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Abdul Kader and anr. Vs. Abdul Kasim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1932Cal459,137Ind.Cas.872
AppellantAbdul Kader and anr.
RespondentAbdul Kasim
Cases ReferredJhulan Sain v. Emperor
Excerpt:
- .....had been erected over their graves, that the petitioners have been given khas possession of the land by the civil court, and that in attempting to take physical possession they have demolished those structures. the natural and inevitable result of damaging those structures was to wound the feelings of the complainant, and the petitioners must be presumed to have known that that would be the result of their action. although the petitioners have been found by the civil court to be the owners of the land in question, and although they have been given khas possession thereof by the civil court, that does not entitle them to disturb any graves that may be found existing in that land or to damage any structure that may have been raised over such graves, if by such act or acts the feelings.....
Judgment:

Patterson, J.

1. 'While not admitting the correctness of the findings of the lower appellate Court to the effect that the land which is the subject of the case is a graveyard, that the complainant's father and aunt were buried in the so-called graveyard, and that certain structures had been erected over their graves, Mr. Talukdar has directed his main argument on behalf of the petitioners against the findings of the lower appellate Court to the effect that the petitioners damaged the structures referred to above, that they did so with the knowledge that the complainant's feelings were likely to be wounded thereby, and that in damaging the said structures with such knowledge the petitioners committed an offence under Section 297, I. P. C.

2. The lower appellate Court has come to a clear finding to the effect that it had been established beyond doubt that the petitioner damaged the structures in question, but it has not discussed the evidence on which this finding is based, the reason given being that the fact had hardly been disputed by the defence. In the judgment of the trial Court it is stated that: ' the defence case is that the accused got a decree for khas possession of the land comprising the graveyard and got delivery of possession from the civil Court, and that the grave of the complainant's father was not a , real grave but a mock structure created during the pendency of the civil suit and as such they are entitled to break and demolish the mock grave,'

and also that:

the point for determination is whether the graves were real graves or mock structures.

3. Having regard to the nature of the defence raised in the trial Court it is pretty clear that the evidence to the effect that the petitioners had damaged the structures in question was not and could not be seriously challenged before the lower appellate Court, I have no doubt that the said Court was quite right in stating that the fact had hardly been disputed by the defence, and this being so it was not in my opinion necessary for the appellate Court to discuss the evidence on the point, though it would perhaps have been better if some indication had been given of the nature of that evidence.

4. The position is therefore that it has been found as a fact that the complainant's father and aunt were buried in the land in question, that certain structures had been erected over their graves, that the petitioners have been given khas possession of the land by the civil Court, and that in attempting to take physical possession they have demolished those structures. The natural and inevitable result of damaging those structures was to wound the feelings of the complainant, and the petitioners must be presumed to have known that that would be the result of their action. Although the petitioners have been found by the civil Court to be the owners of the land in question, and although they have been given khas possession thereof by the civil Court, that does not entitle them to disturb any graves that may be found existing in that land or to damage any structure that may have been raised over such graves, if by such act or acts the feelings of any person interested in the graves are likely to be (wounded. As has been pointed out by Richardson, J., in the case of Jhulan Sain v. Emperor [1913] 40 Cal. 548 the word 'trespass' as used in Section 297, I. P. C, has not the same meaning as that attached to the expression 'criminal trespass' as defined in Section 441 of that Code. He further says that as used in Section 297 the term 'trespass' means:

any violent or injurious act committed in such place and with such knowledge or intention as is defined in that section.

5. This is in my opinion a correct statement of law on the point, and the fact that the petitioners are the sole owners of the land in question does not render their action in damaging the structures that had been erected over the graves of the complainant's father and aunt, any the less a 'trespass' within the meaning of Section 297 of the Code, even though the petitioners have been placed in khas possession of the land by the civil Court.

6. The petitioners have, in my opinion, been rightly convicted, and there is no such defect in the judgment of the lower appellate Court as would justify this Court in interfering with the order by which the appeal by the petitioners was dismissed. The sentences are not excessive and the order dismissing the appeal and awarding compensation to the complainant is a proper one.

7. The Rule is therefore discharged.


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