JUDGMENT 1. In this case a rule was issued calling upon the District Magistrate of the 24-Pergunnahs to show cause why the conviction and sentence of the Petitioners, should not be set aside on the ground that on the findings of fact that the channel in question was cut in the Petitioners' own land, the conviction for the offence of cutting it could not he had. The complaint lodged by Gobind Chandra Roy, naib of Babu Baroda Prosad Roy Chowdhury, was that Hari Bosu alias Shoshi Bhushan Bose, Jaleswar Singh and others, men of Babu Siba Nath Das, about 30 in number, on the 12th to 15th July last cut a channel across the land of his master from Buner Jhil, a jhil the property of his master to a channel to the north and by so doing let out the water and fish from the jhil causing loss to the extent of Rs. 1,000. The Petitioners denied that they took any part in making the channel or that it was cut in the land of Babu Baroda Prosad Roy Chowdhury. Babu Baroda Prosad Roy Chowdhury claimed to be in possession of the land as gantidar, but it was held by the Magistrate in the first Court that he had been dispossessed of the land before the alleged occurrence and that the zemindar Babu Siba Nath Das was in possession. The Magistrate, however, held that Babu Baroda Prosad Roy Chowdhury had been proved to be in possession of the jhil and that the cutting of the channel connecting the jhil with the channel on the north had caused wrongful loss to him. The fish from the jhil escaped through the cutting into the channel to the north and in consequence the owner of the jhil was unable to let out the right of fishery in the jhil which in previous years had brought him in Rs. 160. A suggestion, it seems, was offered on behalf of the defence that the cutting was justified in order to prevent loss to crops from an accumulation of rain-water. The Magistrate, however, held that this defence was inconsistent with the other defence put forward that the accused took no part in the cutting, and also that it was not proved by any evidence. He accordingly found the Petitioners guilty of mischief and of being members of an unlawful assembly and sentenced them under secs. The Magistrate, however, held that this defence was inconsistent with the other defence put forward that the accused took no part in the cutting, and also that it was not proved by any evidence. He accordingly found the Petitioners guilty of mischief and of being members of an unlawful assembly and sentenced them under secs. 426 and 143 to pay a fine of Rs. 25 each for each offence. 2. The conviction and sentence was upheld on appeal by the District Magistrate. In support of the rule it has been contended that the Petitioners had a perfect right to make the cutting in the land of their master and that for so doing they cannot be convicted of mischief because the fish escaped from the jhil of complainant's master. No doubt they had a right to make a cutting in their land, but it does not follow therefrom that they had a right to extend that cutting beyond and through the bank of the jhil which with the jhil itself and the land underneath the water were in the possession of Babu Baroda Prosad Roy Chowdhury. It has been suggested that at civil law they would not be liable to an action for damages for making the cutting, and that therefore they are not liable criminally. We are not however able to assent to the view that they would not be civilly liable though the question might have been open to argument if they had cut only up to their boundary and the water had escaped from the jhil without their making a cut into it, but the jhil with its bed containing banks were the property of Balm Baroda Prosad Roy Chowdhury and by cutting the banks so as to let out the water and the fish they would have committed a wrong for which a civil action would lie. On that ground therefore we do not think the conviction was open to objection. The suggestion that the charge was not correctly framed is not of much weight. The evidence was distinct as to the loss occasioned by the cutting of the channel. The defence could not have been and were not misled by any defect in the charge and under sec. 225, Cr. P. C., any such defect cannot be regarded as material. The suggestion that the charge was not correctly framed is not of much weight. The evidence was distinct as to the loss occasioned by the cutting of the channel. The defence could not have been and were not misled by any defect in the charge and under sec. 225, Cr. P. C., any such defect cannot be regarded as material. In our opinion no ground exists for interfering with the conviction and sentence, and we discharge the rule.