Brij Narain, J.C.

1. This is a reference Under Section 438, Cr.PC by the learned Sessions Judge of Tripura recommending that the sentences of fine imposed on Akbar Ulla, Yakub and Ajiruddin Under Section 427, IPC should be set aside while no such report has ben made as against the remaining conviot Chhabed Ulla.

2. I have heard the learned Government Advocate and also the learned Counsel for complainant Farmaj Ulla at length. It appears that three elephants belonging to the accused damaged and destroyed the sugar-cane crop of the complainant on two kanis of land in Silchhera on several dates causing loss to the complainant to the extent of Rs. 300/-. The learned Sessions Judge was of opinion that it was not proved in this case that the three accused whose case has been recommended had an intention to cause any wrongful loss to the complainant and so the latter could seek his remedy in Civil Court,

3. I am unable to agree with the learned Sessions Judge in holding that there is no evidence on this record to show that Akbar Ulla, Yakub and Ajiruddin had no intention to cause wrongful loss to the comnlainant. It is in evidence in this case that these people allowed their three elephants on a number of dates to go and damage the complainants sugar-cane crop. It is further in evidence that the accused never put any ropes around the legs of elephants with a view to give them sufficient freedom in order to damage the crop on an extensive scale. The third and the most important factor which should be taken into consideration in cases like the present is that the accused could normally be expected to take notice of such big animals as elephants leaving their places on a number of dates. If any goat or calf had gone in a similar manner it could possibly be inferred that the accused could not be rendered criminally liable but the consistent conduct of the accused persons in this case shows that they allowed their three elephants to damage the complainants crops systematically on a number of dates with the result that the complainant suffered a loss of Rs. 300/-.

4. It is further in evidence that Imamuddin informed Farmaj Ulla complainant that elephants were damaging the sugar-cane crop at about 11 A.M. on Sunday in the last part of Sravan 1362 T.E. and the complainant informed Chhabed Ulla who promised to send his Mahut (elephant driver) to bring back the elephants. Two of the elephants are said to be jointly owned by Chhabed Ulla and the other accused in this case but no Mahut was sent with the result that the complainants bumper sugar-cane crop was totally destroyed.

5. Section 425, IPC defines "mischief" as follows:

Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief.

6. It appears from the language of the section that a person would be guilty of mischief if he commits any act thereby causing destruction of any property knowing that he is likely to cause such destruction. The accused persons in the present case allowed their three elephants to damage the complainants sugar-cane crop on a number of dates and these elephants were allowed to cause extensive damage as no ropes (as is generally placed in these parts) were fastened round the legs of the elephants. The owners of the elephants were duly informed of the occurrence but even then no action was taken by them to send the Mahut to call back the elephants. As such it can be safely inferred that the accused knew that the elephants w cause wrongful loss to the complainant and even then they allowed their elephants to continue to cause damage to the complainants sugar-cane crop on a number of dates.

7. It has been held that the terms of the section are satisfied when there is a distinct finding on the question of accuseds knowledge, and the question of intention is material only as regards the sentence, vide Ratan Lais Law of Crimes 1953 Edn., page 1089, para 2. A person commits mischief if he causes destruction of property knowing that he is likely to cause wrongful loss or damage to the public or any person even if an intention to cause that damage is not made out vide Kastur Chand v. Emperor .

8. I am, therefore, unable to agree with the learned Sessions Judge in holding that Akbar Ulla, Yakub and Ajiruddin were merely negligent and I am of opinion that they are guilty of mischief and so there is no occasion for setting aside their convictions or the sentences which have been imposed on them.

9. The reference is, therefore, rejected.