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2007 DIGILAW 636 (JHR)

Madan Mohan Pathak v. State of Bihar

2007-08-07

D.K.SINHA

body2007
Order 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.1. for 10 years and fine of Rs. 5,000/- with default stipulation under Section 121A I.PC., 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 chargesheet. 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. 3. Learned Counsel Mr. A.K. Sahani for the appellants; submitted that the entire allegation against them is false and concocted and that they were malicLously 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. 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. 4. 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 121 A I.P.C. is most unfortunate, uncalled for and is liable-to be set aside. 5. Mr. of India so as to attract punishment under Section 121A I.P.C. The conviction of the appellants under Section 121 A I.P.C. is most unfortunate, uncalled for and is liable-to be set aside. 5. Mr. Sahani, learned Counsel further submitted that similarly, the allegation under Sections 323, 341, 353 I.P.C. against the appellants are not made out and there is no evidence that the informant had got his injuries examined by any Doctor as there was no medical evidence on the record. Similarly according to the prosecution case the alleged place of occurrence was the public road and on altercation a large number of villagers assembled there but none of the villagers being the independent witnesses supported the allegation that the informant-Headmaster was in any manner wrongly restrained or his path was obstructed by them so as to attract punishment under Section 341 I.P.C. Section 353 I.P.C. deals with assault or criminal force to deter public servant from discharge of his duty which begins:- "whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or any consequence of anything done or admitted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both." 6. In the instant case the prosecution failed to prove that any assault was made or criminal force was used by the appellants against the informant in the execution of his duty as public servant. The movement on the public road cannot be held to be a duty assigned to a public servant. The prosecution could not prove that the appellants prevented or terrorized the informant from discharging his duty as public servant. At the same time there is no corroborative evidence that the appellants terrorized the informant from hoisting National Flag or put any obstruction in such hoisting at the relevant place or platform and that separate statute has been framed by the Parliament for the offence related to National Flag and National Anthem. 7. Finally, Mr. Sahani submitted that the occurrence did not take place in the manner presented by the informant in his written complaint. 7. Finally, Mr. Sahani submitted that the occurrence did not take place in the manner presented by the informant in his written complaint. As a matter of fact, the informant Headmaster had permitted his near relative to perform "Shradh" ceremony in the school premises which is a public place which was continuing even on the republic day and it was objected by the appellants as conscious citizens and for that they picked up quarrel which resulted into altercation and taking advantage of the situation of such quarrel, the informant lodged a complaint with false allegation of serious nature. 8. Learned A.P.P. opposed the contention and submitted that the witnesses are consistent including the informant that the appellants obstructed the informant on the way as a result of which the National Flag could not be hoisted in the Govt. Primary School at scheduled time and therefore, the prosecution proved the charge under Sections 323, 341, 353 I.P.C. 9. Learned A.P.P. conceded that the prosecution could not prove by adducing evidence that the appellants abetted waging war against Govt. of India so as to attract punishment under Section 121 A Indian Penal Code therefore, appropriate order may be passed in this regard. 10. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, from the perusal of the entire materials on record including the evidence produced. and adduced on behalf of the prosecution, I find that charge under Section 121 A I.P.C. is not proved against the appellants and their conviction in such offence is based upon erroneous consideration without application of judicial mind and also without meeting out the requirement of law for such of fence. I further find that the conviction of the appellants was based upon the following observation of the Triul Judge, "From the perusal of the evidence on record it appears that the informant was going to the school for performance of flag hoisting and was intercepted, restrained, abused and assaulted by the accused persons on way. They also deterred him from hoisting National Flag at the appropriate time and discharged his duty as a public servant. There is overwhelming evidence on the record to support the charges against the accused persons." 11. They also deterred him from hoisting National Flag at the appropriate time and discharged his duty as a public servant. There is overwhelming evidence on the record to support the charges against the accused persons." 11. As regards the defence case, the Trial Court further observed:- "The next contention of learned defence counsel is that this prosecution case is of rivalries between the parties with regard to the performance of "Shradh" ceremony in the school premises. To my mind this is entirely a different matter which cannot be set up as a defence plea to discard the authenticity and probability of the prosecution version which has been otherwise proved by cogent and reliable evidence." 12. I find that the above observation of the Trial Judge is based upon erroneous consideration, who did not appreciate the counter version of the defence having bearing in the evidence adduced on behalf of the defence. The D.W.1 testified that there was no assault rather the appellants objected the informant with regard to the performance of "Shradh" ceremony in the school premises and there was no obstruction in the movement of the informant so as to restrain him from hoisting National Flag. D.W. 2 stated that flag was hoisted in the school at about 10/10.30 O'clock. The Headmaster of the school/ informant was neither obstructed nor assaulted at the hands of the appellants rather the appellants had simply objected performance of "Shradh" ceremony in the school premises. The evidence of both the defence witnesses was corroborated' by D.W. 3 in his testimony. He further stated that such objection by the appellants caused annoyance to the Headmaster of the School and the false case was brought about. 13. The important fact which is revealed from the evidence on record that there is vital contradiction between the statement of the informant P.W. 5 Rajendra Mishra and the Investigating Officer P.W. 7. According to the informant, the place of occurrence was on the road opposite the house of the appellants whereas according to the Investigating Officer it was the school premises where the altercation took place and assault was made to the informant by the appellants. But the Investigating Officer did not find any injury on the person of the informant as admitted in his testimony. But the Investigating Officer did not find any injury on the person of the informant as admitted in his testimony. The informant P.W. 5 testified that the appellants assaulted him who inflicting 2/4 blows with sticks but there was no injury on his person, which makes the entire prosecution case doubtful. The informant admitted that "Shradh" ceremony was being performed in his school from before. He testified that though he had received 4 strokes from "Danda" (Stick)' but he did not mention this fact in his written report, which he presented first point in time. It is relevant to mention that the informant in his written report mentioned the names of as many as 16 witnesses in whose presence the alleged occurrence took place but out of them P.W. 1 Braj Kumar Singh, P.W. 3 Bishwanath Singh and P.W. 4 Rabindra Singh were produced and examined on behalf of the prosecution but none of the said witnesses claimed that the occurrence took place in their presence rather the alleged occurrence was apprised to tem by the informant P.W. 5 Headmaster and they were Assistant Teacher in the School subordinate to the Headmaster-Informant and may be under his influence. 14. In the facts and circumstances, I find that the prosecution case as presented by the informant is not fool proof and the occurrence did not take place in the manner presented by the prosecution, rather a reasonable doubt is created as to the complicity of the appellants for the alleged offence wherein they have been convicted by the Trial Judge under Sections 121 A, 323, 341 & 353 I.P.C. and whenever any doubt is created it goes always in favour of the accused. 15. In view of the above I find and hold that in the facts and circumstances, the conviction of the appellants in the aforesaid sections of I.P.C. is not sustainable which is accordingly set aside. 16. This appeal is allowed. The appellants are discharged from the liabilities of their bail bonds.