1. This is an application for the revision of an appellate order of the Sessions Judge of Mainpuri confirming the order of a Magistrate in which he convicted the two applicants of offences under Sections 430 and 353, Indian Penal Code. The facts are given sufficiently fully in the judgment of the lower appellate Court. The application is made on the ground that the convictions under Sections 430 and 353, Indian Penal Code are illegal. In order to prove an offence under Section 430 it is necessary to prove mischief as defined in Section 425 and it is also necessary to prove that the act committed is likely to cause a diminution of the supply of water for the various purposes enumerated in the section. What has been proved is that the applicants forcibly opened the canal distributary, and apparently diverted the flow of the water, but there is nothing to show that they permanently diminished the utility of the distributary, or affected it injuriously or that they practically diminished the supply of the water. The proper section under which they should have been convicted was apparently Section 70 of North India Canal and Drainage Act, 1873, and this was the conclusion arrived at by a learned Judge of this Court in the case of Tajuddin v. Emperor (1908) 5 A L J 159.
2. The Judge moreover has only found that the accused in the case threatened to assault the authorities. He did not find it proved that any assault had actually been committed and in these circumstances the conviction under Section 353 cannot be sustained. I therefore accept the revision to this extent that I vary the order convicting the applicants, set aside the convictions and sentences under Sections 430 and 353, Indian Penal Code, and direct that the convictions be recorded under Section 70 of the North India Canal and Drainage Act and that Mewa Ram be fined Rs. 30 and Swami Din who appears to have acted under his directions Rs. 20 or in default in either case that the defaulter be imprisoned for two weeks.