^ APPELLANT: HIGH COURT OF CHHATTISGARH. BILASPUR Crjminal Appeal No.816Qf1991 Shankar Lal Gupta son of Shri Heera Lal Gupta, aged 40 years, by occupation Business, Nagar Palika Sabji Bazar, Dongargarh, P.S. and Tahsil Dongargarh, Distt. Rajnandgaon M.P. (nowC.G.) RESPONDENT: Versus The State of M.P. (now the State of C.G.) through P.S. Dongarhgarh Distt. Rajnandgaon M.P. (now C.G.) {Appeal under Section 374 ofthe Code ofCriminal Procedure, 1973} Present: Mr. G.S. Ahluwalia, counsel for the appellants. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Single Bench: Hon'ble Mr. T.P.SharmaLJ ORALJUDGMENT (9-7-2010) 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 6-8-91 passed by the 2 Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 173/90, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission ofoffence underSection 333 ofthe I.P.C.,sentenced him to undergo R.l. for three years and pay fine of Rs.1,000/-, in default of paymentoffinetofurtherundergoS.I. for six months. 2. Conviction is impugned on the ground that without any iota of evidence that the appellant has caused injury to the complainant to deter him from discharge of public duty, the trial Court has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 18-5-89 at about 3.15 p.m. complainant Bhimlal (PW-3) - sweeper along with Kunjilal (PW-4) - sweeper was discharging his official duty of removing food articles unfit for consumption, at that time, the appellant quarrelled with Kunjilal (PW- 4) and tried to assault him. When complainant Bhimlal tried to save Kunjilal, the appellant assaulted Bhimlal with wooden plank and caused grievous injury. F.I.R. was lodged on 21-5-89 vide Ex.P-8. Bhimlal was sent for medical examination on the same day after recording rojnamcha on the basis of written complaint Ex.P-1. He was examined by Dr. R. Sadani (PW-7) vide Ex.P-5 and defused swelling over rightforearm was found on his body. He was also examined by radiologist and fracture of lower end of radius was found vide Ex. P-6. 4. The matter was investigated and charge sheet was filed before the Court of Judicial Magistrate First Class, Dongargarh, who in turn, committed the case to the Court of Sessions, Rajnandgaon from where learned Additional Sessions Judge received the case on transferfortrial. 5. In order to prove the guilt of the appellant, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication. He has also examined defence witnesses Banti @ Pramod Kumar (DW-1) & Fundulal (DW-2). 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. I have heard learned counsel for the parties, perused the judgment and record of the trial Court. 8. Learned counsel for the appellant submits that in the present case,he is not disputing the incident and the injuries sustained by Bhimlal, but he is disputing conviction & sentences of the appellant. Learned counsel further submits that as per the evidence of complainant Bhimlal (PW-3), Kunjilal (PW-4), the public servant, was discharging his official duty and at that time the appellant quarrelled with Kunjilal and tried to assault him, but inthe meanwhile, Bhimlal (PW-3) came to save Kunjilal and thereby received injury over hand resulting into fracture. Learned counsel also submits that while saving Kunjilal or while intervening in the quarrel, Bhimlal (PW-3) - public servant was not discharging his official duty. The appellant herein has not caused any grievous injury to complainant Bhimlal (PW-3) to deter him from his public duty and, therefore, the offence committed by the appellant is not punishable under Section 333 ofthe I.P.C., but is punishable under Section 325 of the I.P.C. Learned counsel further argued that the appellant was in custody for twenty days and he is facing trial since 1990. Present age of the appellant is seventy Soma 3 ^^y years and again sending him to jail for the aforesaid offence wou!d not serve any purpose. 9. On the other hand, learned State counsel opposes the appeal and submits that although at the time of saving Kunjilal (PW-4), Bhimlal (PW- 3) was not discharging his official duty, but the appellant has caused grievous injury to Bhimlal. After appreciating the evidence available on record, learned trial Court has rightly convicted & sentenced the appellant. 10. In order to appreciate thearguments advanced on behalf of the parties, I have examined the evidence available on record. 11.Evidence of Bhimlal (PW-3), Kunjilal (PW-4), Manharan Singh (PW-5) & Dr. R. Sadani (PW-7) are sufficient for drawing inference that the appellant has caused grievous injury to Bhimlal at the time of incident. 12.As regards conviction of the appellant under Section 333 of the I.P.C., evidence of Bhimlal (PW-3), the complainant, clearly shows that the appellant has not caused any injury to Bhimlal while he was discharging his public duty or while he was removing the food articles unfit for consumption, but the appellant has caused injury to Bhimlal while he was saving Kunjilal. This act clearly shows that the appellant herein has not caused any injury to Bhimlal to deter him from discharge of his public duty. Therefore, conviction of the appellant under Section 333 of the I.P.C. is not sustainable under the law. While convicting the appellant, the trial Court has not considered the aforesaid legal aspect of the case and thereby committed illegality. 13.As regards the question of sentence, the appellant was in custody for twenty days and he is facing trial since 1990. Considering the case again sending the appellanttojail will not serve any purpose. 14.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 333 ofthe I.P.C. is altered to Section 325 ofthe I.P.C. and the appellant is sentenced to the period already undergone by him i.e. twenty days and fine of Rs.3,000/-, in default of payment of fine to undergo R.l. for six months. he shall pay fine before the trial Court within from today. ——— Sd/- i T. P. Sharma Judge ^^