Judgement

SHELAT, J.:- The facts leading to the prosecution of the two appellants may first be stated :

In 1965, the two appellants were students of Kanhai Lal Sah College, Nawada, a college affiliated to the Magadha University. The college was a center for the annual examination of B. A. Part I held by the University.

2. May 1, 1965 was the day when the students appeared in English Paper II. At about 10.20 a. m. GuruPrasad (P. W. 1), the Head of the Hindi Department of the College, who also was on that day officiating as the Superintendent of the examination in the absence of the Principal, found appellant 1 talking with an outsider at the eastern gate of the college and taking a slip of paper from that outsider. When appellant 1 returned to his seat in the corridor of the examination hall, where he had been allotted a seat. Guru Prasad P. W. 1 went up to him and took away the said slip of paper from him. He, however, permitted appellant 1 to proceed with his examination.

3. At about 10.30 a.m. the examination was over,. Appellant 1 then went up to Guru Prasad and demanded back the said slip of paper. On Guru Prasad refusing to give it back, appellant 1 slapped him and twisted his hand. On the advice of a supervisor (P. W. 2), Guru Prasad retired from the hall and went up to the college office situated on the upper floor. While he was narrating the incident to his colleagues in the office, amongst whom was also P.W. 4, a Professor of the Patna Commerce College appointed by the University as an on server, a mob of students made forcible entry into the office room. Amongst that mob were the two appellants. Appellant 2, also a student of the college in B. A. Part II, assaulted Guru Prasad. P. W. 9, a peon of the college, however, prevented appellant 2 from further assaulting Guru Prasad by catching hold of him and removing him from the office room. The office room was then bolted from within.

4. After the students had thus left the office room Guru Prasad sent a report (Ex. 1) of the incident to the Sub-divisional Magistrate requesting that action against the two appellants should be taken. Since no action was taken by the Magistrate, Guru Prasad filed another application before the Sub-Divisional Officer on June 5, 1965 requesting him to take action against the two appellants. On June 18, 1965, the Sub-Divisional Magistrate took cognizance of the offence on the basis of the said application and sent up the case to the Judicial Magistrate who framed charges against the two appellants under Ss. 323, 448 and 504 of the Penal Code.

5. The defence of the appellants was denial of the whole of the incident coupled with the allegation that they had been falsely involved in the case.

6. The Trial Magistrate refused to accept the prosecution case mainly on the ground that the prosecution witness were all members of the college staff and therefore, the colleagues of Guru Prasad, and that they belonged to the same caste as Guru Prasad. In the result, he acquitted both the appellants. On an appeal to the High Court against the said acquittal, the High Court found as a fact that the generalisation made by the Magistrate that all the witnesses were colleagues of Guru Prasad and belonged to his caste was far from correct. Of the ten witnesses examined at the trial, one was a clerk of the University who produced the said slip of paper which had been sent to the University by Guru Prasad. Three of the witnesses were, a student, a clerk and a peon of the college, and only two witnesses were professors. On a consideration of the evidence and after finding that the reasons given by the Magistrate for declining to accept the prosecution evidence were untenable, the High Court set aside the order of acquittal, except on the charge under S. 504, and convicted the two appellants under Section 323, and in addition convicted appellant 2 under S. 448, and sentenced appellants 1 and 2 under S. 2 under S 323 to rigorous imprisonment for one year each. The High Cou