1. This is a reference by the learned Additional Sessions Judge, Bareilly, recommending that the conviction of the accused under Section 427 I. P. C. was not correct and may be set aside.
2. It appears that the accused cut the sugar cane crop of one Smt. Krishan on the 29th January, 1954, and when she came to know about it she and her nephew protested about it and thereupon were beaten by the accused. The Sugar cane crop which had been cut by the accused was taken away by them. Smt. Krishan filed a complaint under Sections 447, 323, and 395 I. P. C. The learned Magistrate framed charges under Sections 323 and 427 I. P. C. The trial court found, on a consideration of the evidence produced before him, that the accused had cut the crop of' the complainant and had beaten her and her nephew. It accordingly convicted them under Sections 427 and 323, I. P. C. and sentenced each of them to a fine of Rs. 25/- under Section 427, I. P. C. and in default to three months' rigorous imprisonment, and also a fine of Rs. 20/- each under Section 323, I. P. C. and in default to two months' rigorous imprisonment.
3. The learned Sessions Judge, who heard the revision, was of the opinion that in view of the finding of the trial court no offence under Section 427, I. P. C. was made out because it could not be said that the applicants had caused any damage to the sugarcane crop itself, or that they had in any way diminished the value or utility of the crop by cutting it. He further found that in case the accused had removed the crop after they had cut it, they had committed the offence of theft as defined under Section 378, I. P. C. He has, therefore, made a reference to this court.
4. I have heard the learned counsel for the accused and also for the State and in my opinion this reference should he accepted. In order to constitute an offence of mischief, which is defined in Section 425, I. P. C. it is necessary that the intention of the person committing the mischief should be to cause loss or damage to the public, or to any person by causing 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. No doubt the accused caused wrongful loss or damage to the complainant when they removed the sugarcane crop which belonged to her, but it cannot be said that this loss or damage was caused to her due to the destruction or damage of the sugarcane crop itself. It appears that the sugarcane crop, when it was cut was ripe, and if it would not have been cut by the accused it would have been cut by the complainant or someone else. It cannot be said that the mere cutting of the sugarcane crop, which was ripe amounted to any mischief to the crop in the sense contemplated in Section 425, I. P. C. In order to maintain a conviction under Section 425, I. P. C. it is necessary that the loss or damage must be due to any act of the accused which causes destruction of the property itself by reducing its value or utility. This fact has not been established in the present case. In the circumstances, the conviction of the accused under Section 427 I. P. C. cannot be maintained.
5. I, therefore, accept the reference and set aside the conviction, and sentence of the accused under Section 427, I. P. C. Their conviction and sentences under 323, I. P. C. will, however, stand.