Ramakichena Iyer vs Union Territory of Pondicherry and Another

Ramakrishnan, J.—The Court of first instance at Pondicherry acquitted the Appellant herein of the offence of theft under the French Penal Code, but convicted him under Articles 456, 445 and 455 of the Code Penal and sentenced him to pay a fine of 100 francs with suspended execution and also to pay damages in a sum of five hundred rupees to the party civil, besides costs. These Articles are translated as under:

Article 456 : Any person who, totally, or partially, fills any ditch, destroys any fence, of whatever material, cuts down or uproots any live or dead hedge, or displaces or removes any boundary mark or post or tree planted or utilized as boundary mark between different estates, shall be punished by imprisonment for not less than one month, and not more than one year and by fine of not less than 50 francs and not more than one-fourth of the adjudicated damage.

Article 445 : Any person who cuts down one or several trees which he knows to belong to another, shall be punished by imprisonment for not less than 6 days and not more than 6 months for each tree, but the totality could not exceed five years.

Article 455 : In the cases provided by Articles following Articles 444 to 454 inclusive, the offender shall be subject to a fine of not less than 16 francs and not more than one-fourth of the adjudicated damages.

The Appellant appealed to the appellate Court at Pondicherry, which confirmed the convictions for the offences above mentioned, confirmed the fine but reduced the amount of damages to the civil party to Rs. 300. The Appellant has now filed this appeal by way of pourvoi en cassation to this Court.

I heard the learned Counsel appearing for the Appellant, the learned Counsel appearing for the party civil, as well as the learned Public Prosecutor.

The facts as found by the Tribunals at Pondicherry are the following. The land bearing Section No. 53 belongs to the complainant one Nadarajagramany and the adjacent plot bearing Section No. 54 belongs to Ramakichena Ayar, the Appellant (accused). The Appellant began to build a construction in his land for housing weaving looms. He also found it necessary to convert the fence between the two lands made up of live hedges into a masonry partition wall. In the process of raising this partition wall, some trees, which occupied the hedge portion, made up of odeeyan and portia trees were cut. After local inspection, the Court of first instance has left a record that the masonry wall put up, occupied the same place where the live hedge had formerly existed, and that this fact was conceded before the inspecting officer by both the parties. The officer who made the local inspection also noticed at a distance of one meter from the wall, some stumps of felled trees and some trunks of the felled trees which were not completely detached from their stumps. The proprietor of the coconut tope declared to the inspecting officer that the hedge was destroyed during his absence, and that the timber obtained from this cutting was stolen by the culprit.

Acting on the result of the inspection and also on the evidence, the Court of first instance found that the Appellant had in effect admitted having cut down the trees forming the hedge, which divided his land and the civil party''s land, without the permission of the civil party and that whereas the civil party denied the cutting with his permission and whereas from the documents it appeared that such permission was not granted, these facts established the offence provided for and made punishable under Articles 456, 445 and 455 of the French Penal Code.

Sri Arunachalam, learned Counsel appearing for the Appellant herein, argued that what has been found by the Courts at Pondicherry was only the fact of cutting down of the trees forming the hedge and constructing a masonry wall at the place where the hedge stood. The offence of theft having been found against, it would appear that an essential ingredient for constituting the offences for which the Appellant has been convicted is lacking, namely, the intention to cause loss or detriment or as the jurisprudence (decided cases under the appropriate sections) describes it, prejudice. Reference was made in this connection to two paragraphs found in Dalloz Repertoire Presque, fourth volume, 1912 edition, paragraph 102 under the heading Comblement de fosses et destruction de cloture�s on de haies (Filling up of ditches, and destruction of boundaries or fences) states that the elements which constitute the crimes mentioned under this heading are the existence of the fact of destruction and the intention to cause injury (nuire) to another. Again paragraph 117 of the same book states that it is not necessary to establish that the author of the destruction of the boundary stones should know that the trees or the stones which he destroyed or displaced served to limit the boundaries between two immovable properties; it will suffice if he had intended in some manner to cause prejudice to others. The same paragraph also refers to a criticism of this latter view, on the ground that it implies that a crime can be committed only if there is a combination of a physical action with the mental element of intention. But the better view seems to be what has been stated in paragraph 102 of Dalloz, quoted above, namely, that for the offences under consideration, it is necessary not merely to establish that there was a removal or destruction of the boundaries or fences, but also an intention to cause injury to the opposite party. In the present case, the Courts at Pondicherry have found that the Appellant cut down the existing live hedges and the trees. There is no finding that he committed the theft of the cut-trees. He had erected a masonry wall. There is no finding that by the erection of this masonry wall any prejudice or injury had been caused to the neighbour. One possible view is that a masonry wall will better protect the interests of the two neighbours than the former live hedge. But it is necessary for the Court dealing with the case for the purpose of treating it as a criminal offence punishable under the aforesaid provisions of the Penal Code to arrive at a finding that the act of the accused was done with the intention to cause some injury to the opposite party. The Courts at Pondicherry had proceeded on the basis that the act of the Appellant Amounted to a criminal offence solely because the permission of the complainant, which he pleaded was not proved to have been obtained. But they have not considered the question whether this finding is sufficient to lead to the finding about another essential ingredient for the crime in this case, namely, intention to cause injury to the opposite party. In the absence of a finding on this necessary ingredient for the offences for which the Appellant has been convicted, I allow the appeal and set aside the conviction of the Appellant and also the fine levied on him as well as the damages which he had been ordered to pay to the civil party. The amount of fine and damages if paid will be refunded to the Appellant.