JUDGMENT 1. - This appeal is directed against the judgment dated 1-8-1983 passed by the Additional Sessions Judge, No. 2, Jaipur City, Jaipur, in sessions case No. 45/82, whereby he convicted the accused appellants under Section 333/34 IPC and sentenced them to suffer rigorous imprisonment for a period of four years' and to pay a fine of Rs. 200/- (in default of the payment of fine, further to two months' RI). 2. Brief facts giving rise to this appeal are that a written report was lodged by one Bajrang Singh, who was posted as Forest Guard at Chowki-Mugana, Road No. 1, P. S. Vishwa Karma (Jaipur) on 26-2-1981 wherein it was stated that on that day at about 8.00 a.m., he alongwith Umrao Singh and Banji Singh, Forest Guards, left their post for a round, they found one Kalyan S/o Mewa Ram, R/o Mayala Bara cutting wood unauthorisedly, where upon F.I.R. No. 1598/1981 dated 26-2-1981 was registered against the accused Kalyan and Kalyan's axe was also seized. It has been further alleged that thereafter when he was doing Govt. work in his room and Gopi Ram was standing outside on the Chabutara in uniform, two sons of Nanda Ram Balai, R/o Udak-panad, came to the Chabutara and started hurling filthy abuses upon the complainant. It was alleged that these two boys also challenged as to how the complainant could seize the axe. Upon hearing the noise, the complainant came out of his room and saw that two sons of Nanda Ram Balai whose names he did not know, but he knew them by faces, were present there. The complainant also noticed that Kalyan, his brother-in-law who was the resident of Harmada and two other persons were also standing at a distance. On seeing the complainant, these persons came to the gate and started scuffle with the complainant. Umrao Singh, Banji Singh, Har Sahai Bagda and many other persons came there and rescued the complainant. The incident is. alleged to have taken place at about 8.30 p.m. 3. On the basis of the aforesaid report, a case under Sections 332, 334 and 34 IPC was registered and after completion of investigation, the police submitted a charge sheet in the court, concerned. Charges were framed against the accused persons which were denied by them. The learned trial Court recorded the evidence and after hearing the parties passed the impugned judgment. 4. Charges were framed against the accused persons which were denied by them. The learned trial Court recorded the evidence and after hearing the parties passed the impugned judgment. 4. Heard learned counsel for the parties and perused the entire record. 5. Learned counsel for the appellants submits that in this case the accused appellants have not been named in the F.I.R. and the informant merely stated the name of the appellant's father and further stated that the accused appellants are known to him by faces. Learned counsel, therefore, submitted that in the absence of any test identification parade, no reliance can be placed on the testimony of the informant because the identity of the accused persons becomes doubtful. Learned counsel further submits that from the allegation made in the F.I.R. & the statement of the prosecution witnesses it is clear that the accused appellants only engaged themselves, if at all, in a scuffle with injured Bajrang Singh. They had no intention to cause any hurt, much less a grievous hurt to Bajrang Singh (PW-3). The accused were admittedly not armed when they are alleged to have gone to Chowki in the evening. Even PW-7, Banji Singh, admits that the accused were enquiring the where-abouts of Kalyan and as to why Kalyan had been caught. This goes to show that the incident must have taken place at the spur of the moment which resulted into a scuffle and in such a situation it cannot be ruled out that the informant and his other companions might have attacked the accused appellants. In these circumstances, it cannot be said beyond reasonable doubt that the accused appellants had any intention to cause grievous injury or to any offence under Section 332 IPC or for that matter any other offence. 6. In this case it has not been proved that the informant sustained any grievous injury because in the injury report the doctor who examined the injured -did not state any injury as grievous rather the opinion of the Radiologist was sought, learned counsel further added. The learned trial Court, in its judgment, observed that in this case X-ray report has not been produced by the prosecution because the same has been stolen, so in the absence of any report of radiologist it cannot be said with certainty that injured sustained any grievous injury. 7. The learned trial Court, in its judgment, observed that in this case X-ray report has not been produced by the prosecution because the same has been stolen, so in the absence of any report of radiologist it cannot be said with certainty that injured sustained any grievous injury. 7. Learned Public Prosecutor, on the other hand, submits that the informant in the report has specifically mentioned the name of the father of appellants and stated that the accused appellants were known to him by faces. In these circumstances, no necessity was there to held the test identification parade. Learned Public Prosecutor further submits that the learned trial Court appreciated the entire evidence of the prosecution and has given a reasoned judgment, so no interference is possible in this appeal. 8. As stated above, the name of the accused appellants have not been mentioned in the FIR and only the name of their father have been mentioned in the F.I.R. In the report, the informant itself stated that the accused appellants are known to him by faces and the accused appellants have been identified by the informant in the Court at the time of his statement. 9. A look at the F.I.R. shows that the names of the accused appellants have not been mentioned in the F.I.R. & only their father's name have been mentioned. The informant himself stated that the accused appellants are known to him by faces. In such a situation, I am of the view that no identification parade was necessary. In a number of cases this Court as well as the Supreme Court of India observed that in the absence of any test identification pad identification of the accused in Court is not of material and no reliance can be placed on such identification. 10. As per the allegation made in the F.I.R. it is abundantly clear that scuffle took place in between the accused appellants and the informant and his other companions, so it cannot be ruled out that the injured and his other companions could have tried to assault the accused appellants and in that situation the accused appellants were well within their right to exercise the right of private defence. Conviction under Section 333 IPC is possible only when a person voluntarily causes grievous hurt to any person being a public servant, in the discharged of his duty as such public servant or with intent to prevent from discharging his duty, so looking to the ingredients of the offence of Section 333 IPC, it was obligatory on the part of the prosecution to have proved that the injured person w..s discharging his duties and Le was the Government servant. In the ins,-ant case, nor_e of the witness even the informant leave nowhere deposed or claimed that informant was discharging his official duty. The occurrence is alleged to have taken place at the residence of the informant, so it was necessary for the informant to have deposed something about discharging of his official duty at his residence. Moreover, a person can be convicted under Section 333 1PC only when a grievous injury is caused. 11. As per the allegation of the prosecution, the informant sustained grievous injury on his ring finger but X-ray plates have not been produced by the ,prosecution and the opinion of the radiologist is also not available on record, so in the absence of X-ray report it cannot be said with certainty that the injured sustained any grievous injury. In view of these circumstances, the conviction of the appellants under Section 333 IPC becomes bad. 12. Moreover, a perusal of the statements of the prosecution witnesses shows that there is no evidence so as to say that the accused appellants or any one of them caused injury to Bajrang Singh. There is inconsistency in prosecution witnesses that who caused grievous hurt. According to PW-7 (Banji Singh), it was Bhagirath who gave a beating to Bajrang Singh with his hands whereas other witnesses implicate both the accused appellants. PW-7 further admits, in his cross-examination, that there was one more person who took part in the scuffle, but he was not named by this witness in his statement recorded under Section 161 Cr. According to PW-7 (Banji Singh), it was Bhagirath who gave a beating to Bajrang Singh with his hands whereas other witnesses implicate both the accused appellants. PW-7 further admits, in his cross-examination, that there was one more person who took part in the scuffle, but he was not named by this witness in his statement recorded under Section 161 Cr. P.C., so looking to the nature of the evidence it cannot therefore be said that accused appellants or any one of them caused injury to Bajrang Singh and prosecution has not come with clean hands and has suppressed the real incident as is evident from the fact that two sans of Nanda Ram Dalai have been mentioned as accused in the report lodged by PW-3, which is in conflict with narration of the incident given by PW-7, an eye witness in the case. 13. Besides this. the learned trial Court failed to appreciate that Bhagirath did not share any common intent^on with co-accused Todiya to cause any grievous injury. Admittedly, the accused appellants were not armed with any weapon at the time of incident. In these circumstances, it cannot be assumed that accused appellant Todiya, who has been held guilty for the offence with the aid of Section 34 IPC, could have assumed that accused Bhagirath will cause a grievous injury on the person of informant. The conviction of accused appellant Bhagirath under Section 34 IPC is absolutely illegal. 14. A look at the record shows that there is serious inconsistency and infirmity in the statement of prosecution witnesses about the genesis of the offence and the purpose/object of the visit of accused appellants to the Chowki in the evening of 26th February, 1981. PW-7, Bhagirath, admits that the accused appellants had come to enquire about the whereabouts of Kalyan and further to enquire as to why Kalyan has been caught. It has not been proved by the prosecution that the appellants were aware of the fact that same case has been registered against Kalyan and his axe has been seized by the Forest Guard. In these circumstances hurt, if at all. caused by the accused appellants to Bajrang Singh cannot be said to be in consequence of anything done by Bajrang Singh in the 1wful discharge of his duty as public servant. In these circumstances hurt, if at all. caused by the accused appellants to Bajrang Singh cannot be said to be in consequence of anything done by Bajrang Singh in the 1wful discharge of his duty as public servant. There is nothing on record to show that the accused appellants were interested in or related to Kalyan. In these circumstances, there was no occasion for the accused appellants for involving themselves in the scuffle with the injured. The learned trial Court convicted the accused appellants on the ground hat the axe was rightly seized by the Forest Guard in the discharge of their official duty. so this subsequent incident for which the accused appellants are convicted. can also be held that occurrence took place at the time when the informant & his other companions were discharging their official duties. 15. In this view of the matter. I am of the opinion that the approach of The learned trial Court is not correct and it was a. binding duty of the prosecution to have proved that en the date of incident the informant and his other companions were discharging their official duty. Moreover, entering into the. scuffle with the accused appellants as is. admitted case of the prosecution, cannot in any way be held to bean official duty rather it can be said that the informant and his.companions misused their official capacity 16. In view of the foregoing discussion, is my opinion, the prosecution has utterly failed to prove the guilt against the accused appellants, beyond reasonable doubt, so this appeal is, therefore, allowed. The order of the learned Additional: Sessions Judge dated 1-8-1983 is., therefore, set aside. and. the accused appellants, are acquitted from the charges Levelled against thereAppeal Allowed. *******