(Deepak Gupta, J.) - This appeal is directed against the judgment dated 26.11.2001 passed by the Sub Divisional Judicial Magistrate, Rampur Bushehr, whereby he acquitted all the accused of having committed offences punishable under Sections 379, 430 IPC read with Section 34 IPC and under Section 3 of the Prevention of Damage to Public Property Act, 1984 (hereinafter referred to as the Act).

2.On 3.3.1999, PW3 Sanjiv Kumar, Assistant Engineer, Irrigation and Public Health (IPH) Department Sub Division, Kumarisain, filed a written complaint Ex.PW3/A with the Police Station, Kumarsain. In this complaint, it was mentioned that a water supply scheme had been newly constructed by IPH Department for covering the left out villages/hamlets of Gram Panchayat, Baragoan. This scheme was sanctioned after obtaining NOC from the Gram Panchayat and contract for its construction was awarded to Mr. Anurag. The construction was completed on 10.2.1999 and thereafter supply of water was made to the villages including village Darvi. According to this complaint, the complainant had received an intimation from the Junior Engineer, IPH Section of Baragoan dated 1.3.1999 that on 28.2.1999 PW1 Magni Ram had informed the JE that the newly constructed source tank constructed by the IPH Department was damaged/dismantled by the residents of village Teshan on 28.2.1999 at 3.30 p.m. After receipt of the complaint, the complainant had himself visited the spot along with his field staff and found that the intake chamber of phase-dal, side-wall and tap of the tank have been broken and GI pipes have also been damaged. According to this complaint, some steel, manhole, cover, pipes etc. had also been stolen. It was alleged that the accused had broken the tank and stolen the material. The value of the damage caused to the tank was assessed at Rs. 11,500/-. On the basis of this complaint, FIR was lodged and investigation was carried out. After investigation, challan was filed in Court and the accused persons were tried for having committed offences mentioned hereinabove. After trial, all the accused persons have been acquitted. Hence the present appeal.

3.At the out set, it would be pertinent to mention that the main points which weighed with the trial Court in acquitting the accused were that the recovery of the stolen items had not been proved; that there were 27 persons who had broken the water tank but only four were made accused; that no witness had deposed against the accused that they had broken the water tank and had stolen the manhole cover, GI pipes etc.; that two eye witnesses, namely, PW1 Magni Ram and PW2 Tej Raj were interested witnesses; and that the prosecution had failed to prove on record as to what was the amount of expenditure incurred for construction of the water tank.

4.PW1 Magni Ram is a resident of village Darvi which was to be a beneficiary under the said scheme. He states that there is a source of water near his land. The source is in the Government land. According to him, the tank was constructed in his land. The tank was to be the source for supply of water to people of village Darvi. This tank was connected with water pipes to their village. He states that on 10.2.1999, the construction was completed and taps were fitted in their village and water supply started. According to him on 28.2.1999, at about 3.30 p.;m. the tank was uprooted by the four accused persons who are all resident of village Teshan. According to him, a number of other persons accompanied the accused but only the four accused had uprooted and damaged the tank. As a result, the supply of water to their village was stopped. He states that the villagers of Darvi have a right to get water from the source and they have been doing so since time immemorial. He states that on 28.2.1999 itself, he had informed about the occurrence to the Up-Pradhan of the Gram Panchayat and the Junior Engineer. In cross-examination, he states that he is r