KAZEM SARDAR Vs. STATE

JUDGEMENT

(1.) The petitioner Kazem Sardar was placed on his trial along with his son Moslem for an offence of arson in respect of a hut belonging to one Narendra Haldar. Moslem is about 14 years of age. The allegation against him was that he actually set fire to the hut and the allegation against Kazem was that it was at his instance that Moslem did so. The trial was held by an Assistant Sessions Judge of Alipore with the aid of a jury and resulted in a verdict of guilty by a majority of 3 to 2. The learned Judge accepted the verdict and sentenced the petitioner to rigorous imprisonment for two years and also a fine of Rs. 250/- in default rigorous imprisonment for six months more. It was also directed that if the amount of line was realised, half of it was to be paid to the complainant as compensation. In the case of Moslem, the learned Judge took into account his extreme youth as also the fact that he had acted under the orders of his father and so he passed on him only a sentence of detention till the rising of the Court.

(2.) Against his conviction and sentence Kazem Sardar appealed to the Sessions Judge, Alipore, but the appeal was dismissed summarily. Thereupon the present Rule was obtained. The State did not appear to oppose the Rule, but the complainant appeared to oppose it.

(3.) In order to appreciate the grounds which were urged on behalf of the petitioner, it is necessary to state a few facts. The prosecution case was that Kazem Sardar became strongly desirous of acquiring a plot of homestead land, but the owner of the land, one Nilambar, settled it with Narendra Haldar, much to Kazem's 'chagrin'. To the west of this homestead land there is another, plot of land, about which also there was some dispute between Kazem and Nilambar. Narendra Haldar built a hut on the homestead land, already referred to, and began to live on it. The relations between Kazem and Nilambar had at one time been friendly, but because of these land disputes they had recently become strained to the point of a bitter quarrel. There had been litigation with respect to the homestead land, and there were two suits, one of which had resulted in Nilambar's favour and another in favour of Kazem or his benamdar and both were under appeal. These facts, according to the prosecution, formed the background of the occurrence which took place on 9-9-1949. On that day, so it was alleged, Kazem went to the plot of land lying to the west of the homestead land with a mob of about 100 or 125 men, variously armed, and carried out an operation of 'Khopi' which has been explained as re transplantation of paddy seedings. After finishing that job, the mob marched back and while they were returning, Kazem halted near the hut of Narendra and ordered his son Moslem to set fire to it. Moslem did so, with the aid of a bundle of burning straw which he was carrying or which was handed over to him by his father. At the time Narendra was not at home, having gone to a 'hat', but a son of his, one Adrista, a boy of about 10 or 12 years, was at home. He had come back from school during the midday break for his meal and had not gone back and at the time the hut was set on fire, ho was seated in the varandah, engaged in conversation with three co-villagers. The thatch of the hut immediately caught fire, one thatch being completely burnt out and another partially gutted. Some of the articles inside the hut, but not very many, were damaged. On that very day Adrista lodged a First Information at the Police Station and thereupon Police Investigation started. Within a few days, however, Narendra began to think that the Police were not doing all that they should have done and he filed a petition of complaint on 24-9-1949. The police submitted a final report on the 20th of October and the case then proceeded on the basis of the petition of complaint. In due course Kazem and Moslem were committed to the Court of Session with the result I have already stated.