Skip to content


Banwari Karmakar Vs. Gosto Behari Karmakar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.655
AppellantBanwari Karmakar
RespondentGosto Behari Karmakar and ors.
Excerpt:
penal code (act xlv of 1860), section 430 - mischief by injury to ivories of irrigation--minding sufficient for conviction--burden of proof. - .....been stated in court and not denied that the complainants and the accused are tenants under the same landlord. it appears that, only a comparatively recently, the accused has taken settlement of the tank from which water flows into the nala which is alleged to have been stopped up. those fasts to which i have referred are sufficient to show that the prosecution did not prove sufficient to establish their alleged right. it may be possible on some occasion, if it is thought necessary, for them to prove their case. but at the present moment i am not satisfied that in these proceedings the complainants have discharged the onus which lay upon them under section 430 of the indian penal code.3. for these reasons, i think that the rule must be made absolute. the fine, if paid, will be.....
Judgment:

Lancelot Sanderson, C.J.

1. In my judgment this Rule must be made absolute.

2. The charge against the accused was under Section 430 of the Indian Penal Code. To appreciate the meaning of that section it is necessary to refer to Sections 425 and 23 of the same Code; and, when those section are read, it is clear that, in order to substantiate an offense under Section 430, the prosecution must prove that there has been unlawful and intentional interference on the part of the accused with the admitted or proved rights of the complainant. In this case the finding of the District Magistrate is this: 'It is clear from the evidence that the tank formerly had a nala which has been closed by the appellant. The inference is, that it was used for irrigation. That it was so used regularly is not shown the fact evidently is that the water wad taken only in a year of draught like last year and the claim for regular use for irrigation in cold weather is possibly due to the present profits to be obtained from agriculture, a state of affairs which has enabled the landlords to derive recently an income from the settlement of the tank.' To my mind, that is not a sufficient finding to establish beyond all doubt the rights of the complainants to use water from the tank in the way that they allege. Apart from that, it has been stated in Court and not denied that the complainants and the accused are tenants under the same landlord. It appears that, only a comparatively recently, the accused has taken settlement of the tank from which water flows into the nala which is alleged to have been stopped up. Those fasts to which I have referred are sufficient to show that the prosecution did not prove sufficient to establish their alleged right. It may be possible on some occasion, if it is thought necessary, for them to prove their case. But at the present moment I am not satisfied that in these proceedings the complainants have discharged the onus which lay upon them under Section 430 of the Indian Penal Code.

3. For these reasons, I think that the Rule must be made absolute. The fine, if paid, will be refunded.

Mookerjee, J.

4. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //