Decided on December 17,1969



- (1.)The petitioners were charged for having committed offences under Ss. 447, 504 and 323 read with S. 34 of the IPC. in the Court of the Judicial Magistrate, First Class (II Court), Hubli. The case of the prosecution was that the two petitioners trespassed into the land bearing R.S. No.228 of Tadasa village in Dharwar District belonging to Thirakappa (PW. 1) and caused hurt to him and his servant Gouse Sab (P. W. 7) on 30-9-1967. The defence of the petitioners was that they and P.W. 1 had a right to take water from a tank to their lands which were adjoining each other; that on 29-9-1967 P.W.I had taken water to his land; that on the date of the incident when they went to the land in order to take water, they found P.W. 1 taking water to his land thouph he was not entitled to take water on that day. Therefore, they diverted the flow of water to their land. In the meanwhile, According to them, P.W. 1 came there and stopped flow of water to their land. Thereafter, there was exchange of words between them and in that process one caught the other and there was a scuffle between them and thereafter they and P.W. 1 and his servant P.W. 7 went away from the field.
(2.)The prosecution has mainly relied on the evidence of P.W. 1 and P.W.7 to prove their case. The petitioners did not examine any witness on their behalf. The learned Magistrate, after considering the evidence, came to the conclusion that the prosecution has not made out a case against the petitioners for the offences under Ss.323 and 504 IPC. and accordingly he-acquitted them of those offences. However he was of the view that the evidence established that the petitioners had committed offences punishable under Ss. 447 and 324 I.P.C. and accordingly he convicted them for those offences. He did not impose on them any substantial sentence of imprisonment or fine, but released them under Sec.4(1) of the Probation of Offenders Act, directing them to execute a bond for Rs.500 each for good behaviour for a period of three years with a surety each. The petitioners, aggrieved by this decision, filed an appeal to the Court of the Sessions Judge, Dharwar. The learned Sessions Judge acquitted the petitioners of both the offences but convicted them under S. 323 read with S. 34 IPC. and reduced the period of probation to four months. This revision petition is directed against the order of the learned Sessions Judge.
(3.)The facts proved and admitted are these. PW.1 Thirakappa was, the owner of the land bearing R.S. No. 228 of Tadasa village. The petitioners were the owners of the land adjoining to R. S. 228. It is admitted that both P.W.1 and the petitioners were entitled to take water from a common tank to their lands. The evidence this case shows that P.W. 1 had taken water to his land on the previous day. On the next day when the petitioners went to the land with a view to take water to their land, they found, PW. 1 though he had taken water to his land on the previous day, was continuing to take water on that day also. The incident admittedly took place in the afternoon. Therefore, it is clear that P.W. 1 must have taken, water to his land even on that day from morning.

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