JUDGMENT : Ray, J. - The complainant-opposite party owns and possesses plot No. 3390. To the north and south of it, are the lands of one Suba Bewa, which were purchased by the accused persons under Ext. A dated 22-2-1964. To the east of that plot 3390, is the homestead of the accused Petitioners and to the west is a public road running by the side of the purchased lands of the accused-Petitioners and also the complainant's plot No. 3390. It is also admitted by the complainant that the Petitioners used to pass over the southern portion of the plot No. 3390 to reach the public road on the west from their homestead. This was the situation in the locality before the date of occurrence. 2. It is alleged by the complainant that on 30-5-1965 between 8 a.m. to 11 a.m. in the morning, the accused persons cut the complainant's northern boundary fence and dug a ditch on his plot No. 3390 and put up a new fence by encroaching upon his plot and also assaulted him when he objected to such encroachment and cutting of his fence. He accordingly filed a complaint petition before the Sub-divisional Magistrate, Jajpur, on 31-5-1965. 3. After his initial deposition was recorded the complaint petition was sent to the Sarpanch of Ananthapur Grama panchayat for enquiry and report. The report of the Sarpanch was submitted on 12-7-1965 wherein be clearly records that the accused persons cut the bamboos from a clump of bamboos standing on their purchased land to the north of plot No. 3390 and dug a ditch there to extract the roots from the said clump, and after the roots had been extracted the ditch was refilled. He, therefore, discredited the complainant's story that the accused persons had dug a ditch on his plot. He, however, after measurement by an Amin procured by the complainant found that the accused persons had encroached about two Kadis width of land on the north-east corner of plot No. 3390 by putting up a fence on their purchased land from Suba Bewa under Ext. A. With regard to assault, the Sarpanch found that there was threat of assault, but factually no criminal force was used as the gentlemen of the village intervened in the matter. 4. A. With regard to assault, the Sarpanch found that there was threat of assault, but factually no criminal force was used as the gentlemen of the village intervened in the matter. 4. After receipt of this report from the Sarpanch, the Magistrate took cognizance of the case and summoned the accused Petitioners to stand their trial under Sections 427 and 353, Indian Penal Code, which was numbered as case No. I.C.C. 393/65/1550 T/65 in the Court of the S.D.M. Jaipur. 5. The learned Magistrate came to the conclusion that the story of assault was true, but yet he declined to convict the Petitioners u/s 353 on the ground that no charge in either u/s 323 or u/s 353, Indian Penal Code had been framed. He however, found that the fence had been cut and the ditch had been dug as alleged by the complainant, causing him a loss of less than Rs. 50/-. He accordingly convicted the Petitioners u/s 426, Indian Penal Code, and sentenced each of them to pay a fine of Rs. 30/- in default to undergo R.I. for one month each. 6. The first ground urged is that once the Magistrate sent the case for enquiry, and the enquiry report disclosed no offence to have been committed as alleged in the petition of complainant, the Magistrate's action in taking cognizance of the case, thereafter, in absence of any fresh material on record displacing the conclusion of the enquiry report or us bearing in new evidence in support of the case was without jurisdiction. 7. Undoubtedly, it would be irregular for the Magistrate, who has sent the case for enquiry not being prima facie satisfied with the truth or otherwise of the case as stated in the complaint petition and as disclosed in the initial deposition of the complainant, to still act upon the same later on, in face of the enquiry report which negatives the truth of the prosecution case. The law does not compel a Magistrate, acting u/s 190, Code of Criminal Procedure to act on the findings of the enquiry report, and if he does so, it would not be without jurisdiction, though it would be highly irregular and in the absence of any feature supporting the action of the Magistrate to review his own' mental attitude, a revisional Court may be inclined to and will quash such an order initiating the criminal proceeding. But that question in the present case does not fall for consideration, because the report of the Sarpanch clearly finds that the accused persons had encroached upon north-east corner of the land of the complainant and had enclosed the same by putting up a boundary fence. Though on the question of digging of a ditch on the land of the complainant and the story of assault the Sarpanch had submitted a negative report, nevertheless a part of the prosecution case having been believed to be true, the Magistrate was justified in issuing the summons. Therefore, this contention has no force, and must be rejected. 8. The next contention is that there is no evidence of (sic) as contemplated u/s 425, Indian Penal Code, and in absence of any independent evidence in proof of intention or knowledge on the part of the Petitioners to cause wrongful loss or damage, having been adduced in the case, the conviction u/s 427, Indian Penal Code cannot stand. It is true that mens rea is an essential ingredient of the offence of mischief and the evidence of the same may be inferred from the overt act done by the accused. Thus, in the present case, if it is found that the fence which had been put up by the complainant on his own land, had been cut by the accused persons who had no right to the same, and they further dug a ditch on the land of the complainant without any justifiable cause, the intention to cause wrongful loss or damage can be inferred from commission of those acts themselves, no independent proof of intention is necessary. Accordingly, if the evidence with regard to the cutting of fence and the digging of ditch is accepted, it would prove the existence of requisite intention as contemplated u/s 425, Indian Penal Code. 9. Similarly, from the very commission of those acts, damage may be presumed to have been caused though the quantum of damage is a matter in respect of which independent proof is necessary. In the present case, since the conviction is u/s 426, the law does not require a finding as to the quantum of damage. 10. It is next argued that where there is variation between the prosecution story as told in the petition of complainant and as unfolded in the Court, the prosecution case must be discarded. In the present case, since the conviction is u/s 426, the law does not require a finding as to the quantum of damage. 10. It is next argued that where there is variation between the prosecution story as told in the petition of complainant and as unfolded in the Court, the prosecution case must be discarded. In the present case, while the complaint petition recites that on the date of occurrence the accused persons after cutting the existing fence, put up a new one, encroaching upon a portion of the land of the complainant, the complainant at the trial alters that story to one of bare cutting which means that encroachment by means of erecting a new fence did not take place on the date of occurrence and this is amply corroborated by other prosecution witnesses. The other variation is stated to be that while one Sunakar Jena was named as an accused in the complaint petition, he is not proved to have participated in any criminal act at the evidence stage as a result of which he was discharged by the Magistrate. The discharge of Sunakar Jena for want of sufficient evidence cannot be said to be such a variation as to shake the foundation of the prosecution case, but the other fact, viz., encroachment by putting up a new fence is a material fact in the prosecution case. With regard to this fact, the version given in the complaint petition and as told in the Court differs completely. In the last line of para 4 of his judgment, the learned Magistrate says: It is also disclosed by the complainant, during cross-examination after charge, that after filing of this complaint, they also put up a fence one cubit away, from the ridge of the ditch. In the light of this finding, the case of the complainant as stated in the complaint petition must be held to be false in material particulars. The prosecution case that a new fence was put up on the date of occurrence, has not been supported by the other prosecution witnesses. In the light of this finding, the case of the complainant as stated in the complaint petition must be held to be false in material particulars. The prosecution case that a new fence was put up on the date of occurrence, has not been supported by the other prosecution witnesses. Therefore even though it is found that there is variation of the case as disclosed in the complaint petition and as depicted in the Court, it cannot automatically lead to the dismissal of the prosecution case, unless other materials are forthcoming for discarding the evidence of other prosecution witnesses who have not corroborated the false part of the complainant's case. Therefore, on this ground, it is not possible to throw out the prosecution code. As a corollary to this principle, it is argued that as a major part of the prosecution case is false, the entire case must go. But it appears from the evidence that the complainant alone is a party to this embellishment of the story of occurrence, presumably to add gravity to his case. So, even accepting the contention that the prosecution story in the complaint petition has been coloured, yet that alone cannot be the basis for an acquittal when the other prosecution witnesses do not support this false part of the case. 11. It has been argued, on the basis of three decisions of this Court, reported in Madanlal Agarwalla v. State 25 C.L.T. 107, Madhusudan Ray v. State 25 C.L.T. 139, and Kashinath Patro v. State 21 C.L.T. 23, that where there is variation between the complaint case and the case as unfolded at the evidence stage, the accused must be acquitted. Those decisions, however, do not lay down this principle as a mathematical formula. The decision in Madanlal Agarwalla v. State 25 C.L.T. 107, lays down that in case of such variation, the evidence in the case should be carefully scrutinised, as such evidence differing from the first information report ought not to be generally accepted. Relying on Kashinath Patro v. State 21 C.L.T. 23, it was held in the case reported in Madhusudan Ray v. State 25 C.L.T. 139, that if the first information version and the case put forward before the Court do not tally, it would be extremely hazardous for the Court to conjecture as to how the fight must have taken place. Relying on Kashinath Patro v. State 21 C.L.T. 23, it was held in the case reported in Madhusudan Ray v. State 25 C.L.T. 139, that if the first information version and the case put forward before the Court do not tally, it would be extremely hazardous for the Court to conjecture as to how the fight must have taken place. It was also further held therein that; the rejection of evidence of witnesses in material particulars makes the evidence of witnesses unreliable with regard to other points also, and it is not safe to rely on the evidence of such witnesses. All these rules are rules of prudence which make the duty of the Court onerous. In such cases, the duty of the Court is to sift the evidence very carefully so as to separate the grain from the chaff. If there is any unimpeachable circumstance or any proved fact of undoubted veracity in the case, the same may be used as a touch-stone to test the truth of one version or the other and it is that version which gains corroboration from the unimpeachable circumstance or proved fact which may be accepted and to that extent the prosecution story can be believed while rejecting the other part. Rut where two stands of varying texture have been so unextricably woven into the rope of prosecution story, that it is impossible to untwine them, the whole case has to be scrapped. But in the present case the evidence of p.ws. 2, 3 and 4 is consistent with one another as well as with the version of the complainant in Court and in such circumstances the fact that the story put in the complaint petition which has been glossed in part or is false in part, should not affect the ultimate finding of the trial Court, arrived at on a careful scrutiny and analysis of the evidence on record. The position may be different if all the prosecution witnesses are shown to be inimically disposed towards the accused persons; but where some of them are, while others are independent whose evidence give credence to those witnesses who are shown to have enmity with the accused persons, the position remains unaffected. In the present case, as it has not been shown that an the prosecution witnesses, namely, p.ws. In the present case, as it has not been shown that an the prosecution witnesses, namely, p.ws. 2, 3 and 4 were inimically disposed towards the accused persons, it cannot be paid that the trial Court has gone wrong in relying on their evidence. 12. Had the matter rested here alone, I should have no difficulty in upholding the order of conviction and sentence. In para 3 of his judgment the Magistrate says: The northern fence of the aforesaid plot (3390) of the complainant, is the southern boundary of the land of the accused so purchased and will measure about 40 cubits. and in para 5 he finds: "The Lands of the parties have not been measured." There is no proof, far less any finding, as to who originally put up that fence. Undisputedly that was the only fence existing between the two contiguous plots, one belonging to the complainant and the other belonging to Suba Bewa which was purchased by the accused persons. In the absence of any proof or finding that the fence was erected by the complainant or his predecessors in-interest, and that it stood on his plot, the conviction of the Petitioners for cutting that fence will be difficult to uphold and maintain. For the self-same reason, it cannot be said that the prosecution has proved beyond all reasonable doubts, that the digging of the ditch, even if true, was upon the plot of the complainant. While discussing the defence evidence the Magistrate expressed the opinion that Suba the vendor of the accused-Petitioners, was the proper person to speak to whether there was an existing fence and if there was any boundary dispute between her and the complainant. If she was the material witnesses to clinch the issue as to the existence and ownership of the fence, her non-examination is Equally a lacuna in the prosecution case. It has not been proved beyond doubt that the new fence put up by the accused persons was on the complainant's land and thereby the former had made any encroachment. If she was the material witnesses to clinch the issue as to the existence and ownership of the fence, her non-examination is Equally a lacuna in the prosecution case. It has not been proved beyond doubt that the new fence put up by the accused persons was on the complainant's land and thereby the former had made any encroachment. If all the acts of cutting the fence and digging the ditch ascribed to the accused persons, can be held to have been done over the land purchased from Suba, such acts can be said to have been lawfully exercised by the accused-Petitioners in exercise of their right of ownership of Suba's land purchased by them and no intention to cause wrongful loss or damage to the complainant by causing destruction of the property or in changing the property or in the situation thereof, so as to destroy or diminish its value or utility can be held to have been entertained by the Petitioners. Thus, in the absence of any conclusive proof as to the ownership of the fence and as to whether the ditch was dug on plot No. 3390, the prosecution cannot be said to have brought home the charge against the accused-Petitioners beyond all reasonable doubt. In the result, therefore, the order of conviction and sentence passed on the Petitioners, must be set aside, the Petitioners acquitted, and the fines, if paid, shall be refunded. The Revision allowed. Final Result : Allowed