Amir Hassan and Others vs Emperor

Dhavle, J.—The four petitioners have been convicted of offences u/s 295 and 448, Penal Code and sentenced under the former section to four months'' rigorous imprisonment and under the latter to a fine, of Rs. 20 each. The first information in the case was lodged shortly after the occurrence-by Ruplal Shah, who has been referred to-below as the complainant. The northern part of Ruplal''s house was what he calls a deorhi, a small room, 5ft. 5 in. by 3ft. 8 in., which, had no wall on the north and was connected with the rest of the house by an opening in the southern wall. The main entrance to the house was on the east, towards a road, while the north faced a lane. In a niche in the eastern wall of the deorhi Buplal kept his deity known as the Naika Gossain.

Ruplal was constructing a wall to close up the northern end of the deorhi, when on the morning of 25th January last the petitioners came there with a large number of other men. The petitioner Usman asked Ruplal why he was closing the northern end, and Ruplal said that he had a right to do so. The petitioners said that there was a saint''s tomb in the room and that the Muhammadans were entitled to access to it. Ruplal denied this and said that he had his family deity in the deorhi. Upon this there was an altercation, and the petitioners Usman and Nairn caught hold of Ruplal, and on the orders of the petitioner Amir Hassan, the petitioner Zafir demolished the wall and took the pindi of the Naika Gossain from the niche and threw it into a drain running by the side of the lane. This prosecution story has been accepted by the lower Courts, rejecting the defence story that there was a saint''s tomb in the deorhi and that the Muhammadans of the place used to hold their Urs there every year.

The Sub-Inspector, who happened to be a Mahomedan officer and investigated the case at once, found no marks of a tomb in deorhi and was shown a small, partly wet lump of earth lying in the drain which Ruplal claimed as his Naika Gossain, a deity referred to, as the learned advocate who appears for the Grown has pointed out, at p. 62 of the Gazetteer of this district. In the niche in the eastern wall he found marks of vermilion, milk, and oil which supported Ruplal''s story of the worship of the deity and did not fit in with the defence story of a tomb, as a tomb ought to have a light on the north. Evidence was given by a local mukhtar, who was a Municipal Commissioner at one time, that when Ruplal''s father applied for permission to build a latrine near about this spot, he made an enquiry at the instance of the Municipal authorities and reported that permission should be refused because there was a tomb there.

As a matter of fact, the Municipality did some years afterwards give permission to Ruplal to build his latrine, after further inquiries; and the lower Courts have found that there could have been no tomb in the deorhi. Learned Counsel for the petitioners has contended that the conviction of the petitioners u/s 295 is unwarranted because the Section speaks of insulting the religion of any class of persons, while the charge as framed against the petitioners said that they had destroyed a pindi of Naika Gossain alias Babaji held sacred by Ruplal Shah and his family members with the intention and knowledge of thereby insulting the religion of Ruplal Shah and his family members.

If the learned Magistrate had Section 295 before him when he framed this charge, he must have been under the impression that Ruplal Shah and his family members constituted a class of persons within the meaning of Section 295. The learned Sessions Judge was inclined to take the same view, though he observed that

the deity was undoubtedly worshipped by the complainant and the members of his family, but it was also an object held in veneration by the entire Hindu community.

The learned Sessions Judge may have been right, but it does not appear that this latter was the case that the complainant set out to prove. On the contrary, he spoke'' in his examination in-chief of his religion being insulted. His mother carried it no further, and it is remarkable that none of the other prosecution witnesses, who are strangers to the family, spoke of their religious feelings being insulted. The Crown had not put in an appearance in this case in the beginning, but at my instance, the. learned advocate who appeared for the complainant communicated with the law officers of the Crown.

The learned advocate who] then appeared for the Crown was quite properly not prepared to maintain that Ruplal and his family formed a class of persons within the meaning of Section 295. But he argued ] that on the facts alleged against the accused 1 and found by the trial Court to have been proved, the case was well within Section 297, I.P.C., the relevant parts of which for present purposes are:

Whoever with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits trespass in any place of worship....

The trespass alleged against the petitioners formed the subject-matter of the charge u/s 448, and this charge also spoke of intent to "insult and annoy Ruplal and his family members by destroying the pindi of Naika Gossain and thus insulting their religion." The charge u/s 295-also, as I have already shown, spoke of "the intention and knowledge of...insulting the religion of Ruplal Shah and his family members." The learned advocate in this connexion referred to the provisions of Sections 236 and 237, Criminal P.C., which authorize the Court, where it is doubtful which of several offences has been committed, to frame charges in the alternative, and even in the absence of alternative charges, to convict the accused of the offence which he is shown to have committed, although he was not charged with it, provided that this offence was one for which he might have been charged u/s 236, that is to say, provided the single act or series of acts charged is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute.

It seems to me that in the circumstances of this case, the contention of the learned advocate for the Crown must be accepted and the petitioners dealt with for an offence, not u/s 295, but u/s 297, I.P.C., as all the ingredients of this latter offence were charged against them.

Mr. Jafar Imam has also contended that an offence u/s 297 has not been brought home to all the four petitioners, as it was the case of the prosecution that the petitioner Zafir alone demolished the wall as asked by the petitioner Amir Hassan and also took the pindi of the Naika Gossain from the niche and threw it into the drain. It is only if the throwing away of the pindi could have been shown to have been in furtherance of the common intention of all the petitioners that u/s 34, I.P.C., they could all have been held liable for that act.

But the lower Courts do not seem to have considered this aspect of the matter at all, to say nothing of the careless way in which the charges were framed. The circumstances do not very clearly point to a common intention of doing anything beyond stopping the erection of the wall by the complainant on the ground that there was a saint''s tomb in the deorhi; neither the findings of the lower Courts nor the evidence in the case points to an intention, shared by all the four petitioners, of insulting the religion of Ruplal. The learned advocate who appears for the Crown has drawn attention to the evidence of two prosecution witnesses, Chamari Shah and Sohrai Shah, that Zafir acted on Amir Hassan saying that the wall should be demolished and the pindi thrown away.

It is true that Ruplal does not attribute to Amir Hassan any direction or remark about the pindi, but this is not unintelligible in view of Ruplal''s excitement. The cross-examination of Chamari and Sohrai does not furnish any adequate reason for disbelieving the detail mentioned by them concerning Amir Hassan, and I take it that this evidence was not noticed in detail by the lower Courts, because they did not concern themselves with the individual acts of the several petitioners but wrongly proceeded on the implied assumption that if an offence u/s 295 was committed, it was committed by them all. The learned advocate for the drown has, however, not been able to establish any connexion of the petitioners Usman and Nairn with the offence which the lower Courts placed u/s 295 but must now be placed u/s 297.

As to the charge u/s 448, learned Counsel for the petitioners'' has drawn attention to the object stated in the charge, which is largely a repetition of the object stated in the charge u/s 295. It seems to me very doubtful whether those petitioners who are guilty of an offence u/s 297, Zafir and Amir Hassan, can be convicted u/s 448 as well and awarded a separate sentence on a charge of trespass so framed. The deorhi was part of the house of Ruplal but was also, having regard to the niche of the Naika Gossain, a place of worship so as to come within Section 297. But the two petitioners Usman and Nairn, to whom no charge u/s 297 has been brought home, were undoubtedly guilty of trespass u/s 448 with the object of interfering with the personal liberty of Ruplal Shah and catching hold of him, while the other two petitioners committed an offence u/s 297. The result is that the conviction of the petitioners Usman and Nairn u/s 295 must be set aside, together with the sentence passed upon them for that offence. The conviction of the other petitioners, Amir Hassan and Zafir u/s 295 must be replaced by a conviction under S; 297, the sentence passed upon them, on the charge, however, remaining unaltered. The conviction of these two petitioners u/s 448 must, however, be set aside, while that of Usman and Nairn, with the sentence passed upon them under this Section, will remain unaltered.