JUDGMENT : S. Acharya, J. - This revision is directed against the appellate judgment of Shri L. Panda, Sessions Judge, Cuttack-Dhenkanal, Cuttack, dated 29 6-1966, in Criminal Appeal No. 194C of 1965, upholding the conviction and sentences of the Petitioners u/s 427 Indian Penal Code, while setting aside their convictions and sentences u/s 24 of the Cattle Trespass Act, passed by Shri J.M. Mohapatra, Judicial Magistrate 1st Class, Cuttack in Case No. 549C-I of 1964. 2. The prosecution casein short is that due to previous ill-feeling of the Petitioners against the complainant, P.w. 1 the Petitioners had threatened to assault the complainant on the day previous to the date of occurrence, and had then given out that they would see that the complainant's paddy crops were somehow damaged. On the next day i.e., on 17-7-1904 (the date of occurrence) the Petitioners allowed their five heads of cattle to graze the paddy crops standing the complainant's land (plot No. 193) in village Mangarajpur, and thus caused a loss of Rs. 60/- to the complainant. 3. The prosecution case alleging an offence u/s 24 of the Cattle Trespass Act against the Petitioners was disbelieved by the Sessions Judge. 4. The Petitioners have completely denied the occurrence stating that this false case has been foisted against them due to previous enmity. 5. The main contentions raised by Mr. Dhal, learned Counsel for the Petitioners are as follows: (1) That in order to bring an act within the definition of Mischief, it must be proved that the accused had directly caused the damage or caused the damage through others; and there being no evidence to that effect the Petitioners are not liable for the offence; and (2) that when damage had already been caused without the knowledge of the accused, mere inaction of the accused thereafter to restrain the cattle from committing further damage would not bring the accused within the ambit of the offence. 6. The Sessions Judge after a full discussion of the prosecution evidence, and placing reliance on the evidence of the complainant (P.w. 1), and finding that there is no reason to disbelieve the eye witnesses (P.ws. 2 and 3) held that the four Petitioners had intentionally can Red damage to the crops of the complainant by allowing their cattle to graze on them. 2 and 3) held that the four Petitioners had intentionally can Red damage to the crops of the complainant by allowing their cattle to graze on them. I have also examined the prosecution evidence in the broadest interest of justice, and for the purpose of examining the correctness of the first contention raised by Mr. Dhal, the learned Counsel for the Petitioners. I find from the evidence of p.w. 1 that on the day of occurrence he found five heads of cattle of the accused persons damaging the paddy crops standing on plot No. 193 belonging to the complainant, and the Petitioners were sitting only at a distance of 50 cubits from-that place. p.w. 2 states that "Accused Brundaban allowed his cattle to damage the paddy crops of the complainant". All the accused were under a tamarind tree close to my house and the land. p.w. 3 like wise says that he saw five heads of cattle belonging to Chandra (Petitioner No. 2). son of Brundaban damaging the paddy crops on the field of the complainant. The other accused persons were then sitting near the tamarind tree. From the deposition of P.w. 2 as quoted above, it is evident that he definitely attributes direct overt act to Brundaban, the Petitioner No. 1, the father of Petitioner, Nos. 2 and 3 of having intentionally allowed his five heads of cattle inside the complainant's land causing wrongful loss to the complainant by damaging his paddy crops. Thus Brundaban's liability for the offence is well established. 7. As regards the other three Petitioners-they were, as stated by the eye witnesses, present very near to the complainant's land where their cattle were allowed to graze. Out of these three, two of them i.e., Chandra Mohan, (Petitioner No. 2) and Krushna (Petitioner No. 3) are the sons of Petitioner No. 1. From the evidence of discussed above these two Petitioners along with Baban Behera, Petitioner No. 4, who is said to be the God relation of the other three Petitioners, where sitting close to the complainant's land, when Petitioner No. 1 allowed their cattle to graze the paddy crops standing on the complainant's land, and they did not do anything to restrain the animals from causing the damage. This fact considered along with the time of occurrence, (at about 8 P.M. according to p.ws. This fact considered along with the time of occurrence, (at about 8 P.M. according to p.ws. 1 and 3, and "after nightfall" according to p.w. 2), and the threat given out by these Petitioners on the day previous to the occurrence to damage complainants crops, as borne out by the evidence of p.ws. 1 and 2. would signify that these Petitioners or atleast the two sons, i,e., Petitioner Nos. 2 and 3, were present at the place at that unusual hours to give their tacit support to their father's illegal act of causing damage to complainant's crops. From the facts and circumstances discussed above it can very will be inferred with reasonable certainty that these Petitioners had the requisite intention to cause, or the knowledge likely to cause wrongful loss or damage to the complainant by causing destruction of his paddy crops. That being 80, and the damage caused to the complainant by such grazing of cattle belonging to the Petitioner Nos. 1, 2 and 3 being an undisputed fact, and also concluded by the concurrent finding of fact, I am in agreement with the conclusion of the Sessions Judge in this respect and would therefore hold that the first contention of the learned Counsel for the Petitioners is untenable. 8. I am also not in agreement with the second proposition, mentioned above, raised by Mr. Dhal, the learned Counsel for the Petitioners. In elucidating this proposition Mr. Dhal contended that there is nothing in evidence to show at what point of time all the Petitioners or at least Nos. 2, 3 and 4 came to the place of occurrence, and it is just possible that they came after sometime when the cattle had already trespassed in the complainants land, and had started causing the damage. It is contended by him that as these Petitioners did not allow the cattle inside the complainant's land, and there being no evidence to the effect that they were actually present when the cattle entered into the said land, they cannot be held liable for the offence merely because of their inaction to; restrain the cattle from committing further damage to the paddy crops. This proposition has to be examined in the light of the prosecution evidence that on the previous day these Petitioners had given a threat to the complainant that they would damage his paddy crops. This proposition has to be examined in the light of the prosecution evidence that on the previous day these Petitioners had given a threat to the complainant that they would damage his paddy crops. On the day following, i.e., on the date of occurrence, they were found at a place and time where actually the cattle belonging to Petitioner Nos. 1, 2 and 3 were causing damage to the complainant's standing crops on his field. From this the natural conclusion would be that Petitioner Nos. 2 and 3 along with Petitioner No. 1 had the intention of enduring and or continuing the crime by consciously allowing their cattle to continue causing further damage to the complainant. The inaction of these Petitioners to restrain their cattle from committing further damage, under the above circumstances, is only suggestive of the criminal intent of these Petitioners to cause damage to the complainant, and as damage in fact was caused in their presence, they can be safely held liable for the offence. From such inaction, in the context of the prosecution case, knowledge of causing wrongful loss or damage to the complainant can also be attributed to these Petitioners. I, therefore, find that the second contention raised by the learned Counsel for the Petitioners, as stated above, is also not acceptable. 9. However the fourth Petitioner, Baban Behera @ Baban Chandra Behera, the son of Kumar Behera, is not related to the other three Petitioners, and no particular overt act at the time of the occurrence is ascribed to him, excepting that he was present at the time and place with the other Petitioners. As none of the cattle belong to him, and the prosecution has not been able to show how and when he came to the place of occurrence, and in what particular manner be acted in concert with the other three Petitioners it would be difficult to attribute to this Petitioner either the requisite intention or knowledge of causing wrongful loss or damage to the complainant. It is just possible that he chanced to be there without in any way associating himself with all that was going on at the place of occurrence. 10. I would, therefore, give Baban Chandra Behera (Petitioner No. 4) the benefit of doubt, and set aside the conviction and sentence passed against him. It is just possible that he chanced to be there without in any way associating himself with all that was going on at the place of occurrence. 10. I would, therefore, give Baban Chandra Behera (Petitioner No. 4) the benefit of doubt, and set aside the conviction and sentence passed against him. The conviction and sentence passed against the other three Petitioners namely, Burunda alias Brundaban Bej, Chandramani Bej and Krishna alias Krushna Chandra Bej are hereby maintained. The revision is accordingly dismissed with respect to Petitioner Nos. 1, 2 and 3, and allowed with respect to Petitioner No. 4, Baban alias Baban Charan Behera and the fine, if paid by him, be refunded to him forthwith. Final Result : Allowed