Siadullah Khan vs State of Bhopal

Mathur, J.C.

This is a criminal revision by Said-ullah Khan against his conviction of an offence u/s 295, Indian Penal Code, and the sentence of four months'' rigorous imprisonment. The trial Court had sentenced him to one year''s rigorous imprisonment but on appeal the conviction was upheld and the sentence was reduced to four month''s rigorous imprisonment.

The revision application was admitted crs two grounds, firstly that on the facts proved the offence committed was an attempt of the offence u/s 295, Penal Code, and not the substantive offence u/s 295 and secondly that in the existing conditions in the Bhopal State the sentence erred towards severity.

The relevant portion of Section 295, Penal Code, runs as below :

Whoever... defiles any... object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any persons is likelv to consider such... 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.

The prosecution ease as accepted by the two lower Courts is that the applicant was caught after he had thrown a burning cigarette on the ''Viman'' in a procession which was taken out by the Hindus'' nn 9-7-1954 during a festival. This finding of fact is justified by the evidence on record and the circumstances of the case and consequently cannot be interfered with in the present proceeding. The ''Viman'' was taken out by the H''ndus during a festival and apparently was an object held sacred by the Hindus. If a burning cigarette was thrown on the ''Viman'', it would have defiled the sacred object. The ''Viman'' was being carried on shoulders and consequently if a burning cigarette is thrown so as to defile that ''Vimara'' it cannot be said that the act of the applicant was unintentional or that he did not have the guilty knowledge as contemplated by Section 295, Penal Code. In any case, the applicant would be supposed to have the knowledge that the Hindus were likely to consider such defilement to be an insult to their religion-

Both the lower Courts appear to have been of the opinion that the burning cigarette did not actually fall on the ''Viman'' but struck the side and thereafter on the ground. There was thus not actual defilement though there was an attempt to commit an offence u/s 295, Penal Code. Before a criminal net is complete there is first of all an intention followed by preparation and actual attempt and when the attempt is successful the substantive offence is committed.

But where for certain unforeseen reasons beyond the control of the accused, the offence is not actually committed he can be punished of the offence of attempt to commit such an offence. In the present case the burning cigarette would not have struck the side of the ''Viman'' unless the applicant had intentionally thrown the cigarette with the criminal intention contemplated under the above Section.

After he had thrown the cigarette, he bad nothing else to do and if the cigarette did not fall on die ''Viman'', it was on account of the circumstances beyond his control, thus the offence of which the applicant should have been convicted is one of attempt of the offence punishable u/s 295, Penal Code.

The present offence is of a serious nature considering that it was likely to excite the feelings of the Hindu Community and such an act could result in a serious communal riot if the Hindu public as a whole were to take the law in their hands;'' but I understand that there had been no disturbance in the town of Bhopal and even thereafter the relations are peaceful- In these circumstances this Court can consider reducing the sentence to about one month which the applicant has already undergone.

The revision application is hereby dismissed except that the conviction is altered to one u/s 295/511, Penal Code, and the sentence is reduced to that already undergone. The applicant should be released immediately unless wanted in connection with some other case.