AMIR HASSAN Vs. EMPEROR

JUDGEMENT

(1.) The four petitioners have been convicted of offences under Section 295 and 448, Indian Penal Code and sentenced under the former section to four months rigorous imprisonment and under the latter to a fine, of Rs. 20 each. The first information in the case was lodged shortly after the occurrence-by Ruplal Shah, who has been referred to-below as the complainant. The northern part of Ruplal's house was what he calls a deorhi, a small room, 5ft. 5 in. by 3ft. 8 in., which, had no wall on the north and was connected with the rest of the house by an opening in the southern wall. The main entrance to the house was on the east, towards a road, while the north faced a lane. In a niche in the eastern wall of the deorhi Buplal kept his deity known as the Naika Gossain.

(2.) Ruplal was constructing a wall to close up the northern end of the deorhi, when on the morning of 25 January last the petitioners came there with a large number of other men. The petitioner Usman asked Ruplal why he was closing the northern end, and Ruplal said that he had a right to do so. The petitioners said that there was a saint's tomb in the room and that the Muhammadans were entitled to access to it. Ruplal denied this and said that he had his family deity in the deorhi. Upon this there was an altercation, and the petitioners Usman and Nairn caught hold of Ruplal, and on the orders of the petitioner Amir Hassan, the petitioner Zafir demolished the wall and took the pindi of the Naika Gossain from the niche and threw it into a drain running by the side of the lane. This prosecution story has been accepted by the lower Courts, rejecting the defence story that there was a saint's tomb in the deorhi and that the Muhammadans of the place used to hold their Urs there every year.

(3.) The Sub-Inspector, who happened to be a Mahomedan officer and investigated the case at once, found no marks of a tomb in deorhi and was shown a small, partly wet lump of earth lying in the drain which Ruplal claimed as his Naika Gossain, a deity referred to, as the learned advocate who appears for the Grown has pointed out, at p. 62 of the Gazetteer of this district. In the niche in the eastern wall he found marks of vermilion, milk, and oil which supported Ruplal's story of the worship of the deity and did not fit in with the defence story of a tomb, as a tomb ought to have a light on the north. Evidence was given by a local mukhtar, who was a Municipal Commissioner at one time, that when Ruplal's father applied for permission to build a latrine near about this spot, he made an enquiry at the instance of the Municipal authorities and reported that permission should be refused because there was a tomb there.