Lalo Mahto and Another vs Emperor

Varma, J.—This is a petition on behalf of Lalo Mahton, son of Dharam Mahton and Jagarnath Mistry, son of Gano Mistry, residents of village Harli, police station Barkagaon, district Hazaribagh, who have been convicted under Sections 447 and 426, Penal Code, and sentenced to pay a fine of Rs. 40 in default six months rigorous imprisonment each. Out of the fine realized Rs. 20 was to be paid to Shaikh Ali Mohammad as compensation u/s 545, Criminal P.C. Three other persons, Janke Panre, Horil Mahton and Sukra Koeri were tried along with the present petitioners but they were acquitted of the charge against them u/s 258, Criminal P.C. There was also a charge u/s 297, Penal Code, but all the accused who were taking their trial before the Magistrate were acquitted of that charge. As the sentence imposed was non-appealable I have not had the advantage of findings of fact by, a lower appellate Court. The case for the prosecution is that the complainant, Shaikh Ali Mohammad, belongs to village Badam which adjoins village Harli from which the petitioners come. On 26th February 1940; Shaikh Ali Mohammad filed a complaint alleging that the petitioners along with several others had trespassed into their graveyard and after entering it demolished and damaged a portion of the southern bind or boundary wall and two graves. The petitioners pleaded not guilty to the charge which was framed on 16th July 1940. Some points of law have been raised and I think it is proper to quote the charges framed against the petitioners in this case:

I, F.M. Hollow, Magistrate of the first class, hereby charge you (1) Janke Panre, (2) Sukra Koeri, (3) Horil Mahton, (4) Lalo Mahton, (5) Jagarnath Barhi as follows : First�That you on or about the 25th day of February 1940 at Harli broke the wall and damaged two graves of the Moslem kabristan at Harli with the intention of wounding the feelings of the Moslems or with the knowledge that the feeling of any person is likely to be wounded or that the religion of any person is likely to be insulted and thereby committed an offence punishable u/s 297, Penal Code, and within my cognizance;second--that you, on or about the 25th day of February 1940 at Harli, committed mischief to the kabristan of the Moslems at Harli and thereby committed an offence punishable u/s 426, Penal Code, and within my cognizance and thirdly -- that you, on or about the 25th day of February 1940 at Harli committed criminal trespass by encroaching ''upon the kabristan of the Hindus and thereby committed J an offence punishable u/s 447, Penal Code, and within my cognizance.

Evidently ''Hindus'' is a mistake for Mahomedans. The learned Magistrate who tried the case held a local inspection and has described the position of the various places in the case. A map has been attached with notes of the Magistrate thereon to the record of the case. It appears that plot Nos. 668 and 669 are south of plot No. 670 which is a grave-yard. On the western and southern boundaries of plots Nos. 673 and 670 is an artificial water channel about two feet in depth and two feet wide. Plots Nos. 668 and 669 belonged to the accused. The case of the accused persons is that the Mahomedans have encroached upon the Plots Nos. 668 and 669 when they cut the water channel and put up their bind. The learned Magistrate has come to the conclusion that the bind is more than two years'' old. He also found that some damage was done to the bind separating the plots Nos. 669 and 670 by removing the earth and also plants growing on it. But the learned Magistrate was careful to note that he noticed no grave old or new at that place. He has, therefore, come to the finding that the primary intention of Lalo Mahton and Jagarnath Mistry was to remove the bind and not to demolish any graves when doing so. The Magistrate did not find any grave demolished or in any way trespassed upon. It appears that sometime before the occurrence a dispute arose between the Hindus and the Mahomedans and on 4th November 1939, the Hindus filed a petition (EX. F) in which they alleged that the Mahomedans had closed the public passage through the kabristan and that they had also put up bhinds all round the kabristan so much so that some encroachment was made upon the lands of Daswa Chaukidar and Kishuna Lohar. This petition was sent or inquiry to the Sub-Inspector by the Sub-divisional Officer who reported that

the path has been closed and the parta of the raiyati lands of one Lalo Mahton and Debra Mahton of village Harli has been closed.

Later on a petition of compromise was filed which is Ex. D in this case by which the Hindus and the Mahomedans settled their differences. Mr. L.K. Chaudhury has urged that the learned Magistrate should not have utilised the results of his local inspection in coming to his conclusion in this case and cited various authorities in that connection. It is well established by now that local inspection is really meant for the purpose of understanding the evidence in a case, and Mr. Chaudhury has not been able to show how the learned Magistrate has acted beyond his powers when, he inspected the locality. As matter of fact, the Magistrate''s note which is on the record, has been of great assistance to me in forming a clear idea of the locality.

The point that arises really in this case is whether the charges have been brought home to the present petitioners. So far as the first charge is concerned, the learned Magistrate himself has come to the conclusion that all the accused were entitled to an acquittal evidently upon the finding that there was no grave-yard near about the place where the bhind is said to have been cut or the aloo plants uprooted. Having come to that conclusion I doubt if a conviction u/s 426 can be maintained because, according to the charge which I have mentioned above, the mischief committed is said to have been "mischief to the kabristan of the Moslems at Harli" but when the Magistrate has himself come to the conclusion that no grave was touched I doubt very much that it can be said that the kabirstan was affected by the mischievous act of the petitioners. So far as the charge u/s 447 is concerned, it must be remembered that before a conviction can be based u/s 447 it must be shown that the trespass was one mentioned in Section 441, Penal Code. There is no satisfactory finding on that point in the judgment of the learned Magistrate. Moreover, looking at Ex. P and Ex. D, it appears that a petition of complaint which alleged an encroachment upon the lands was made up and in view of these two documents a certain amount of doubt is left in one''s mind about the guilt of the petitioners. The other grounds urged by Mr. Chaudhury are to the effect that on the same evidence on which the other accused were acquitted there should not be a conviction of the present petitioners and when major portion of the prosecution case has not been believed the Magistrate should not have based a conviction upon the residue of the evidence. It is not necessary to go into those grounds because I am satisfied that on the facts and circumstances of the case it would not be safe to convict the petitioners either u/s 447 or u/s 426, Penal Code. Mr. K.K. Banerji, appearing on behalf of the opposite party has contended that the petition is barred by time and also that the petition is not in order; but when the petition has been admitted the question of limitation is not of much importance in a criminal revision about which no limitation has been fixed by statute and so far as the swearing of the affidavit by the accused himself is concerned it is not necessary for me to go into it because once the case has come before me I could deal with the matter under Sections 435 and 439, Criminal P.C. In the result the con-victions and sentences passed on the petitioners are set aside and the fines, if paid'', must be refunded.