BABBON SHEIK Vs. EMPEROR

JUDGEMENT

(1.) In this case a Rule has been granted calling on the District Magistrate to show cause why a conviction of the petitioners of an offence of rioting under Section 147 of the Indian Penal Code should not be set aside on two of the grounds mentioned in the petition. The first of these is that the frying Magistrate held a local enquiry and was influenced by certain things ho saw there, and imported his knowledge of what he had seen into his judgment in disposing of the case; the second, that the common object stated in the charge was different from that found by both the lower Courts.

(2.) The second objection may be very shortly dealt with. The common object charged was by means of criminal force to obtain possession of the killkhana lands belonging to one Ghisa Mia. The lands so referred to comprised a fifteen-cottah plot and a five-cottah plot; the offence was found to have been committed to obtain possession of the five-cottah plot only. As the five- cottah plot was included in the killkhana lands, we have no hesitation in holding that this fact creates no such variance between the common object alleged and that proved as will invalidate the conviction. As far as this part of the Rule is concerned, it must, therefore, be discharged.

(3.) The first ground, however, requires fuller consideration. The complainant alleged that his master was in possession of the five-cottah plot; the accused contended that one of their number was. In support of his contention, the complainant alleged that the plot in dispute contained five pits which his master used for the disposal of refuse from slaughter-houses he had elsewhere, and also a hut erected for the accommodation of his master's servants. For the defence, it seems that possibly the existence of the pits, and certainly their use as alleged, was denied, and it was alleged that one of the petitioners had erected the hut as a cattle- shed. During the hearing of the case, and apparently after both these points had been made, the trying Magistrate suggested that he had better see the land in question. No objection was made to this, and he accordingly saw the land in the presence of the complainant and the accused. There is no doubt that he made use of the impulsion made on his mind by what he saw in deciding the question he had to consider.