- (1.) THE present appeal is directed against the judgment of conviction under Sections 121 A/323/341 and Section 353 I.P.C. passed by the 6th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 75/99 whereby and whereunder the appellants herein have been sentenced to undergo R.I. for 10 years and fine of Rs. 5,000/ - with default stipulation under Section 121A I.P.C., R.I. for one year under Section 323. and imprisonment for two years under Section 353 as against each of the appellants and further one month imprisonment to each of them for their conviction under Section 341 of the I.P.C.
(2.) THE prosecution story in short is that on 26.1.98 while the informant was proceeding to school on the republic day for hoisting National Flag at about 7.30 a.m., he was obstructed and abused by the appellants who tried to assault him and for such. reason the informant Shri Rajendra Mishra, Headmaster of Government Primary School, Khapchanderpur could not hoist the National Flag.and on his written report forwarded by the Area Education Officer, Panki PS. Case No. 6 of 1998 was registered against both the appellants in those sections of I.P.C. in which they have been convicted. The police after investigation submitted charge -sheet. In course of their trial the appellants denied the occurrence and claimed to be tried by pleading not guilty. As many as 7 witnesses were produced and examined on behalf of the prosecution. On the other hand, the defence produced three witnesses in support of the fact that the occurrence did not take place in the manner presented by the prosecution. The appellant No. 1 Madan Mohan Pathak was aged about 75 years whereas appellant No. 2 Rabindra Nath Pathak was 43 years old on the day of the judgment on 3rd June, 2000 and in this manner the appellant No. 1 is presently 82 years of age whereas his son appellant no. 2 has crossed his 50. Learned Counsel Mr. A.K. Sahani for the appellants; submitted that the entire allegation against them is false and concocted and that they were maliciously prosecuted on the whim and capricious of the informant P.W. 5 Rajendra Mishra, Headmaster whose illegal work in the school premises was opposed by the appellants in the past and for that the informant was searching and on finding out an appropriate occasion he implicated the appellants on false allegation. Mr. Sahani pointed out that as a matter of fact, the written report was presented to the Area Education Officer, Panki by the informant stating that he was prevented by the appellants from going to school and hoisting flag. It was further stated that at the time of altercation and exchange of abuses, a number of witnesses arrived at the place of occurrence on the road opposite the house of the appellants who were named in the written complaint and their signatures were also ascertained on such complaint but only three out of such 16 witnesses were examined on behalf of the prosecution. Yet, it is important to mention that none of the 3 supported the prosecution case as the eye - witness rather they are consistent that they derived information from the Headmaster. The case was instituted at the police station only on the forwarding letter of the Regional Education Officer but the Regional Education Officer has not been examined in the instant case in support, of the complaint made by the informant and in this manner the defence has been highly prejudiced for being denied of the opportunity to cross -examine the Area Education Officer on his subjective satisfaction on the complaint made by the Headmaster -informant.
(3.) ADVANCING his argument Mr. .Sahani submitted that according to the. prosecution case the place of occurrence was opposite the house of the appellants on the public road but none of the independent witnesses has supported the allegation made by the informant and without appreciating this aspect the trial court erroneously convicted the appellants on the uncorroborated and untrustworthy testimony of the informant. It is not the prosecution case that the appellants forcibly restrained the informant and prevented him from hoisting the National Flag which caused inference that they conspired to wage war against the Govt. of India. On the other hand, the defence witnesses categorically stated that flag was hoisted in the school on 26.1.1998 at the schedule time and therefore, under the facts and circumstances of the case it cannot be alleged that the appellants attempted to wage war or abetted waging of war against the Govt. of India so as to attract punishment under Section 121A I.P.C. The conviction of the appellants under Section 121A I.P.C. is most unfortunate, uncalled for and is liable -to be set aside.;