(1.) 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 Secs.447 and 426, Indian 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 under Section 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 under Section 258, Criminal P.C. There was also a charge under Section 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 16 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 25 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 under Section 297, Indian 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 under Section 426, Indian Penal Code, and within my cognizance and thirdly -- that you, on or about the 25 day of February 1940 at Harli committed criminal trespass by encroaching upon the kabristan of the Hindus and thereby committed J an offence punishable under Section 447, Indian Penal Code, and within my cognizance.
(2.) 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 4 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.
(3.) 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.