1. The petitioner has been convicted of the offence of mischief and sentenced to pay a fine of Rs. 30. The mischief complained of was that he dumped a hundred cartloads of earth upon a portion of survey No. 113 in the zamindari village of Kalagumpudi which is included in the Peddamamidipalli estate. The prosecution was launched by the Revenue Inspector upon the footing that the survey number on which the earth was dumped was Government land, that the said land was used as a thoroughfare and that the dumping of earth upon it had diminished its utility as a thoroughfare. But by the evidence given by the accused it was clearly shown that the land was not Government land and it is not now disputed that it is part of a zamindari of which the proprietor is D.W. 1. But the Courts below have held that even so the land is what is called a puntha' (a thoroughfare for men and cattle), and that the unauthorized dumping of earth upon it amounts to mischief and therefore the petitioner is guilty. There can be no doubt and it is not denied that the petitioner dumped some earth upon some portion of this survey number. The portion so covered now by earth is said to be 26 cents in extent, but that it is only some portion of the survey number is also clear because the 'puntha' is described by the Revenue Inspector as 80 links broad in some places and in others 100 links broad. There is no plan in the case and nothing from which I am able to say what portion of the entire area has been covered by the earth newly thrown upon it, nor in what way the act of the accused has interfered with the use of the land, if it was so used, as a thoroughfare by men and cattle of the village of Kalagampudi. The proprietor denies that the land is a 'puntha' at all. But there are some revenue accounts in which the land is entered as a puntha and the prosecution evidence at its best shows that the survey number is classified in the revenue accounts as a puntha.
2. The question is, assuming that it is a thoroughfare over which the villagers had a right of user either for passing or for stopping and assuming that the accused's throwing earth upon some portion of it has in some way interfered with the use of that portion in the way in which it had been accustomed to be used, whether those facts which are the utmost that can be said to have been proved by the prosecution amount to the offence of mischief of which the petitioner has been convicted. So far as any consent may make any difference, the proprietor, D.W. 1, says that he has no objection at all to the earth being where it was thrown and therefore the question for decision is the same as if the proprietor had either by himself or others had with his consent thrown the earth where it is. I find it impossible to say that, if the owner of land over which another or a body of others have a right either of passage or other use throws earth upon that land so that the use becomes either disadvantageous or impossible, that amounts to mischief within Section 425,1. P.C. The only direct decision upon the point referred to in the argument is an unreported decision entitled Keru (1888) of the Bombay High Court which is referred to in all the commentaries upon the Penal Code, namely, those of Ratanlal, Gour and Nandalal. It was to the effect that, where the accused with intent to cause wrongful loss to the complainant who had a right of way along a flight of steps, caused the destruction of those steps, that act did not amount to mischief for the reason that property under Section 425 means tangible property capable of being forcibly destroyed but does not include an easement. Somewhat to the same effect is the better known decisions of the same High Court in Queen-Empress v. Govinda Punja  8 Bom. 295, where it was held that where the owner of an animal buries the carcass after its death, he is not guilty of mischief or any other offence although he does so with the express object of preventing the Mahars of his village from taking its skin according to the custom of the country. What has happened in this case is that a villager has thrown earth upon a plot of land over which others are said to have a right of use as a thoroughfare. The only value which is diminished or utility which is destroyed is that of the right of thoroughfare because there is nothing to show that the land itself has lost either its value or its utility or is in any way affected injuriously.
3. I must hold therefore that the act of the accused taken in the best light for the prosecution did not amount to mischief and therefore the conviction was wrong. Whether it amounted to some other offence it is not now necessary to say because the dispute really appears to be between the owner of the land, the zamindar and certain officers of Government who at one time thought that it belonged to Government. The fine, if paid, will be refunded.