The essential ingredients of the offence under Section 430, Indian Penal Code, and the factors to be considered in determining the accused's intention to cause wrongful loss.

JUDGMENT :

S. Acharya, J. - The complainant on special leave preferred this appeal u/s 417(3), Code of Criminal Procedure against the judgment of acquittal passed by the Sub-divisional Magistrate, Bhadrak, acquitting the six Respondents who were charged, of an offence u/s 430, Indian Penal Code.

2. The prosecution case in a nut-shell is that on 26-11-1964 the accused persons closed by filling up a water course, flowing through a portion of Anabadi plot No. 1953 in village Kubera, through which the complainant was getting water to a tank in his enclosed homestead, which water he utilized for his agricultural and domestic purposes.

3. The defence put forward by Respondents 1, 2 and 3 was that there was no such Nala, as alleged by the complainant, which was filled up by them on the date of occurrence, and that they on a previous occasion filled up a Nala which they themselves had dug on the Anabadi land in the village for irrigating their own land, and this filling up was 'not in any way detrimental to the interest of the complainant, and that this was a false case foisted against them. Respondents 4, 5 and 6 pleaded, in short, that they bad nothing to do with the filling up of the Nala in question, and that this false case was instituted against them to harass them. It is to be noted here that Respondents 1 and 2 are two brothers, and Respondent No. 3 is the son of Respondent No. 14. The learned Magistrate on a discussion of the evidence on record and the defence taken by Respondents 1 to 3, arrived at a finding that on a small portion of Anabadi plot No. 1953, there existed the Nala in question, which was not a natural water course, but was dug out from the nearly natural water channel just to divert from its flow of some water through the Anabadi land, evidently for the benefit of the adjoining land owners including the complainant and the accused Chemei Jena. I am satisfied that the,above is a correct finding being amply supported by the materials in record.

5. Mr. P.V.B. Rao, the learned Counsel for the Appellant, seriously contended that the learned Magistrate did not direct his attention to the ingredients of the offence u/s 430, Indian Penal Code of which all the accused persons stood charged; and also overlooked certain salient features of the prosecution case, and as such arrived at an incorrect finding.

6. One of the reasons which impelled the learned Magistrate to acquit the accused persons was his own appreciation and consideration of Ext. 2, a petition dated 1-7-1964 by the complainant to the S.D.O. Bhadrak, alleging that the Respondents 1 to 3 filled up a small portion of the Nala in question on or about 28-6-1964. As that petition was made about five months before the alleged date of occurrence it led the learned Magistrate to conclude that there was no occurrence on 26-11-1964 as alleged by the complainant. I am not satisfied with the reasonings adopted by the learned Magistrate in arriving at the aforesaid finding. In Ext. 2 the complainant, then praying for the S.D.O's. intervention, mentioned inter alia, that the opposite party therein, i.e. the Respondents 1 to 3 filled up only a small portion of the Nala, but were prevented from further filling it up by the constable on duty and the gentlemen of the village. There is nothing in Ext. 2 from which the Magistrate should have arrived at the conclusion that Ext. 2 belied the entire prosecution story, and that the eye-witnesses were not witnesses of truth and were not worthy of credit. The learned Magistrate in considering the above aspect of the matter did not bestow proper consideration to a few other documents and the evidence on record. In connection with the complainant's above mentioned petition Ext. 2, the Revenue Inspector reported to the R.D.O. on 10-10-1904 by Ext. 5 that because of crops on the land and water in the Nala and accumulation of rubbish at the place he could not measure the plot in question, and prayed for further time to do the same. Ext. 6 date