O.P. Trivedi, J.
1. Chhotey Lal. Chandra Sen, Misri Lal and Rameshwer have been convicted by the Temporary Civil and Sessions Judge, Hardoi under Sections 147 and 323, read with Section 149, I. P. C., Under the first count each of them. has been sentenced to rigorous imprisonment for six months.
2. In short the prosecution case is that some parti land was lying to the west of the field of Bisram complainant of which Chhotey Lal appellant had taken possession. That previous to the day of occurrence Chhotey Lal encroached upon a portion of the adjoining field of Bisram and wrongfully constructed a Mend which was resented by Bisram. On the day of occurrence i. e., on 9-1-1968 at about 8 a. m. Bisram and his brother Ram Bharosey started demolishing this Mend when all the appellants arrived armed with lathis and started beating up Bisram and Ram Bharosey. Their cries attracted Putai P. W. 4, Jagram P. W. 1, Prabhu P. W. 3 Tika and Umrao. In order to protect Bisram and Ram Bharosey, Jagram and Prabhu used a lathi leading to a lathi fight between the two parties. The first report of this incident was lodged by Bisram the same day at 11.45 a. m. and another report containing the counter-version was filed by Chhotey Lal the same day at 12.35 p. m. According to the counter version aggression was committed by Bisram and Ram Bharosey against them. On the prosecution side four persons received injuries, Bisram, Jagram, Ram Bharosey and Prabhu. The same doctor had earlier examined five persons on the side of the appellants and found that they had also received injuries. These persons are Chhotey Lal, Chandra Sen, Misri Lal, Rameshwer and Munnu. The appellants have pleaded not guilty to the charges framed against them, and one of the pleas taken in defence was that the injuries were caused to the complainant Bisram and others in the exercise of right of self-defence by the appellants. Three witnesses were examined on the prosecution side, Jagram P. W. 1, Prabhu P. W. 3 and Putai P. W. 4. No witness was produced for the defence.
3. The first submission of learn- ed counsel in this case is that even on the prosecution story the appellants could not have been found to be guilty of any offence. To my mind, this submission is well founded in law. Bisram was examined before the committing magistrate, but he could not be produced at the trial because he was missing and, therefore, the statement made by him before the committing magistrate, ext. Ka-10, was read in evidence. It is in this statement of Bisram and also in the evidence of the witnesses produced for the prosecution that a day previous to the date of the occurrence Chhotey Lal constructed a mend by encroaching upon certain land belonging to the field of Bisram and that on the day of the occurrence Bisram and his brother Ram Bharosey were demolishing this mend. At that time the appellants came armed and started beating Ram Bharosey and jagram. Under Section 97 of the Indian Penal Code every person has a right subject to the restrictions contained in Section 99 to defend the property whether moveable, or immoveable, of him self or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass, 'Mischief' has been defined in Section 425 of the 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 or any 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 1 to Section 425, I. P.C. provides 'It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property whether it belongs to that person or not.' It transpired from the cross-examination of Putai P. W. 4 that there was a dispute between complainant Bisram and Chhotey Lal with respect to the land on which the Mend was constructed a day earlier by Chhotey Lal and that both of them were raising claim over the land which was encroached by Chhotey Lal through the Mend. In view of Explanation I of Section 425, I. P. C, it was immaterial whether there was any encroachment over the land of Bisram by Chhotey Lal and in other words whether the disputed land belonged to Chhotey Lal. Having regard to the admitted facts as emerging from the prosecution evidence, to my mind. Bisram and Ram Bharosey were clearly guilty of commission of the offence of mischief as defined under Section 425, I. P. C. in destroying the Mend which was earlier constructed by Chhotey Lal. If Bisram believed that Chhotey Lal had trespassed over his land and thereby committed trespass then the remedy under law lay in going to the court for a decree for possession against him. He had no right to take the law into his own hands. The law does not permit a citizen to take the law in his own hands for the redress of a civil matter. The law protects a citizen only against criminal trespass by resort to the exercise of the right of defence of property. Under Section 97 of the Indian penal Code, the act of Bisram and Ram Bharosey in demolishing the Mend which admittedly belonged to Chotelal the same having been constructed by him, was intended to cause (sic) and was such that they should have known that it was likely to cause wrongful loss to Bisram (Chotelal?) It was also an act which caused a change in the situation of property as to destroy it within the meaning of Section 425 of the Indian Penal Code-In this view of the matter there is force in the submission that the right of defence of property accrued in favour of Chhotey Lal and his associates the present appellants to repel further destruction of the Mend under Section 97 of the Indian Penal Code and therefore. any injuries caused to the other side in the exercise of that right would be protected under Section 97. The view which take of the matter so far as the offence of mischief is concerned is supported by the following cases : Empress v. Shanker Lal (1887) All. WN 101. In re Rao Nihalkaran : AIR1958MP341 Hari Bilash Shau v. Narayan Das Agarwala ILR (1938) Cal 680 : AIR 1938 Cal 669, Munuswami Chetti v. Muniswami Chetti AIR 1948 Mad 477 and Emperor v. Zibru Tanaii Patil ILR 51 Bom 487 : AIR 1927 Bom 363.
4. For the foregoing reasons I hold that the appellants have not committed any offence. I allow the appeal arid set aside the convictions and sentences passed against the appellants. They are on bail. Their bail bonds are discharged. They need not surrender to the same.