Basi Reddy, J.
1. The accused, who is the petitioner herein, was convicted by the trial Court of the offence of mischief punishable under Section 426, Indian Penal Code and sentenced to pay a fine of Rs. 200/. or in default to suffer simple imprisonment for two weeks, and out of the fine, a sum of Rs. 100/. was directed to be paid to the complainant (who is the 1st respondent here) as compensation. On appeal by the accused, his conviction and sentence were confirmed by the Additional Sessions Judge, Kurnool.
2. The facts concurrently found by both the Courts below are the following : The complainant is the owner of house No. 129 in ward No. 14 in Adoni Municipality, having purchased it under EX. p. 1, a sale deed dated 21-12-1953, from one Balaiah. Immediately to the south of this house, lies the house of the accused. The sullage water from the house of the complainant Sows through an underground drain which runs underneath the house of the accused and which has been in existence from time immemorial. But, as the accused had obstructed the said flow of water through the drain in the year 1936, the predecessor in title of the complainant had filed o. s. No. 86/36 in the District Munsif's Court, Bellary, to establish his right of easement and for a mandatory injunction directing the accused to remove the obstruction put up by him. The suit was decreed as prayed for. The accused carried the matter in appeal to the District Court, Bellary, in A. s. No. 102 of 1936 but the appeal was dismissed and the judgment and decree of the Court of the first instance were confirmed.
After the purchase of the property by the complainant, the dirty water used to flow through the drain as before. However, on 21-9. i960, the accused again caused obstruction to the flow of water through the drain by means of a cement plaster at the point where the water entered through an opening in the accused's wall into the underground drain. The result was that the dirty water could not flow as usual through the drain and got stagnated in the complainant's premises, and when the tenant who was occupying the house, complained of the high-handed act of the accused, the latter was adamant and defied the complainant to do his worst. There, upon the complainant filed a complaint out of which the present revision arises.
3. Various pleas were put forward by the accused in the courts below, but all of them were negatived, and were not pressed before me. The only point that survives for my consideration in this revision petition is whether, assuming the facts as found by the courts below to be correct, the ingredients of the offence of mischief have been made out. The contention of the learned advocate far the petitioner is that by closing up the drain within the site belonging to the accused and preventing the flow of sullage water from the complainant's house through the underground drain, the accused might have interfered with the right of easement of the complainant, but a right of easement is not ' property' within the meaning of Section 425, Penal Code and consequently the accused had not committed the offence of mischief. For this proposition, the learned advocate relied on a number of decisions such as those reported in Rudraraju Ramaraju v. Emperor AIR 1950 Mad 973, Sumitra v. Dhannu AIR 1952 Nag 193, Ram Roop v. Emperor AIR 1939 Oudh 38 and Sallen Sardar v. State AIR 1958 Cal 688. In all those cases it was laid down as a proposition of law that 'property' as contemplated by Section 425, Penal Code which is the definition section, means tangible property, but does not include an incorporeal or intangible property, such as an easement. I must say I am inclined to agree with this proposition, but that, however, does not conclude the matter and does not absolve the accused in this case and take his act out of the purview of Section 425, Penal Code. That section, so far as is material for the present purpose, runs as follows:
'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 such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief.'
Explanation 2 : -Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.'
Illustration (d) is in point '.-
(d) A, knowing that his affects are about to be taken in execution in order to satisfy a debt due from him to Z, destroys those effects, with the intention of thereby prevening Z from obtaining satisfaction of the debt and of thus causing damage to Z. A has committed mischief.
The first part of the section sets out the mens rea or the guilty mind, which is the intention or the knowledge of likelihood of causing wrongful loss or damage to the public or to any person. The second part of the section pertains to the actus reus, that is to say, the criminal act, which consists in causing destruction to any property or any such change in any property or in the situation thereof and destroys or diminishes its value or utility or affects it injuriously.
4. Therefore the crucial question for determination is whether the ingredients of the offence have been made out upon the facts proved in this case.
5. It can scarcely be disputed in the present case that the act of the accused in blocking up the drain and in not allowing the sullage water to flow through the underground drain, has caused damage to the complainant, as the tenant who was occupying the house, left it, unable to bear the foul smell emanating from the dirty water that had collected inside the complainant's premises. So the real question is whether in blocking up the drain, the accused had caused such change in the property or in the situation thereof as to destroy or diminish its utility. That a drain is 'property,' hardly admits of controversy, and I am of opinion that blocking a drain and stopping the flow of water through it, to which outlet the complainant has a right, would amount to causing a change in the drain or in its situation so as to destroy its utility to the complainant. That being the true nature of the act committed by the accused, it constitutes the actus reus. Thus the ingredients of the offence of mischief as defined by Section 425. Penal Code have been made out in the instant case. The conviction is therefore right and the sentence errs on the side of deniency. In the result the criminal revision case fails and is dismissed.