1. The applicant was convicted under Section 429, I.P.C. for the offence of mischief by causing the death of a young buffalo by hitting it with a stone, and sentenced to pay a fine of Rs. 40/-. The prosecution alleged that on 12.12.51 the complainant's buffalo had trespassed into the applicant's field and while the applicant's daughter was driving it away, the applicant who was driving his 'kos' left it and threw a stone weighing about a pound and a half at the buffalo which hit it on its forehead as a result of which it died. The applicant's defence was that in throwing the stone at it, he had no intention to cause any injury to the buffalo but he merely wanted to drive it away. The learned Magistrate held that as the applicant's daughter was driving it away, there was no need for the applicant to leave his kos and in throwing the stone at it and killing it, an intention or knowledge that wrongful loss would be caused to the owner must be imputed to the applicant and as a result of these findings he convicted and sentenced the applicant as stated above.
The Sessions Judge, Central Saurashtra Division, has made this reference against the learned Magistrate's order recommending that the applicant's conviction should be quashed as in his view in throwing the stone at the buffalo the applicant's intention was to drive it away and to protect his property from trespass and not to cause any wrongful loss to the owner by killing It.
2. The offence of mischief under Section 429 is committed if the offender commits mischief by killing, poisoning, maiming or rendering useless any buffalo etc. Under Section 425, I.P.C. a person is said to commit mischief with intent to cause, or knowing that he is likely to cause, wrongful loss to a person causes the destruction of any A property. The existence of the requisite intention or knowledge is therefore an essential ingredient to the offence and the accused cannot be convicted under Section 429, I.P.C. unless it is shown that the act of killing etc., was with the requisite intention or knowledge.
In this case, the buffalo was actually in the applicant's field when he threw the stone at it. It is true that his daughter was driving it away and it would have been better if he had allowed her to do so. But the applicant had a right to assist his daughter and in throwing the stone at the buffalo his intention was to protect hi3 property from trespass rather than to cause any harm to the animal. The stone which hit the buffalo has not been produced and it is therefore impossible to say that the applicant selected a particularly heavy stone out of all proportion to the needs of the occasion from which an inference of guilty intent or knowledge can be made.
The learned Magistrate has quoted from the decision in - Mahadeo v. Emperor AIR 1916 Nag 14 (A), in support of his order. The quotation shows that the accused in that case had thrown a stone at a cow maiming it 'after' he had driven it out of his master's field. The learned Sessions Judge has pointed out that in this case the buffalo was actually in the field when the applicant threw the stone and this fact distinguishes it from the decision relied upon by the learned Magistrate. We do not mean to say that a person can intentionally kill or maim an animal trespassing upon his property. But he has a right to use reasonable force to protect his property against trespass so long as the trespass continues, and it is not proved in this case that the applicant used force in excess of the needs of the occasion. We regret the unfortunate loss of the buffalo but we agree with the learned Sessions Judge's opinion that the offence under Section 429 has not been established against the applicant. The reference is therefore accepted and the applicant's conviction is set aside. The fine, if paid, is ordered to be refunded to the applicant.