The mens rea required for the offence of mischief under Section 426 I.P.C. must be carefully considered, and a claim of right can be deemed a pretence if it is used to cause harm, especially after the issuance of an injunction order by a civil court.

The unsuccessful appellants in Criminal Appeal No. 7/78 on the file of the Chief Judicial Magistrate, Thodupuzha, are the revision petitioners herein. The Judl. 2nd Class Magistrate, Thodupuzha in C.C. 631 of 1977 convicted them for an offence under Section 426 I.P.C. and sentenced them to pay a fine of Rs. 100/- each and in default to undergo simple imprisonment for 15 days each. They were acquitted of the charge under Section 291 I.P.C.

2. The de facto complainant examined as P.W. 1, in the trial court filed a complaint before that court on 10-10-1977 alleging that on the morning of 6-10-1977 the revision petitioners-accused, who are owners in possession of the paddy field lying adjoining the paddy field of P.W. 1 and at a higher level, cut open three sluices in the intervening bund and let out excess water from their field to the field of P.W. 1 and thereby inundated it and prevented him from carrying on agricultural work, as a result of which he sustained loss of Rs. 30/-. A complaint was forwarded to the Sub-Inspector of Police. Thudupuzha under Section 156(3) Cr.P.C. The latter registered a case as Crime No. 214/77 as per Ext. P. 4, F.I.R. under Sections 426 and 291 I.P.C. investigation was conducted by a Head Constable of Police. P.W. 5 and the Sub-Inspector of Police laid the charge. The trial court framed charges under Sections 426 and 291 I.P.C. against the accused. They pleaded not guilty. The prosecution examined 5 witnesses and marked Exts. P. 1 to P. 4. The defence did not tender any evidence. The accused, when questioned, stated that the sluices were in existence from time immemorial and the water was being all along let into the lower field, that this was being done in exercise of a right of easement and that they had no intention to cause any damage or loss to P.W. 1. The learned Magistrate, however, accepted the prosecution version of the occurrence as true and convicted them under Section 426 I.P.C. but acquitted them under Section 291 I.P.C. on the ground that a public nuisance had not been established. The conviction and sentence were confirmed by the Chief Judicial Magistrate, Thodupuzha.

3. The accused, father and son, owned and possessed a paddy field adjoining to and at a level higher than the field of P.W. 1 P.W. 1 alleged that in the bund in between the two paddy fields there were no sluices or openings and there was an earlier attempt by the accused to open sluices and thereupon he filed a suit O.S. 165/77 before the Munsiff's Court, Thodupuzha and obtained an injunction order, a copy of which is Ext. P. 2. The injunction order was served on the accused. However, on 6-10-77 in violation of the injunction order and with intention of causing wrongful loss to P.W. 1 they cut open three sluices in the intervening bund as a result of which excess water from the higher field collected in the lower paddy field of P.W. 1 and prevented him from conducting agricultural operations like ploughing which was being done by engaging a labourer P.W. 3. and P.W. 1 sustained a loss of Rs. 30/-. The accused contended that they had an easement right to let out excess water to the, (paddy field of P.W. 1. asserted that the sluices were very old sluices and denied having made any sluices on 6-10-1977. They also contended that they were not aware of the injunction order. Besides examining the complainant to speak about the occurrence on the basis of which the prosecution was launched, P.Ws. 2 and 3 were examined to speak about the occurrence. All the three witnesses not only spoke to the occurrence, but also deposed that there were no pre-existing sluices in the intervening bund and that for the first time they were made only at the time of occurrence by the accused. P.W. 3 was actually ploughing the field of P.W. 1 at that time P.W. 2 was actually working for the accused in the upper field of the accused. This evidence is supported by the scene mahazar Ext. P. 3 attested by P.W. 4 and prepared by P.W. 5. Their