JUDGMENT Geidt, J. - The accused in the two cases are tenants in village Belun, which is let in thika to the Sathi factory. There is a pyne or water channel running through the village by which water is conveyed for the irrigation of the zerait lands of the factory. The accused are found to have cut the embankment of this pyne with the object of irrigating their own fields, and have been convicted of theft of the water under sec. 379 I.P.C., and also of mischief by doing an act which caused, or which they knew to be likely to cause a diminution of the supply of water for agricultural purposes, the latter being an offence punishable under sec. 430. Each of the accused has been sentenced to pay a fine of Rs. 25. The Sessions Judge is of opinion that in the circumstances of the case, and on the findings of the Magistrate, the convictions cannot be sustained under either of these two sections, and he has accordingly referred the cases to this Court with the recommendation that the convictions and sentences be set aside. I agree that the conviction under sec. 379, I.P.C. cannot be sustained. The water runs freely through the channel from the river and flows into some khal or jhil unless it is diverted for irrigation. This fact distinguishes the present case from that quoted by Mr. Garth, viz., Ferens v. O'Brien 11 Q.B. 21 (1883), where the water was confined in pipes which were closed by taps. There the water was reduced into the possession of the water company which supplied it. In the present case the water running freely along the channel is not reduced to possession till it is actually brought on to the land irrigated. The factory, therefore, cannot be said to have been in possession of the water taken by the accused, and the offence of theft was not committed by taking it. 2. The ground, on which the Sessions Judge holds that the conviction under sec. 430 is bad, is that the Magistrate has found that there is no evidence to show that the accused knew that the wait lands of the factory or the lands of any one else further down the pyne were being irrigated. 2. The ground, on which the Sessions Judge holds that the conviction under sec. 430 is bad, is that the Magistrate has found that there is no evidence to show that the accused knew that the wait lands of the factory or the lands of any one else further down the pyne were being irrigated. The Sessions Judge points out that for all the accused knew the water in the pyne might be running to waste, and it cannot therefore be held that the accused were likely to cause wrongful loss to other people who were irrigating their lands lower down the pyne. In his view, therefore, one of the elements of mischief was wanting. It is clear, however, that the act of the accused caused a diminution of the supply of water for agricultural purposes. (In one of the cases the Magistrate says that most of the water was being taken out of the pyne). The supply of water available for irrigation being thus lessened, its value or utility was diminished whether it was actually being used or not. If the accused were not entitled to take the water, they would by their act be causing wrongful loss to those to whom the pyne belonged, and to those who were entitled to take the water, and if they knew that they were not entitled to take the water, they must have had the intent to cause or knowledge that they were likely to cause wrongful loss, and their act would be punishable under sec. 430, Penal Code. 3. It was therefore for the prosecution to prove (1) that the accused were not entitled to take the water and (2) that they knew that they were not entitled to take the water. The Magistrate has found both these points against the accused. He has held that the factory constructed the pyne, and that the Manager has always kept under his control the distribution of water therefrom. He has also held that the accused were not acting under a bond fide claim of right. On these findings, which are findings of fact, the accused were guilty of the offence provided for in sec. 430. 4. He has also held that the accused were not acting under a bond fide claim of right. On these findings, which are findings of fact, the accused were guilty of the offence provided for in sec. 430. 4. This Court does not ordinarily Interfere on revision with findings of fact, and it never Interferes with such findings unless it is clearly satisfied that the findings are wrong or that there is no evidence to support them. To proceed otherwise would be to treat as appeals cases coming before us on revision. 5. As regards the construction of the pyne there is evidence that the pyne was constructed and is maintained by the factory, and the Magistrate points out in the case of Sheik Harif that the evidence of two out of the three witnesses for the defence is to the same effect. Prima facie then the accused were not entitled to take the water. But it is said that having regard to the history of the pyne, the accused may have been under the bon fide belief that they were entitled to take the water. The pyne may have been constructed and may be maintained by the factory, and the primary use to which the pyne has been put may have been the irrigation of the factory zerait. Nevertheless the evidence shows (and it is not disputed) that the villagers, holding land along the pyne, including the inhabitants of the Belun village have in past years irrigated their lands from the factory, that this has been going on for the last twenty years and that the raiyats have latterly been paying to the factory irrigation charges at the rate of 11/2 as a bigha. But the evidence also shows, and this evidence has been believed by the Magistrate, that the villagers used the water not as of right but by permission. The raiyats in return for growing indigo for the factory were allowed to irrigate from the pyne not only the indigo but other crops as well. The irrigation charges, moreover, are paid not for the use of the water but for the work done by the factory at the request of the villagers themselves. That work is the clearance of the branch distributaries leading from the pyne to the village lands. The irrigation charges, moreover, are paid not for the use of the water but for the work done by the factory at the request of the villagers themselves. That work is the clearance of the branch distributaries leading from the pyne to the village lands. Formerly the poor villagers had to do this work and the rich villagers got the water first, and so, to give an equal chance to all, the factory clears these branch channels. Some of the villagers themselves may be employed in the actual work but they are paid by the factory, which recoups itself by levying the charges mentioned. This is an arrangement made by mutual agreement. The evidence also shows that the factory has had the entire possession and control of the village irrigation, deciding which village in turn shall be allowed to use the water, and this is confirmed by the fact that while pynes are usually a fruitful source of quarrels among the villagers using them, in the case of the present pyne these quarrels have been conspicuous by their absence through its entire history. It is true that in a few cases the pyne has been cut and the water used without permission first obtained, but the Manager, Coffin, deposes that all these oases were settled by him, that is the factory's right to the exclusive control of the pyne was asserted on one side and admitted on the other. 6. No doubt the present cases would not have arisen had not the raiyats ceased to grow indigo for the factory. The arrangement, whether express or implied, was that the raiyats if they should grow indigo, a crop which does not ordinarily pay them, would be allowed to irrigate both their indigo and their oats, but this concession was not as of right but on permission in each case obtained. When the raiyats ceased to grow indigo, the existence of the arrangement could not give rise in them to the belief that they were nevertheless entitled to take the water, and the manager on his side recognising that the arrangement was at an end ordered that the irrigation charge for the year 1315 the year in which the occurrence took place should not be levied. Whether this order was or was not known to the villagers makes no difference. Whether this order was or was not known to the villagers makes no difference. The material circumstance is that hitherto the exclusive possession and control of the factory has been admitted by taking permission beforehand, or by settling the few cases where this was not done. 7. There is not only no reason for thinking that the accused had a bona fide belief that they were entitled to take the water, but their own conduct in running away when they were discovered cutting the pyne, and afterwards sending for permission, shows positively that they had no such bon fide belief. 8. In this view of the matter I am unable to hold on the findings that this was not a matter for the Criminal Court. I would accordingly refuse to interfere with the conviction under sec. 430 while setting aside the conviction under sec 379. I would also allow the sentence of fine to stand. 9. Woodroffe, J.--As regards the conviction under sec. 379, I think it cannot stand as it is at least doubtful on the facts proved whether the water can be said to have been so reduced into possession as to be the subject of theft. I agree, therefore, that the conviction under sec. 379 must be reversed. Then as regards sec. 430, I think it may not unreasonably be held on the facts found that the accused did an act which caused or which they knew to be likely to cause a diminution of the supply of water for agricultural purposes. I am, however, myself doubtful whether on the facts proved and the claim of right asserted, this is a matter which should be disposed of in the Criminal Court. Having regard, however, to the three circumstances that the question on this point is one of fact, that my learned brother agrees with the finding of the trying Magistrate on this point, that the conviction is one for mischief and that the sentence is one of fine only, I do not think it necessary to differ from the order he proposes to make as regards the charge under sec. 430, the conviction under which section must therefore stand.