1. The petitioners have been convicted under Sections 427 and 379, Penal Code and sentenced to pay a fine of R3. 25 each on each count.
2. The case against the petitioners is that they pulled down the walls and part of the roof of the house belonging to the complainant on and June 1948 and caused damage to the extent of RS. 20 or more, and dishonestly removed the roofing materials, The undisputed facts that emerged from the evidence are, that the complainant and the petitioners own adjoining plots of land, namely, plot NOS. 1983 and 1932 respectively; that Plot No. 1933 belongs to the complainant and there is a row of three rooms with a common roof on that plot that plot No. 1932 belongs to the petitioners, and that the disputed house is partly within that plot bounded by A, B, C, D, E, F at S as demarcated in the plan prepared by the mutation officer of Angul. The map shows that the complainant put up the house on a bit of land appertaining to plot No. 1932 belonging to the petitioner. Another fact clearly established by the evidence is that this house is an old house belonging to the complainant and is his ancestral property. The house consists of three rooms admittedly standing on plot No. 1933. Part of the disputed house, however, encroaches upon the land of the petitioner and has been standing thereon for a long time.
3. It would appear that the petitioners prevented the complainant from repairing the wall on 20th January 1948, which led to the institution of a criminal case against them. In that case they were convicted and fined by the trial Court on 28th May 1948 but were acquitted by the appellate Court on 6th July 1948 on the ground that the evidence of possession of the complainant in respect of the demolished wall was unsatisfactory and that the accused had acted under a bona fide claim of right. The present occurrence took place on 2nd June 1948 when the petitioners demolished 6/8ths of a room, pulled out the roof appertaining to that portion and carried away the materials. On these facts the trial Court held that the petitioners acted in a high-handed manner and committed offences of mischief and theft.
4. It is beyond dispute that the wall in respect of which the previous quarrel took place between the parties was one of the walls of the very roof which has now been demolished. It is also clear from the evidence of P. W. 1 that at the time the petitioners demolished the roof they pleaded that they had a right to that portion of the house as it stood on plot belonging to them. It appears to me, therefore, that although the house was actually put up by the complainant's ancestors, it actually encroached upon a tiny bit of land belonging to the petitioners. The complainant also avers that he has himself lost possession of a small portion of laud to the north of his plot, which has been in the occupation of the petitioners for the last three years. It appears to me, therefore, that the parties have been in dispute regarding the boundary wall between their adjoining plots for some appreciable time prior to the occurrence. The question therefore, is whether the petitioners can successfully claim a bona fide right and be entitled to an acquittal.
5. It is urged for the prosecution that having regard to the long possession of the complainant and the undisputed ownership of the house, the accused acted in a high-handed manner in taking the law into their own hands and demolishing the roof. While I agree that the action of the petitioners was certainly high handed, that act is nevertheless not incompatiable with their intention not to cause any mis-chief to the complainant, but only to establish what they believed to be their right however ill-founded or misconceived. What the criminal Court has to ascertain is not whether the act of the accused has resulted in any loss to the complainant but whether the necessary mens rea was responsible for the accused's committing the act. In view of the fact that the parties have been quarreling over the boundary line for a long time, it would not be safe to dismiss the contention raised on their (petitioners') behalf that they acted under a bona fide belief that portion of the house which abutted on their plot belonged to them only. While, therefore, I am inclined to accept the complainant's version that the materials of the demolished portions are his, I am bound to give the benefit of doubt to the petitioners so far as the offence of mischief and theft is concerned and absolve them of any criminal intent, however reprehensible or highhanded their action might have been. It will be open to the complainant to recover the value of the materials alleged to have been carried away by the petitioners through the proper Court, and also, if so advised establish his right to remain in occupation of the disputed portion of the holding by reason of his long possession by taking action in a civil Court.
6. The conviction and sentence of fine imposed on the petitioners are set aside, and this revision is allowed.