JUDGMENT : J. Das, J. - This criminal revision arises out of the judgment dated 27th July, 1985 passed by Sri D.M. Patnaik, Sessions judge, Mayurbhanj, Baripada in Criminal Appeal No. 63 of 1982 upholding the conviction of the Petitioner u/s 427, I.P.C. and sentencing him to pay a fine of Rs. 100/- and in default to undergo S.I. for fifteen days instead of the sentence of S.I. for three months awarded by the trial Court. 2. The relevant facts are that on 4-5-1981 in the morning hours the complainant carried on the work of plastering of gaps in between the edge of his tin roof of the tin-shed and the eastern wall side of the Petitioner with a view to prevent rain water entering into the tin-shed through the gap. At about 4.30 p. m. the Petitioner went over the roof and removed the plastering with the help of a crowbar. The complainant reported the matter at the P.S. on 5-5-1981 and on the basis of the report a station diary entry No. 438 dated 5-5-1981 was made. As the case was non-cognizable, the police advised the complainant to file a complaint petition and hence the complainant filed a complaint petition on 5-5-1981. In these circumstances, the Petitioner stood his trial. The trial Court convicted the Petitioner under Sections 427 and 504, I.P.C. The appellate Court acquitted the Appellant of the offence u/s 504, I.P.C. and convicted the Petitioner u/s 427, I.P.C. and modified the sentence and awarded the sentence to pay a fine of Rs. 100/- only. 3. The defence plea is one of denial. 4. The finding of the appellate Court is that the Petitioner removed the cement plastering in question and thereby caused wrongful loss to the complainant to the extent of Rs. 80/-. 5. The learned advocate for the Petitioner argued that the finding of the appellate Court is not legal as it is based upon the local inspection made by the learned Sessions Judge, who disposed of the appeal and the assessment of damage is also based upon conjecture and there is no basis for the same. 6. On 1-6-1985 the learned Sessions Judge passed an order that he would take up an inspection at the spot. The local inspection was done at 5 p. m. on 23-6-1985 and a memorandum of inspection was also prepared. 6. On 1-6-1985 the learned Sessions Judge passed an order that he would take up an inspection at the spot. The local inspection was done at 5 p. m. on 23-6-1985 and a memorandum of inspection was also prepared. In his order dated 1-6-1985 the learned Sessions Judge has recorded: The complainant has stated in his evidence that the wall of his tin-shed adjoins the Eastern wall of the house of the accused-Appellant and that the gap in between the two constructions is only 1" to 2" vide examination - in - chief. The P.Ws. examined do not give the correct position of the respective walls and thus, the evidence adduced from both sides also do not clarify the position. For the reasons recorded above, the learned Sessions Judge thought it fit to have a local inspection. I find that the above reason is not at all adequate for a local inspection, as the complainant himself has stated that the gap between the two constructions is only 1" to 2" and this is not challenged. On taking the evidence of the case as a whole into consideration, I also find that in order to determine the criminal liability it is not very much necessary to know the exact gap between the two constructions. Hence, I feel the appellate Court has not exercised the discretion properly in making the local inspection. 7. A local inspection u/s 310, Code of Criminal Procedure is held only for the purpose of properly appreciating the evidence given in the trial. It is the established principles of law that a Judge or Magistrate is not entitled to allow his view or observation to take the place of evidence, because such view or observation cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. This view has also been taken by the decisions reported in Pritam Singh and Another Vs. The State of Punjab, and Keisam Kumar Singh and Another Vs. State of Manipur, . In any case, the information obtained in local inspection cannot be a substitute for evidence and such information cannot be made the basis for decision of a case. 8. In this case the incident took place on 4-5-1981 and the appellate Court made the local inspection on 23-6-1985 i.e. more than four years after the incident. State of Manipur, . In any case, the information obtained in local inspection cannot be a substitute for evidence and such information cannot be made the basis for decision of a case. 8. In this case the incident took place on 4-5-1981 and the appellate Court made the local inspection on 23-6-1985 i.e. more than four years after the incident. A local inspection made after such a long time is of no use at all and in this view of the matter also the discretion of the appellate Court has not been exercised properly. 9. On perusal of the judgment, I find that the appellate Court has placed reliance on its observation made at the time of the local inspection to great extent and the observation has been used in a manner, as if it is a substitute for the evidence. In these circumstances, the judgment of the appellate Court is vitiated. 10. P.Ws. 1 and 2 are labourers. P.W. 1 has stated that they closed the leakage on tin roof of the complainant by cement. P.W. 2 has stated that there was a shed of corrogated sheets of the complainant and as there was leakage he had repaired the joining portion of the tin sheet. P.W. 3 is the complainant. He has stated: I had a tin shed consisting three rooms adjoining the boundary wall of the accused and there was a gap of 1 to 2 inches. There was a wall on which the tins were resting before hand and in course of time a gap was created in between my wall and the tin. So took up the repairing work in order to avoid the leakage of water. P.W. 3 further states "my tin rests on my wall." Thus, in the light of the evidence of the complainant it is quite clear that the tin shed rests on the wall of the complainant and as in course of time there as a gap in between the wall of the complainant and the tin-shed, that gap has been patched up by cement. Hence, the complainant was repairing his own wall or in other words his own tin-shed and according to the complainant, his repairing work did not affect the wall of the accused at all. Hence, the complainant was repairing his own wall or in other words his own tin-shed and according to the complainant, his repairing work did not affect the wall of the accused at all. In such circumstances, it is not understandable as to why the accused should go to remove the plaster from the wall of the complainant without being least affected by that. Hence, the allegation does not appear to be probable and it does not appeal to commonsense also. In the nature of the evidence, there is absolutely no necessity to ascertain the exact gap between the wall of the complainant and the wall of the accused. Hence, it must be held that the learned Sessions Judge misdirected himself by measuring the gap between the construction of the accused and the construction of the complainant. If the repairing work was done on his own wall as stated by the complainant, there could not have been any possible objection on the part of the Petitioner and if the repairing was done in such a manner that the plastering covered a portion of the wall of the Petitioner, then suddenly he had a bona fide right to remove the plastering adjoining his wall. In these circumstances it must be held that the entire evidence in the case creates a doubtful situation. Hence, benefit of doubts must be given to the accused and hence, the accused is bound to be acquitted. Acts done or attempted to be done in bona fide assertion of a right however ill founded in law that right may be, cannot amount to the offence of mischief within Section 425. A claim of right need not be of an actual legal right but may only have the colour of a legal right. Where the complainant and the accused occupied adjoining houses, and there was undoubtedly a projection of plots and planks over the land of the accused from the complainant's portion, and there was no doubt that the projections were an invasion of the rights of the accused, and he tried to remove them and in doing so caused damage to the complainant's building, it was held that the accused must have acted bona fide in the exercise of what he considered to be his right and he was not guilty of any offence. (Ratanlal and Dhiraj Lals Commentry of Law of Crimes Vol. (Ratanlal and Dhiraj Lals Commentry of Law of Crimes Vol. II, 23rd Edition, Page 1661). It is seen from the above observations, that in such extreme cases also bona fide claim of right has been accepted. In this case there is no damage to the building of the complainant. The evidence as a whole is quite confusing and does not present a clear picture. In such circumstances the conviction is not at all justified. 11. The complainant (P.W. 3) has stated that he sustained a loss of Rs. 300/-. The complainant has not proved the basis for the alleged loss. The appellate Court made an assessment by various conjectures and held that the loss or damage comes to Rs. 80/-. There is also no basis for this. Hence, the actual loss has not been proved beyond all reasonable doubts. In any case, this is not material as the allegation of mischief is confusing and doubtful. 12. In the result, the Criminal Revision is allowed and the conviction and sentence passed against the Petitioner are set aside. Revision allowed. Final Result : Allowed