BASAN BHOWMICK Vs. STATE

JUDGEMENT

(1.) The five petitioners Basan Bhowmick and four others were convicted by a Magistrate, First Class, Chandernagore under Sections 147 and 323 and 324 of the Indian Penal Code. In an appeal the learned Sessions Judge, Hooghly set aside the conviction of the petitioners in respect of the charge under Sections 323 and 324 I. P. C., but he maintained the conviction under Sec. 147 I. P. C. maintaining the sentence of one month's rigorous imprisonment passed by the teamed magistrate on petitioners Nos. 1, 2 and 3 and reducing the sentence passed by the learned magistrate on the petitioners Nos. 4 and 5 to rigorous imprisonment for one month each. The facts of the case are briefly as follows:

(2.) The complainant Bishnupada Maity and one Krishna Pada Maity who was an accused before the learned magistrate but was acquitted by him, are cousins leaving in separate but adjoining houses. The complainant Bishnupada has a tank and the tank is also used by Krishnapada and his family. Krishnapada and his family have been claiming the right of way to the tank over the inner courtyard of the house of the complainant Bishnupada Maity, and a dispute has been going on between the parties over this claim. The present occurrence took place on 20th of May, 1959 in the early morning; but previously there had been a row between the parties over the same dispute, i.e. over the attempt of the complainant Bishnupada Maity to block the pathway by erecting a compound wall and the attempt of Krishnapada Maity and his men to keep the Pathway open, and there were a case and a counter-case over that. On 19-5-59 Krishnapada Maity filed a civil suit against Bishnupada and others claiming declaration of the easement right of way over the inner courtyard of the house of the complainant Bishnupada Maity and a permanent injunction restraining the complainant and ethers from interfering with that right. A temporary injunction was asked for and an interim injunction was obtained ex parte on 19-5-59, But the notice of injunction had not yet been served on the complainant When the present occurrence took place.

(3.) According to the complainant there was a gap in the compound wall which was built up or rebuilt by masons under his supervision on 19-5-59. On 20-5-59 at about 5 in the morning the accused persons came armed with lathis, pickaxes and spears, and broke the newly built wall and caused hurt to several persons on the side of the complainant who offered resistance. The police were informed and the police took up investigation of the case and submitted charge-sheet for rioting and causing hurt against as many as 13 accused including the five petltioners.