P. L. BHARGAVA, J.

( 1 ) BABBAN Lal was formerly the patwari of village Bijaura, P. S. Mardah in the district of ghazipur. In October 1946 he was appointed to officiate as supervisor kanungo of Zahurabad with head-quarters at Qasimabad, to which place he shifted from Bijaura. He has sixteen or seventeen bighas of occupancy land in village Bijaura. It is recorded either in the name of Lallan prasad, his brother, or in the name of Bhagwan Prasad, a cousin of his. It is said that while he was away, on the morning of 15th Jane 1947, Babban Lals house in village Bijaura was looted and razed to the ground.

( 2 ) ON 19th June 1917, Babban Lal made a report at P. S. Mardah alleging that the appellants and twenty-nine other persons had, on 15th June 1947, in the morning raided his house and, having broken the lock on the outer door of the house, removed the goods lying therein, dismantled the roofs and the walls of the house and removed the door leaves, etc. , and threw the clay of the walls into a ditch. The police re. gistered a case Under Section 454, Penal Code, against the persons named in the report, and after investigation sent them up for trial.

( 3 ) THE case for the prosecution was that the father and the grand father of Babban Lal were also patwaris of village Bijaura. The grand-father of Babban Lal had constructed a house in the village. It fell down and its site became parti. The father of Babban Lal constructed another house in the village to the east of the house of Sheopujan Singh, who is one of the appellants. There was a narrow lane between the new house of Sheopujan Singh, In March 1947 Sheopujan singh demolished the western wall of the house of Babban Lal which had been constructed by his father and started making constructions so as to include that wall and the lane in his house. Babban Lal thereupon instituted a suit against Sheopujan Singh in the Court of Munsif of saidpur for injunction and damages. This suit offended Sheopujan Singh who, with the help of raghunath Singh and other appellants, on the morning of 16th June 1917, proceeded to the house of Babban Lal and looted the same and razed it to the ground as stated above.

( 4 ) THE civil suit instituted by Babban Lal was decreed on 4th March 1948; and the decree was upheld in appeal, which was decided on 15th November 1948.

( 5 ) THE appellants were charged with having committed dacoity, an offence punishable Under section 395, Penal Code and committed to the Court of Session. At the trial the appellants denied having committed any offence; they even denied the existence of the house said to have been looted and razed to the ground.

( 6 ) THE learned Sessions Judge found that the house in question did exist to the east of the house of Sheopujan Singh, one of the accused persons and it was worth about Rs. 200/-; that the said house was dismantled and its materials were removed and thrown away; and that the appellants were responsible for the same. The learned Judge summed up his conclusions thus :

". . . . . . . Babban Lal had a small house to the east of the house of Sheopujan Singh accused and in view of the civil litigation Sheopujan Singh accused took the help of Baghunath Singh accused and both broke open the look of the house and then got it dismantled and its materials thrown away by some of the accused among whom the presence of Kelawan, Naubat, Jhillu, Hardeo, pattu, Sukhnandan, Chhotu, Sahdeo, Dukhanti and Kalapnath accused is certain. This is what is established and borne out by the evidence. There can be no doubt that Babban Lal has exaggerated the matter to a considerable extent, but to say that nothing happened as the defence would have us believe, is also absurd. "

( 7 ) THE learned Judge further found that an offence Under Section 395, Penal Code, was not made out and the appellants had, with the intention of causing wrongful loss or damage to babban Lal, caused the destruction of his house and had thereby committed mischief, an offence punishabl

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