C.A. Rahim, J.-
This revision has been directed against the judgment and order passed by the learned Sessions Judge, Fatehpur, dated 24-3-1984 in Criminal Appeal No. 25 of 1984. By that judgment he dismissed the appeal preferred by the revisionists, affirmed the conviction under Section 70 of the Canal and Drainage Act and imposed a fine of Rs. 15/- each in default to undergo simple imprisonment of one week.
2. The prosecution case is that chak No. 721 belonging to the complainant-No. 1 used to be irrigated through distribution channel No. 27 passing through plot Nos. 731/766 etc. which the revisionists and others demolished on 30-11-1980 at about 12 noon. They also included the land underneath the channel with their fields. Due to demolition of the channel the complainant-respondent No. 1 suffered personal loss. There was also loss to the government property. Besides four witnesses who were examined to prove the demolition of the channel the prosecution also examined P. W. 4 and P. W. 5 who were Sinchpals of the area. The revenue record showing irrigation of plot No. 723 of the complainant was proved. Copy of the letter of the Assistant Revenue Officer showing that channel in question has been in existence and was demolished subsequently has also been proved. Beside the trial Court made spot inspection of the plots of the occurrence found signs of water channel present on the spot.
3. Against the said evidence on behalf of the revisionists two D. Ws. were examined where D.W. 1 was admitted to be the real brother Mahabir, revisionist No. 5 and D.W. 2 admitted that he had come to give evidence at the instance of the accused- revisionist No. 2 Arjun.
4. The trial Court as well as the appellate Court disbelieved the D. Ws. as partisan witnesses, relied on the oral and documentary evidence of the prosecution, convicted and sentenced the revisionists in the aforesaid manner.
5. Sri R. B. Sahai, appearing for the revisionist has submitted that irrigation map of the area, since not proved on behalf of the prosecution, best possible evidence having been withdrawn, the prosecution could not prove that there was channel for irrigating lands of the complainant. It has also been submitted that accused Arjun was examined by the Court as witness without any application as required under Section 315 of the Criminal Procedure Code.
6. Learned lower appellate Court has considered both the points. As against the irrigation map he has relied on the documentary as well as oral evidences produced on behalf of the prosecution showing the existence of the distribution channel and its demolition. With regard to the other points the learned Judge held that since the trial Court did not consider the evidence of accused Arjun examined as D.W. no prejudice was caused.
7. Sri N. L. Agarwal appearing for the opposite party No. 1 complainant, has submitted that the appeal preferred before the District Judge was not maintainable since no appeal lies against the sentence of fine to the extent of Rs. 15/-. He has submitted that when the Magistrate went to the spot for inspection and prepared the memorandum no objection was raised by the accused-revisionists. He has given stress on the examination of the two Sinchpals and of the report of the Assistant Revenue Officer alongwith local inspection of the trial Magistrate.
8. It appears that both the Courts below have relied on the oral and documentary evidences produced with regard to the existence of the distribution channel as well as its demolition and no other view can be taken in revision after reassessing the evidence, with regard to the examination of Arjun as D.W. without any application as provided under Section 315, Cr. P.C., the learned Judge has rightly observed that since the leanred trial Magistrate did not consider the said deposition there was no question of accused-revisionists being prejudiced. Moreover, I accept the plea of the learned Counsel for the opposite party No. 1 that no appeal lies against the judgment and order in which sentence of fine is imposed to the extent of Rs. 15/-. Though the finding of the learned Judge suffers from no infirmity but since the appeal before him is not maintainable under Section 376, Cr. P.C., the judgment and order of the lower appellate Court are liable to be set aside. When the said judgment and order become non-est this revision also cannot survive. Accordingly, the revision is dismissed. The judgment and order of the leanred lower appellate Court are also set aside. The conviction and sentence imposed by the leanred Magistrate are hereby affirmed. The revisionists shall deposit the fine within 15 days from this date otherwise process will be issued by the Thai Court for committing them to custody to suffer S.I. for seven days as per order of the learned Magistrate. This relates to Case No. 25 of 1980 Birbal v. Ram Koran and 7 other under Section 70 (4) of Canal and Drainage Act (Act No. 8 of 1973).
9. With the above observation the revision is disposed of.
Revision disposed of.
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