JUDGMENT : J.K. Mohanty, J. - This is an appeal by the State against the order of the Sub-Divisional Magistrate, Sambalpur acquitting the two Respondents of a charge u/s 430, Indian Penal Code. 2. Prosecution case in brief is as follows: In mouza Gambharikata there is a tank called Debaki Bandh situated in plot No. 2335 with plot No. 588 as embankment belonging to the Government. It is alleged that on 25-10-1972 both the Respondents cut the northern ridge of the tank and dug a nullah to their field and drained out the water. The villagers filed a petition (Ext. 1) before the Tahasildar on 26-10-1972 which was sent to the Revenue Inspector (P.W. 8) for enquiry and report. P.W. 8 submitted two reports dated 27-10-1972 and 28-10-1972 in a piece of paper marked Ext. 2. The Tahasildar sent the petition (Ext. 1) and the report (Ext. G) along with a forwarding letter dated 14-11-1972 to the police for necessary action. The Officer-in-charge of the police station registered a case and after completion of investigation, submitted charge-sheet against the accused, Respondents for having committed an offence u/s 430, Indian Penal Code. 3. The learned Magistrate framed the following charge against the accused-Respondents. That you on or about the 25th day of October, 1972 at day time at Gambharikata committed mischief by forcibly cutting the ridge of Kata adjoining plot Nos. 588 & 2335 belonging to the Government which act caused a diminution of the supply of water for agricultural purposes and thereby committed an offence punishable u/s 430, Indian Penal Code and within my cognizance. The plea of the accused persons is that they usually take water from the tank and they have not caused any damage to the lands of any of the P.Ws. 4. To prove the case, prosecution has examined eight witnesses and the defence has examined one witness. P.Ws. 1 to 7 are cultivators of the village. P.W. 8 is the R.I., who, at the instance of the Tahasildar, enquired into the matter and submitted his report, Ext. 2. Several documents were also proved on behalf of both the sides. The learned Magistrate after considering the evidence by his judgment dated 23-12-1975 acquitted the accused-Respondents as the prosecution has failed to substantiate the charge against the Respondents. Hence the appeal by the State. 5. 2. Several documents were also proved on behalf of both the sides. The learned Magistrate after considering the evidence by his judgment dated 23-12-1975 acquitted the accused-Respondents as the prosecution has failed to substantiate the charge against the Respondents. Hence the appeal by the State. 5. Offence u/s 430, Indian Penal Code is particularly a grave form of offence of committing mischief as is defined in Section 425, Indian Penal Code. It is necessary, first of all, to prove the elements that constitute "mischief" u/s 425, Indian Penal Code. It would be seen as to whether it has been established that the accused-Respondents have committed mischief by doing any act which caused, or which they knew to be likely to cause, diminution of supply of water for agricultural purposes. P.Ws. 1 to 7 are the cultivators of the village who have stated that the two accused-Respondents cut the ridge of the tank Debaki Bandh and drained out the water to their field. P.W. 1 has stated that the accused persons along with some others were cutting the ridge of Debaki-Bandh which belongs to Tablie Grama Panchayat. They protested against the illegal action of the accused persons, but they did not pay any heed to their protest. So they filed a petition before the Tahasildar which is marked Ext. 1. In cross-examination, he has stated that he has three plots which were irrigated by the said Kata. He admitted that the right of irrigation is generally noted in the parcha, but he had no paper to show that he had right of irrigation from the said Kata. He aim admits that the accused persons have filed a complaint case against him and others as they prevented them from taking water. P.W. 2 has stated that the accused petitions and their servants cut the ridge of Debaki Bandh and the water overflowed their field the stream nearby. They could not take water to their field in that year. In cross-examination, he has admitted that he has no document to show about his right to take water from the tank. P.W. 3 also stated that the accused persons took away water and they could not get any where as a result of which their plants suffered. He also did not file any document to show that he had a right to irrigate hi& lands from the said tank. P.W. 3 also stated that the accused persons took away water and they could not get any where as a result of which their plants suffered. He also did not file any document to show that he had a right to irrigate hi& lands from the said tank. P.W. 4 also stated that the accused persons cut the ridge of the tank Debaki Bandh and took the water to their field. He stated that they dissuaded the accused persons from taking water, but the accused persons did not pay any heed. In cross-examination be admitted that he was one of the accused in a complaint case filed by the Respondents for obstructing the water from Debaki Bandh. He further admitted that he had no papers to show that they have irrigation right from the said tank. P.Ws. 5, 6 and 7 also deposed in the same manner in their examination-in-chief as P.Ws. 1 to 4. In cross-examination P.W. 5 has admitted that he obstructed the accused persons from taking water. So they have filed a case against him. He also could not produce any paper that he has a right to irrigate his lands from the said tank. P.W. 6 also stated in cross-examination that he has no document to show that he has a right to use the water of the said tank. P.W. 7 in cross-examination stated that he has no land near the said tank. P.W. 8 is the R.I., who enquired into the allegations made by the villagers as per Ext. 1 and submitted report (Ext. 2) dated 27-10-1972 and 28-10-1972 in one sheet of paper. In cross-examination he has stated that he was in charge of the Record-of-Right Register. The rights of the persons are mentioned in the remarks column of that Register. He could not say as to who had right over the said Kata (tank). He further stated that according to the Hamid Settlement Map, there is one outlet on the northern side of the Kata. This is also existing now. At that time accused persons were taking water. Aposi right for taking water was mentioned in the Patta (Parch a) at that time. He further stated that in the disputed year none was permitted to take water from the Kata and none of the villagers also applied to take water from the Kata. This is also existing now. At that time accused persons were taking water. Aposi right for taking water was mentioned in the Patta (Parch a) at that time. He further stated that in the disputed year none was permitted to take water from the Kata and none of the villagers also applied to take water from the Kata. On behalf of the accused persons, the map of the Hamid Settlement (Ext. C) and the Settlement Parch as were filed which go to show that the accused persons had right to get water from the said Kata. In the map of Hamid Settlement it is shown that there is an outlet from the tank and there is a channel through which the water would flow from the Kata to the lands of the accused persons. So from the documentary evidence, the accused persons have established their right of taking water to irrigate their lands through the channel from the tank. On the other hand, P.W. 1 to 7 admitted that they have no papers to show that they have right to take water from the tank in question. P.W. 8 has also categorically stated that in the disputed year none was permitted to take water from the Kata and none of the villagers also applied to take water from the Kata. From the above evidence of P.W. 8 it is cleat that if the villagers want to take water from the Kata, they will have to apply for permission to the authorities as the tank belongs to Government. Admittedly P.Ws. 1 to 7 had not applied for permission to take water from the tank in the disputed year. On the other hand, the accused persons have established by documentary evidence that they have right to take water from the tank, and they were taking water for irrigating their own lands. No doubt, when the accused persons took water to their lands, there will be diminution of water from the tank, but it cannot be said that their intention was to cause wrongful loss or damage to public or to any person. So on the facts and circumstances of the case, it cannot be said that their act constituted 'mischief' as defined in Section 425, Indian Penal Code. As P.Ws. So on the facts and circumstances of the case, it cannot be said that their act constituted 'mischief' as defined in Section 425, Indian Penal Code. As P.Ws. 1 to 7 had no right to take water from the tank and they have also not applied for permission to take water in the disputed year, in the above premises, they cannot complain that there was diminution of supply of water for agricultural purpose as mentioned in the charge. 6. Considering the entire evidence on record and the facts and circumstances of the case, I hold that the prosecution has failed to prove the case against the accused-Respondents beyond reasonable doubt and I see no reason to differ from the findings of the learned trial Court. Hence the appeal fails and is dismissed. Final Result : Dismissed