JUDGMENT
Iqbal Ahmad, J.
1. The applicants Mohommad Hasan and Mujai were convicted by a Magistrate of the 1st Class under Section 426, I.P.C., and Mohammad Hasan was ordered to pay a fine of Rs. 51, and in default of payment of fine to undergo six months’ simple imprisonment, and Mujai was, sentenced to a fine of Rs. 315, and in default of payment of fine to undergo three months’ simple imprisonment. The conviction and the sentences have, on appeal, been upheld by the learned Judge.
2. I am far from holding that the judgment of the learned Sessions Judge is satisfactory in every respect, and it appeared to me at one stage of the argument of the learned Counsel for the applicants that the judgment is not in accordance with the requirements of Section 367(1), Criminal P.C., and that in view of the decision reported as Sunhri v. Emperor [1921] 19 A.L.J. 921, I must safe aside the decision of the learned Sessions Judge, and remand the case back to him with a direction to record a proper judgment in the case. But on a further consideration I have come to the conclusion that the judgment of the learned Sessions Judge, though not entirely satisfactory, is one that complies with the requirements of Section 367(1), Criminal P.C.
3. The points that appear to have been argued before the learned Sessions Judge were as to whether or not the branches of the complainant’s trees had been cut; and if they were cut did the applicants before me cut these branches. On both points the learned Sessions Judge has recorded a finding adverse to the applicants. The learned Judge has further noted that he had been through the record, and I must take it that his findings on the points noted above are based on a consideration of the entire evidence in the case. The case is a petty one and already much public time has been wasted over it. The findings of the learned Sessions Judge conclude this application which must be rejected.
4. But out of respect to the arguments addressed at the Bar I must notice certain points that were argued in support of the application, though in my judgment there is no substance in neither of these points. The first point argued was that, there being no finding by the learned Sessions Judge, that the branches were cut with intent to cause wrongful loss or damage to the complainant, the conviction of the applicants under Section 426, I.P.C., was bad in law. In advancing this argument the learned Counsel overlooked the fact that if the branches were cut at the instance of the applicants with the knowledge that the cutting of branches was likely to cause wrongful loss or damage to the complainant, the offence of mischief was complete. It has been further argued that it appeared from the statement of two of the prosecution witnesses that the applicants did not actually cut the branches of the complainant’s trees, but that those branches had been cut by certain persons at the instance of the applicants. He argues that the applicants not having cut the branches could only be convicted of abetting mischief and inasmuch as they were not charged under Section 426/109, I.P.C., they ought to have been acquitted. I am unable to accede to this contention. The point does not appear to have been argued in either of the Courts below, and it was within the province of the learned Sessions Judge to act upon the testimony of the other witnesses for the prosecution and to come to the findings that he has recorded in the case. On those findings the applicants have been rightly convicted and the sentences passed are appropriate. The application is rejected.
