SURENDRA NATH SINGHA Vs. JANAKI NATH GHOSE

JUDGEMENT

(1.) In this matter six persons were put on their trial before the Honorary Magistrate at Alipore on a charge of rioting with the common object of taking possession of the complainant's land and assaulting the complainant's durwans. The date of occurrence was the 9 September, 1924. It appears that this land, which is situate within the suburb of Calcutta, consisted of 7 1/2 bighas. The complainant's case was that it was purchased in 1903 by Mrityunjoy Sirdar and Khirode who had since then cultivated paddy, lady's fingers, brinjals, etc., on the land. But on the day complained of when the complainant, who is the son-in-law of Khirode, went to the land with Khirode's son and two durwans, the accused persons, two of whom are the superior landlords, assaulted the durwans, drove away the complainant, and in the evening set to work to construct a shed on the land. It appears that directly after the occurrence took place the complainant came to the Police Magistrate and reported the matter, and again in the evening, when he found; the accused party constructing the hut, he reported the matter to the Assistant Commissioner of Police who sent the Inspector who arrested five of the accused on the spot.

(2.) The defence set up was that the land was never in occupation of Khirode, and was all along in possession of accused No. 6, and that when the hut was newly completed, the complainant went there along with the two durwans who were drunk, and forcibly tried to demolish the hut, and were driven off. It was thus the case of both sides that there was some occurrence on the spot on the day in question.

(3.) The Honorary Magistrate recorded evidence at very great length, and finally, relying mainly on the statement of one prosecution witness given in cross-examination, to the effect that the construction of the, hut commenced about eight or ten days before the day of the present occurrence, concludes by saying, "In view of the fact that the case under Section 145 of the Cr.P.C. is still pending, and the hands of the Magistrate who will hear it ought to be left unfettered, I am of opinion that I should not say anything beyond giving the accused the benefit of the doubt, and acquit them under Section 258 of the Cr.P.C."