Judgment Choudhary, J. 1. The petitioners have been convicted under Sections 277 and 423, Penal Code. They were sentenced by the trying Magistrate to pay a fine of Rs. 60.00 each, or, in default, to undergo rigorous imprisonment for one month under Sec.277, Penal Code and to pay a fine of Rs. 25/- each, or in default, to undergo simple imprisonment for one month under Sec. 426, Penal Code. On appeal the Court of appeal below maintained the order of conviction passed under both the sections, but set aside the separate sentence passed under Sec. 420, Penal Code. 2. The case of the prosecution is that in village Musahari the complainant Musammat Dirnago Kuer has a house in front of which there is a sahan and on that sahan she has got her well. The petitioners who were offended against her for some reasons, dismantled the jagat of the well and in their act of dismantling some portion of the jagat also fell into the well. The petitioners are also alleged to have made the drain flow from their house into the well whereby the water of the well had been polluted. 3. The accused pleaded not guilty and alleged that they did not break any portion of the Jagat or connected their drain with the well. 4. The trial Court accepted the prosecution case and convicted and sentenced the petitioners as stated above. On appeal the sentence was reduced to this extent that no separate sentence was passed under Sec. 426, Penal Code. 5. Mr. Ghosh appearing for the petitioners has argued that even on the allegations of the complainant there could not be any conviction under Section 277, Penal Code in law. According to this section water of any public spring or reservoir has to be corrupted or fouled by the act of an accused. It is argued, firstly, that a well is neither a spring nor a reservoir, and, at any rate, the well in question was not a public well. The complainant has herself claimed the well to be her private well and Mr. Ghosh has argued that in order that this well may be called a public well it must have been given to the public by grant, or the right to it may have been acquired by the public by prescription. The complainant has herself claimed the well to be her private well and Mr. Ghosh has argued that in order that this well may be called a public well it must have been given to the public by grant, or the right to it may have been acquired by the public by prescription. In support of his argument he has relied on the case of -- Smith V/s. Archibald, (1880) 5 AC 489 (A). The argument does not seem to be without substance. The Court of appeal below has considered the well to be a public well, though it was claimed by the complainant to be her private one, on the ground that some of the neighbours are permitted to draw water from that well. They may have been drawing the water from the well by licence. But there is nothing to show that they have been using the water of this well by right which one has got in a public well. The Court of appeal below also relied on the case of -- Ram Karanlal V/s. Emperor, AIR 1916 Nag 15 (1) (B) for the purpose of holding that the well is a public well if people are allowed to use its water. From the report of that case it is not possible to find out as to what were the facts of that case. It is not known whether the well was used as a matter of right or by way of licence only. 6. In order to hold the well to be a public well reliance was placed on the case of -- Reg V/s. Wellard, (1885) 14 QBD 63 (C) in which Grove J.observed that "A public place is one where the public go, no matter whether they have a right to go or not." But the question as to the right of the public claiming that place as a public place was not in issue in that case. In that case the prisoner was convicted of indecently exposing his person to diverse subjects of the Queen in a certain place. From the various observations made in the judgment it appears that conviction of the prisoner was not based on the place being a public place. In that case the prisoner was convicted of indecently exposing his person to diverse subjects of the Queen in a certain place. From the various observations made in the judgment it appears that conviction of the prisoner was not based on the place being a public place. Grove, J. held that "Many shows are exhibited to the public on private property, yet they are frequented by the public -- the public go there." and the case was one in which the conviction should be upheld. Huddleston, B. held : "The beach at Brighton is not public property, yet an exposure there is punishable......... The act was in a public and open place, and that disposes of the case, but I am by no means satisfied that indecency before several in a private place is not punishable." Manisty J. held: It must not be taken that I hold it necessary, in order to convict of the common law misdemeanour for indecency towards diverse subjects of the realm, to prove that the indecency occurred in a public place" and Mathew, J. observed: "I think it may be a crime at common law without being in a public place as alleged in the present case." Therefore, that case cannot be taken as an authority for the proposition that, as a general rule, a place is a public place if people are allowed access to it, though they may have no legal right to it. In the present case, however, on the own allegation of the complainant it is clear that it was her private well, and, therefore, Sec.277, Penal Code could not apply to that case. 7. As regards Sec. 426, Penal Code, there is no discussion in the judgment of the trial Court with respect to the offence coming under that section except in the concluding portion of the judgment where it has only stated that "they are further found guilty under Sec. 426, Penal Code, and convicted and sentenced to pay a fine of Rs. 25 each." The lower appellate Court has done nothing more than quoting the language of Section 425, Penal Code, which defines mischief, and from the judgment it does not appear that it was satisfied as to under which of the various alternatives given in that section the case against the petitioners could come. 25 each." The lower appellate Court has done nothing more than quoting the language of Section 425, Penal Code, which defines mischief, and from the judgment it does not appear that it was satisfied as to under which of the various alternatives given in that section the case against the petitioners could come. It has only quoted the section and held that the petitioners were guilty either under one alternative or the other as will appear from the following passage in the judgment: "Then it is clear that the accused persons with the intent to cause wrongful loss or damage to the Musammat caused the destruction of her jagat or caused such change in it as destroyed or diminished its value or utility and so they can be deemed to have committed mischief. I agree with the finding of the learned Magistrate and hold that they have rightly been held guilty not only under Sec.277, but also under Sec. 426, Penal Code." In my opinion, this finding is not sufficient to convict the petitioners. 8 In the result the application is allowed, the order of conviction and sentence passed on the petitioners is set aside and they are acquitted.