Criminal Revision Case No. 1254 of 2005 · High Court · 2012

4. The trial court has questioned all the accused with regard to the offences punishable under Sections 448 and 506(1) IPC and for the offence punishable u/Sec.2 of Prevention of Insult to National Honour Act and they have pleaded not guilty and claimed to be tried.

5. The prosecution, in order to establish the offences against the accused, examined P.Ws.1 to 7 and got marked Exs.P1 to P4. No defence witness was examined on behalf of the accused. The learned Magistrate taking into consideration of the oral and documentary evidence, found A-1 and A-2 guilty of the offences stated supra and sentenced A-1 to undergo rigorous imprisonment for a period of one year and to a pay a fine of Rs.500/- in default shall suffer simple imprisonment for three months and that A-2 being an old man he was sentenced to under go simple imprisonment for a period one year and to pay a fine of Rs.500/- in default shall suffer simple imprisonment for a period of three months for the offence punishable u/Sec.2 of Prevention of Insult to National Honour Act; further A-1 was sentenced to under go rigorous imprisonment for a period of six months and to pay a fine of Rs.250/- in default shall suffer simple imprisonment for a period of one month and A-2 being an old man was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.250/- in default shall suffer simple imprisonment for one month for the offence punishable u/Sec.506(1) IPC. The conviction and sentence imposed on both the accused were directed to be run currently. A-1 and A-2 were found not guilty of the offence punishable u/Sec.448 IPC and according they were acquitted for the same. However, A-3 to A-12 were found not guilty of the offences stated supra and accordingly acquitted them for the same.

6. Questioning the said conviction and sentence, A-1 and A-2 filed an appeal in Crl.A.No.50 of 2000 and the learned II Addl. District & Sessions Judge (Fast Track Court) Srikakulam, by Judgment dt.14.7.2005 confirmed the conviction and reduced the sentence of imprisonment imposed against A-1 to three months on each count. Aggrieved by the same, the present revision case has been filed by the revision petitioner-A-1.

7. Now the point for consideration is whether the appellate court is justified in confirming the conviction imposed for the offence punishable u/Sec.2 of Prevention of Insult to National Honour Act, 1971 and u/Sec.506(1) IPC against the revision petitioner-A1 ?

8. Heard both sides.

9. The learned counsel for the revision petitioner submitted that the allegations made against the revision petitioner are not attributable to him and even according to the prosecution, A-1 along with others had gone to the high school and prevented flag hoisting function and removed the flag and that this case was foisted against the accused due to political rivalry between the parties and as such, the conviction imposed on the revision petitioner is liable to be set aside.

10. On the other hand, the learned public prosecutor pleaded that the evidence available on record clearly establishes that the revision petitioner along with his followers have committed the offence as alleged by the prosecution and that the concurrent findings of the trial court and the lower appellate court do not warrant any interference of this court in this revision.

11. P.W.1, who gave complaint, stated in his complaint that A- 1 was invited to the elementary school for flag hoisting and after flag hoisting at the elementary school all the accused by noticing that the Flag hoisting at the high school was proposed to be held through Tatababu, conceived an evil-idea to establish their political rivalry and followed by his henchmen went to High School and pulled away the flag and pole and threw it away and that when the Head Master and Teachers wanted to set right the flag to rearrange for flag hoisting, the accused got enraged and threatened the staff members, who due to fear, they went inside the room of high school and closed the door and accused pulled the flag and trampled and that staff were not allowed to come out for about three hours and that the police on coming to know about the incident came to the school and then flag hoisting was conducted. The said complaint was given by P.W.1 on

16.8.1995 i.e., on the next day of the date of incident. Whereas, P.W.1 while narrating the incident stated in his evidence that A-1 (Revision petitioner) came to the school along with his followers of 150 members and removed the flag and thrown it out and that he could identify only the accused persons and he could not identify the others.

12. P.W.2 is another teacher working in the said school. He stated that on the date of incident their staff members and the School children were present and awaiting for flag hoisting by the invitees one Tigudi Tatababu, who is the President of school committee. In the meanwhile the Ex-sarpanch-Murali Baba, who A-1 in this case along with his supporters nearly about 10 persons came to the school and removed and trampled the flag and flowers with their feet and that threatened them with dire consequences.

13. P.W.3 is another teacher stated in his evidence that on the date of incident A-1 and A-2 along with nearly 100 or 150 supporters came to our school and removed the flag along with the pole and restrained them in the office room for about three hours.

14. P.W.4, who is the resident of Allinagram and a businessman has supported the case of the prosecution. P.W.5, who is the resident of the said locality has stated that on the date of incident, A-1 and his followers came there and removed the flag pole and downed the flag since they did not invite them and that when they tried to pick up the flag and set it right, A-1 and his followers threatened them with dire consequences.

15. P.W.6 is the Investigating Officer stated in his evidence that he received the complaint on the next day of the alleged incident and about registering the same as a case in Cr.No.128 of 1995 of P.S.Etcherla.

16. On an over all perusal of the evidence available on record, there are discrepancies in the evidence of the prosecution witnesses. According to P.W.5, the police came to the spot and in their presence the flag hosting function was done. P.W.1 stated that police coming to know about the incident came to the spot and he gave the complaint. Whereas P.W.6 stated that no such complaint was given to him but only a written report was given that too on the next day in the police station. P.W.2 stated that he signed on the compliant but his signature was not appeared on Ex-P1- complaint. If really the incident took place, the police ought to have gone to the school and registered the case about the commission of the offence by the accused. As stated above, A-1and A-2 and their followers came to the school and damaged the national flag. None of the witnesses specifically stated anything about the specific overtacts of the accused in committing the offence.

17. The appellate court observed that though actually A-1 and A-2 have not pulled down the flat still they are responsible and liable for the acts of the members of the group. Further observed that reading and re-reading the whole evidence it is not possible to hold that no incident whatsoever took place. Therefore, A-1 and A-2 must not disturb the flag hoisting function arranged in the school. When the appellate court found that A-1 and A2 were not responsible for pulling down the flag holding them liable for the acts of the members of the group is perverse. A-1 cannot be held liable for the acts of his followers when he has not done an act of dishonouring the national flag. The other evidence produced by the prosecution does not disclose that the revision petitioner-A-1 has committed the offence punishable u/Sec.506(1) IPC.

18. Having regard to the facts and circumstances of the case, in my considered opinion, the prosecution has failed to establish the case against the revision petitioner beyond all reasonable doubt. The conviction and sentence passed against the revision petitioner by the trial court as confirmed by the lower appellate court are hereby set aside.

19. In the result, the criminal revision case is allowed. The sole revision petitioner is found not guilty of the offence punishable u/Sec.2 of Prevention of Insult to National Honour Act, 1971 and u/Secs.506(1) IPC and is acquitted for the same. The fine amount, if already paid by the revision petitioner-A1, shall be refunded to him. Dt.05.10.2012. ______________________ JUSTICE P.DURGA PRASAD