Patna High Court
Banamali Kumar And Ors. vs Emperor on 6 November, 1924
Equivalent citations: 86IND. CAS.58, AIR 1925 PATNA 389(1)
JUDGMENT Foster, J.
1. Each of the petitioners has been fined Rs. 60 on a conviction under Section 426, Indian Penal Code. The prosecution case is that the first petitioner who is a co-sharer of the complainant in the village Deogaon cut the embankment of a reservoir which was their common property and in doing so committed mischief as defined in the Code. It is alleged that the first petitioner was aided in so doing by the other petitioners. A charge was framed under Section 430, Indian Penal Code, but the conviction was under Section 426. It is urged that this conviction is illegal. But it is clear that the law empowers, the Magistrate to convict of the minor offence. I refer to Section 238 of the Cr. P.C. Then it is contended, if I have understood properly the point advanced, that the Courts below made a confusion of the acts of cutting the bundh and selling the fish with the result that the second and the third petitioners who only purchased the fish were made by an oversight liable for mischief to the bundh. I have looked at the judgment and I do not think that there was confusion. I find definite findings that each of the appellants cut the bundh in such a manner and with such intention as to commit the offence of mischief.
2. The last point urged is that the examination of the accused was not such as is indicated in Section 342 of the Cr. P.C. and, therefore, the trial was vitiated. After the examination of the prosecution witnesses each of the accused was asked "Did you cut the Deogaon bundh and drain out the water which is used by men and cattle?" and the answer of each accused was a statement of his defence case which has been discussed in detail in both the judgments. When the accused were about to be called on for their defence after the charge had been framed the Court asked "Have you any statement to make" and the accused said "No". From the record it is clear that the purpose of s.. 342 to enable the accused to explain any circumstances appearing in the evidence against him had been fulfilled' and it is net asserted in argument here that anything that the accused wished to say had not been recorded. It appears to me that this argument has no substance.
3. The Rule is discharged and the application dismissed.