complainant by the vendor Narayan Deshmukh. By that notice he admitted the existence of mandava as well as gud piled by the complainant. The vendor Narayan Deshmukh demanded, from the complainant that he should remove this mandava as Well as the gud piled by him in his field. In addition to this admission by the vendor, there is also the evidence of the defence witness Punjab examined by the accused. He admits that this mandava and the hut which Were burnt, belonged to the complainant Ramchandra. There is, therefore, no doubt that this mandava and the hut belonged to the complainant.
9. The question, therefore, that arises here for consideration is this: Can accused No. 1, even if he is in possession of the disputed, land 4.35 acres, destroy the hut and the mandava in that land belonging to the complainant Ramchandra? In my view the learned Sessions Judge when he relied on Emperor v. Balkrishna Narhar, Arman Shaik v. Naimuddin Shaik and Vaiyapuri Goundan v. Kuppuswami Goundan, committed an error because those cases were on different facts. Those cases dealt with the offence of mischief to the properties which Were claimed by either parties. Those cases were not in respect of a property which belonged to the accused but which property was in the property belonging to the other. It appears to me, therefore, that the learned Sessions Judge fell into error when he relied upon those cases. The learned advocate for the respondents-accused also relies on the case reported, in Emperor v. Balkrishna Narhar. Let us see whether he is right in relying on that case.
10. This Court was considering in the above said case an application in revision from an order of conviction, for house-trespass in order to commit offence and also with committing mischief. It was a dispute between two neighbours over What was alleged by the accused to be a party-wall belonging to himself and the complainant. The complainant inspite of a notice to the contrary had proceeded to erect an addition to this wall. The notice given by the accused warning him not to do so was not heeded. The complainant proceeded to add to the wall in order partly to support the stair-case which he proposed to put up. The very same evening the accused pulled down that addition which consisted of an added or raised brick wall. The complainant, therefore, filed a criminal complaint. The accused had, also filed a civil suit to restrain the complainant from proceeding with that wall. He obtained, an ex parte interim injunction in the civil suit which subsequently was made absolute pending the hearing of the suit. It was under these circumstances, after the interim injunction had, been made absolute, that this criminal case came for final decision before the learned Magistrate. Therefore, the question there was not of a property belonging exclusively to the complainant or a property claimed to be that of the accused. The question there was of the joint wall which Was claimed by both the parties. The accused also claimed bona fide right in that joint wall. The question before the Court in that case was this : Can it be fairly said to be free from all reasonable doubt that the accused here committed, criminal trespass to insult or annoy the complainant? Can it be said that the accused did this With intent to cause or knowing that lie was likely to cause a wrongful loss or damage to the complainant? This Court in that case relying on certain English eases and, on the proposition of what is known as abating a nuisance, took a view that the accused had not committed any offence or a mischief. Therefore, the facts and circumstances of that case were quite different from the facts and circumstances of our ease. In our ease there is a dispute in respect of 4.35 acres of land. Each of the parties claims possession, of the land. There is, however, clear evidence to show that the platform and, the hut which were on this disputed land belonged. to the complainant If, therefore, the accused, had destroyed the hut can it be said in these circumstances that he had committed, an offence under Section 435? I will not go into the question of fencing because of the civil litigation which is pending.
11. Now, therefore, the possession of land, is doubtful. The hut and. the Watching platform belonged, to the complainant. There is satisfactory evidence to show that accused No. 1 had, set fire to this property and, destroyed it. He has done so with an intent to cause or knowing that he is likely to cause a wrongful loss or damage to the complainant. There is no doubt that he has done so intentionally. Even if he claims possession of the land, in my view, he cannot destroy or set fire to the hut and to the property belonging to the complainant. If a trespasser left say his walking stick or a watch on the field of another person, the owner will not be justified in damaging the Watch or destroying his stick or set fire to the articles. In that view of the matter, therefore, I hold, that accused. No. 1 had committed an offence punishable under Section 435, Indian, Penal Code. I am also reinforced in this view by a judgment of this Court in Emperor v. Dinkar (1904) 7 Bom. L.R. 86. I, therefore, partly allow this appeal and set aside the order of acquittal in so far as accused No. 1 (respondent No. 1) under Section 435, Indian Penal Code, is concerned. I dismiss the appeal in so far as respondents Nos. 2 to 15 are concerned, and also for the offence under Section 427, Indian Penal Code in so far as respondent No. 1 is concerned. I, therefore, convict respondent No. 1 under Section 435, Indian Penal Code, and sentence him to pay a fine of Rs. 200; in default to suffer rigorous imprisonment for a period, of 2 months. If respondent No. 1 has not paid the fine, he should pay the same within one month.