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Criminal Revision No. 512 of 1960, decided on 1st December, 1960.

‑Does not require investigation into possession or ownership of land used as place of worship. Section 295 of the Penal Code, 1860 speaks of defiling of any place of worship or any object held sacred by any class. The section does not require investigation into possession or owner ship of the land.

Bechan Jha and others v. Emperor .A IR 1941 Pat. 492 distinguished..

A. W. Chowdhury for Petitioners.

B. N. Chowdhury for Opposite‑Party.

This revision is directed against the judgment and order of Mr. A. H. Chowdhury, Additional Sessions Judge, Sylhet dated, the 14th May, 1960 upholding the conviction but reducing the sentence to rigorous imprisonment for three months and setting aside the sentence of fine of Rs. 200 in appeal by the petitioners against the judgment of Mr. W. A. Choudhury, Magistrate, 1st class, Sunamganj, convicting the petitioners under section 295 of the Pakistan Penal Code and sentencing each of them to rigorous imprisonment for six months and to pay a fine of Rs. 200 in default to rigorous imprisonment for two months more each.

2. The‑prosecution case was that the Hindus of Akilpur had a place of worship known as Krisnatala in the same village where they offer pujas in Kartik and Paush Sankrant days each year. The area of the place is about 2 jaisthas which is fenced round and there was a kadam tree in it with an Altar (Bedi) around the tree ; that this was a "Krishnatala" was known to all including the petitioners.

3. On 29th of Kartik, 1366 B. S. corresponding to 16th November 1959, the petitioners along with others came variously armed and cut down the kadam tree, destroyed the altar by spading and damaged the fencing thereof m spite of protest of the complainant Behari Lal Paul. As a result the religious feeling of the Hindus have been wounded.

4. The defence case was that the disputed land belonged to the petitioner Ukil Ali by purchase from Ahmad Uila, which formerly belonged to Jahur Ali. Having failed to purchase it from Ahmad Ullah, the complainant had filed the case falsely.

5. P. Ws. were examined in the case and there was only one D. W.

On those facts the petitioners were convicted and sentenced as above which, was modified by the learned Additional Sessions Judge as stated above.

5. Mr. A. W. Chowdhury, the learned Advocate appearing for the petitioners has argued that the identity and location of the plot have not been proved beyond doubt, Mr, Chowdhury has pointed out that in the petition of complaint the mouja has been given as Ukilpur where as while P. W. 1 in his examination‑in -chief stated that the mouja was in Ukilpur, in cross‑examination he stated the mouja was in Kumarpur. Mr. Chowdhury has further contended that in Civil Court decree there is no mention of the mouja at all but certain boundaries were given and further that at any rate the Civil Court decree was not inter partes. Mr. Chowdhury has also contended that in the settlement operation the disputed land was not recorded as a place of worship.

6. That being the position Mr. Chowdhury wants to say that there is a vagueness with regard to the land itself.

7. It appears that the occurrence has not been challenged by the defence. Their stand is that they possessed the land by purchase.

8. Mr. B. N. Chowdhury, the learned Advocate for the opposite‑party has argued that once the defence not having challenged the occurrence it was for them to prove their posses sion beyond any shadow of doubt. The defence not brought forward the vendor nor having produced any rent receipts, Mr. Chowdhury has submitted that the stand taken by the defence could not be established.

9. Coming further into the facts of the case Mr. 13. N. Chowdhury stated that so far as the Civil Court decree goes, the boundaries as given conclusively fixes the identity of the land and that the suit was duly advertised in the paper under rule 8, Order I of the Civil Procedure Code. Mr. B. N. Chowdhury has also pointed out that in cases of the present kind the proprietary right or other wise of the l9nd is not so very material; that witnesses have come forward to state that in that particular place there was a Debastan'.

10. In the circumstances as stated, no doubt is left with regard to the identity and location of the Debastan'.

11. Section 295 of the Pakistan Penal Code is as follows:

"Whoever destroys, damages or defile any place of worship, or any object held sacred by any class of persons with the inten tion of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both".

12. The section as above speaks of defiling of any place of worship or any object held sacred by any class. The section, to A me, does not seem to require investigation into the possession or ownership of the land in the sense urged by the learned Advocate for the petitioners.

13. Mr. A. W. Chowdhury has cited the decision in Bechan Jha and others v. Emperor (A I R 1941 Pat. 492) in which it was held inter alia as follows:

"The use of a but standing on the belangan plot of an agri cultural tenant as a public mosque without the landlord's permission is so inconsistent with the purpose for which the land is let as to render the tenant liable to be ejected from the whole of his holding:

Such use being entirely unwarranted the mere attempt to convert the hut into a mosque cannot render it a place of worship within the meaning of S. 295. The Azan or public call to prayers by Moulvi at the hut cannot make the hut a public mosque inasmuch as none of the villagers can be said to be in a position validly to make the implied dedication. Nor can the but be regarded as an "object" held sacred by any class of persons within the meaning of section 295 since the attempt to convert it into a mosque is itself contrary to law. The destruction of the hut therefore cannot constitute an offence under section 295".

14. Mr. A. W. Chowdhury wants to state that since the bedi was raised without the consent of the, landlord, it could not have any recognition in the eye of law.

15. The landlord has not come forward here and the decision relates to a different situation, namely, that the landlord wanted to eject a tenant to whom the land was given for agricultural purpose.

16. Further, it appears that in that decision the mosque itself was not treated as sacred in the same sense as a Hindu temple.

17. Under the circumstances stated, although there may be some discrepancy in the evidence on the point of exact location of the place of worship, I do not think that the petitioners could be immunised from the reach of this particular section.

18. A. W. Chowdhury has ultimately craved for a more lenient sentence.

19. It appears that the Court below has already considered the question of sentence leniently.

20. Under those circumstances, there can be no further reduction of sentence.

21. The Rule is, therefore, discharged. It is directed that the petitioners should surrender to their bail bonds and serve out the sentence imposed on them by law.

K. B. A.

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