JUDGMENT 1. The appellants along with others were tried by the learned trial Court u/S. 148, 333/149 IPC. The learned Court convicted the appellants u/S. 148, 333/149 IPC. They were sentenced to 1 year R.I. each u/S. 148 IPC and 3 years R.I. each u/S. 333/149 IPC. Feeling aggrieved they have preferred this appeal. 2. The facts leading to the appeal are that on 23.7.87 PW 4 Laxminarain Sharma who was then Vanpal, Bamori Range and PW 5 Vishnucharan Khare, Forest Guard, had gone to village Tuiakheda to serve notices on the residents of that village with respect to their unauthorised occupation over the forest land 1ney reached there at about 9 a.m. PW 1 Babulal and PW 2 Mahavirsingh, who were Chowkidars, were sent by him to call the persons to whom notices were to be served. He along with Vishnucharan sat under a Mahua tree in Mohalla Kirkar. Accused Shrilal, Bhagchand, Onkar, Rambux, Harishchandra, Uda, Gopal and five others along with five ladies which included the wives of Shrilal, Onkar and Rambux reached there. Shrilal and Asharam were armed with Pharsa whereas Shrilal's wife had iron rod and other accused were armed with lathi. Shrilal attacked with Pharsa and his wife by iron bar which hit him on his left hand. The rest of them attacked with lathi. Rambux and Asharam attacked Vishnucharan Khare with Pharsa which hit him on leg. He also received injuries in his left thigh and left leg. He tried to run in order to save himself but the accused persons committed Maarpeet there as well. At the time of Maarpeet one Motilal was also there. On account of Maarpeet the notices could not be served. from the place of occurrence he was taken on hullock cart to Vishnupura where Darogaji met. He had given a report to him EX.P-6. PW 10, B,K, Chhari, the then On1cer-in-Charge of Fatehgarh was given written petition by Ranger Laxminarain and he prepared Dehati Nalish EX.P-18 at village Vishnupura itself. He sent the injured Vishnu Charan Khare and Laxmi Narain, vide memo EX.P-23 and 24 for medical examination. He reached the spot at village Tuiakheda and prepared site-plan EX.P-25 on the pointing out of Motilal. On 30.7.87 he arrested accused Gopal, Bhagchand Lalchand and Kapura vide memo EX.P-26. On 1.8.87 accused Asharam and Shrilal were arrested, vide memo EX.P-27. He recovered Pharsa from Shrilal vide memo EX.P-28. He reached the spot at village Tuiakheda and prepared site-plan EX.P-25 on the pointing out of Motilal. On 30.7.87 he arrested accused Gopal, Bhagchand Lalchand and Kapura vide memo EX.P-26. On 1.8.87 accused Asharam and Shrilal were arrested, vide memo EX.P-27. He recovered Pharsa from Shrilal vide memo EX.P-28. He recovered three notices from Laxminarain on 15.9.87 vide memo No. P-10 as well as blood-stained clothes, vide memo EX.P-2. On 26.8.87 he recovered clothes of Vishnucharan vide memo EX.P-3. He recorded statements of Laxminarain, Vishnucharan, Faridkhan Motilal and Babula1. After completing investigation charge-sheet was submitted against accused persons. All the accused persons denied the charge and alleged that they were falsely implicated on account of enmity. The prosecution examined 11 witnesses and relied upon documents EX.P-1 to P-28. The accused also examined one witness DW 1 Babulal son of Harichand. After considering the entire material on record and hearing parties the learned trial Court acquitted some of the accused persons but convicted the appellants as aforesaid. Hence the appea1. 3. Learned Counsel for the appellants contended that there is no FIR in the case. It is alleged by the prosecution that an FIR was lodged by Laxmi Narain which has been claimed to be EX.P-6 but it is not the FIR if we peruse the entire evidence on record. The learned Counsel during the course of arguments drew my attention to Fx.P-19 and pointed out that in this document there is reference of an application given to the police officer but that has not been brought on record. Consequently, it is apparent that the original FIR has been suppressed. The next contention of the learned Counsel is that the prosecution has miserably failed to prove that Maarpeet had taken place when the injured persons were on duty and as such it cannot be held that an offence u/S 333 IPC was made out. 'The learned Counsel also referred to statements of witnesses and pointed out that there are improvements in the statements. Regarding PW 6 he urged that he was not listed as witness. His statement cannot be seen. The last argument of the learned Counsel is that on the same evidence some of the accused persons have been acquitted whereas the appellants have been convicted which is not permissible under the law. The order of conviction and sentence passed against the appellants is, therefore, illega1. 4. His statement cannot be seen. The last argument of the learned Counsel is that on the same evidence some of the accused persons have been acquitted whereas the appellants have been convicted which is not permissible under the law. The order of conviction and sentence passed against the appellants is, therefore, illega1. 4. The learned Counsel for the State could not render any help to the Court. It has been generally observed that the Counsel appearing for the State remains a silent spectator. On a query made by the Court, he pointed out that he is neither supplied with copy of the judgment of the trial Court nor the statements of witnesses and as such he is not in a position to render any assistance to the Court. It is rather very unfortunate. It is expected that the Counsel appearing for the State must be provided with necessary papers to assist the Court effectively. The mere physical presence of the State Counsel is of no avail. 5. The first point that needs consideration is as to whether there is any FIR on the record. The learned -Counsel for the appellant, as pointed out above, contended that there is no FIR. The statement of PW 4 Laxmi Narain, the then Vanpal, Hamori subrange, who is the chief witness and who according to the case of the prosecution had lodged the FIR is to be seen. If we go through the statement, we find that initially he narrated the occurrence and in para 5 he deposed that he had given a written report to the Darogaji which is EX.P-6. It bears his signatures. EX.P-6 shows that it is addressed to the "Nyayadhish Mahoday, Nyayaluya Guna" and not to the Station Officer. According to him he had given this document to Darogaji. If we go through the statement of PW 10 B.K. Chhari, the then Officer-in-charge of P.S. Fatehgarh, we and that he stated that on 23.7.87 the Deputy Ranger, Laxmi Narain Sharma had given him a written application at village Vishnupura which is EX.P-22. Thus, he has not said that he was given EX.P-6 as stated by Laxmi Narain himself. A perusal of EX.P-22 thus shows that it is addressed to the Officer-in-charge P.S. Fatehgarh (Guna) but unfortunately this document does not appear to have been proved in accordance with law. Thus, he has not said that he was given EX.P-6 as stated by Laxmi Narain himself. A perusal of EX.P-22 thus shows that it is addressed to the Officer-in-charge P.S. Fatehgarh (Guna) but unfortunately this document does not appear to have been proved in accordance with law. Apart from the statement of B.K. Chhari to the effect that a written statement was given to him by Deputy Ranger Laxmi Narain which is EX.P-22 there is nothing on record to show as to who had written this document and whether it bears the signatures of the scribe of Laxmi N arain. Inspite of the fact that Laxmi Narain appeared in the witness box this document was not proved by him. The mere fact that the document has been exhibited by the learned Court will not make any difference. It is the duty of the prosecution to prove the document as provided under the law. It ought to have been proved as to who had written this document or in whose writing it was written and who had signed over it. Unless the document is proved in accordance will) Section 47 of the Indian Evidence Act, it cannot be said to have been proved in accordance with law. I am, therefore, of the view that this document has not been proved. EX.P-6 with respect of which statement has been given by Laxmi Narain does not appear to have been addressed to the Station Officer P.S. Fatehgarh, rather it is addressed to Nyayadhish Mahoday, Nyayalaya Guna. How and under what circumstances this document came on record it is not clear The I.O. had not taken it in his custody. This document too does not go to show that it was endorsed to the S.O. I am, therefore, of the view that this document too cannot be said to be an FIR within the meaning of S. 154 CrPC' The I.O. PW 10 B.K. Chhari stated that on the basis of EX.P-22 he had prepared Dehati Nalish EX.P-18 at village Vishnupura itself which bears his signatures. A perusal of EX.P-18 shows that he has mentioned in this document that at village Vishnupura Vanpal Laxmi Narain gave a written application to Vishnu Charan, the details which have been mentioned therein. A perusal of EX.P-18 shows that he has mentioned in this document that at village Vishnupura Vanpal Laxmi Narain gave a written application to Vishnu Charan, the details which have been mentioned therein. It again makes the position doubtful because the words used in this document are "Laxminarain Sharmane may Vanrakshak Vishnucharan Khare Ke ek lekhi avedanpatra pesh Kiya." 'This fact has not been stated by him on oath in the witness box. Thus, the fact as to what FIR was actually lodged and what document was actually given to the officer-in-charge P.S. Fatehgarh is shorouded in mystry. From the material on record it cannot be said as to what document constitutes FIR. In this view of the matter the contention of the learned Counsel for the appellants that there is no FIR on record is not without force. 6. Having found that it has not been proved by the prosecution as to what document constitutes FIR in the case, it is now to be seen as to how far the prosecution has been able to prove its case from the evidence on record. Before going through the evidence I may also mention to what are the ingredients of the offence punishable u/S. 333/149 IPC. We must, therefore, look to the essential ingredients of this offence. Under Section 333 the prosecution is required to prove that (i) the accused voluntarily caused grievous hurt (ii) that the hurt was caused to a public servant and (iii) and the accused did cause hurt with intent to prevent or deter any of the public servant from discharging his duty. The case of the prosecution is that PW 4 Laxnli Narain who was then Vanpal, along with PW 5 Vishnucharan Khare, forest guard, and Chowkidar, ad gone to village Tuiyakheda for serving notices as the persons to whom the notices were to be served had encroached upon the forest land. In this regard, 1ere is statement of PW 4 Laxmi Narain, PW 5 Vishnucharan Khare, PW 1 Babulal and PW 2 Mahavirsingh Chowkidar. It is, however, significant to 1ention here that PW 4 Laxminarain stated that he was given notices by Vanmandal Guna from the office of the Vanmandaladhikari Guna for service He further deposed that he had made an entry that he had gone in his daily diary. It is, however, significant to 1ention here that PW 4 Laxminarain stated that he was given notices by Vanmandal Guna from the office of the Vanmandaladhikari Guna for service He further deposed that he had made an entry that he had gone in his daily diary. No document has been brought on record to show that notices had been given to him by the office of the Mandladhikari Guna for service. The daily diary in which he has stated that he had made an entry with respect to his proceeding has also not been brought on record. It was the duty of the prosecution to bring on record the documents showing that notices were given by the office of the Mandladhikari Guna to him and he had proceeded for service of those notices by producing best evidence i.e. documentary evidence which ought to have been produced. In the absence of this important piece of evidence oral testimony of witnesses can hardly be said to be sufficient to prove that he along with persons mentioned by him had gone to serve the notices as claimed by the prosecution. Unless it is proved by convincing evidence that he along with other employees had gone to the place. of occurrence in official discharge of his duty it cannot be said that the prosecution has established its case u/S. 333 IPC. It will not be out of place to mention here another important fact which has been brought on record. The case of the prosecution is that these persons had gone for serving notices and he notices could not be served. It has been stated by Laxmi Narain himself that notices could not be served on account of maarpeet. If it was so the notices must have been in his possession at that time and on the same date. According to him he met the Officer-in-charge P.S. Fatehgarh. These notices were not given to the police officer nor, they were taken in custody by him. PW 10, B.K. Chhari, I.O., in his statement stated that he took into custody the notices on 15.9.87 vide memo Ex.P-10, after about two months. It again throws a suspicion that had the notices been with him he would have handed over them to the I.O. or the I.O. ought to have taken them in custody on that very date. Agaion if we go through the statement of. It again throws a suspicion that had the notices been with him he would have handed over them to the I.O. or the I.O. ought to have taken them in custody on that very date. Agaion if we go through the statement of. PW 5 Vishnucharan Khare we find that he stated that he was given notices by Laxminarain, the Deputy Ranger, to be served on the accused persons and some notices were served and the notices on Shrilal and others were left to be served. PW 1 Babulal Chowkidar has stated that he had gone to serve notices and when he had returned after giving notices the Deputy Ranger Laxminarain and Vishnucharan Khare were unconscious this witness has been declared hostile but the other witness Mahavirsingh who was also Chowkidar has not been declared hostile. He has also stated that he had gone to serve the notices along with Babulal. Shrilal, Rambux and three other persons had been served with notices. Thus, it transpires that the story that notices were served or whether some of them were served and some of them were not served is also suspicious. I have also said earlier that the best evidence with respect to the fact that these persons had gone to serve the notices has been suppressed. I am, therefore, of the view that the prosecution has failed to prove beyond reasonable doubt its story that these persons had gone to serve the notices. 7. Even if for the sake of argument, it is taken that they had gone to serve the notices it has to be seen as to whether the occurrence had taken place at the time when they were discharging their duty with intent to prevent or deter them from discharging their duty. PW 4 Laxminarain stated that he had gone to serve notices on. the persons of Tuiyakheda who had made encroachment over the forest land. He went there on 23.7.87 at 9 a.m. along with Vishnucharan Khare. Notices were to be served on Shrilal and some persons of Kirar community. They reached Kirar Mohalla of village Tuiyakheda. The mohalla of accused persons was about half a furlong away. He had called the persons to whom notices were to be served through Chowkidars Babulal and Mahavirsing and he sat down under a Mahua tree. Notices were to be served on Shrilal and some persons of Kirar community. They reached Kirar Mohalla of village Tuiyakheda. The mohalla of accused persons was about half a furlong away. He had called the persons to whom notices were to be served through Chowkidars Babulal and Mahavirsing and he sat down under a Mahua tree. Thus, according to his own statement persons who had been sent to discharge their duty were Babulal and Mahavir Singh and not he because he remained sitting under a Mahua tree. He further stated that when he was sitting the accused persons, namely, Shrilal, Bhagchnad, Onkar, Rarnbux, Hilrishchand, Uda and Gopal and five others reached there. There were also five ladies which included the wife of Shrilal. wife of Onkar and wife of Rarnbux. Shrilal and Asharam were armed with Pharsa, Shrilal's wife with iron rod and rest with lathi. Shrilal attacked with Pharsa from the opposite side on his head and his wife attacked with iron rod which hit him on his head. 'The rest of the accused persons attacked him with lathis. Rarnbux and Asharam attacked with Pharsa on Vishnucharan's leg. He further said that he received injuries on left thigh and left leg They ran in order to save themselves but they could reach to some distance when the accused persons beat them. At the time of occurrence Motilal was present. He further stated that because of maarpeet he could not serve the notices. I may repeat at this stage that it has been shown above that the story relating to the service of the notices is suspicious and as such it cannot be accepted that even if he was beaten as claimed he was discharging his duty and was beaten in order to deter from discharging his duty. To my mind, his statement cannot be said to be sufficient under the circumstances to prove convincingly that at the time when maarpeet had taken place he was discharging his duty. 8. As far as the story that the maarpeet took place as claimed by the prosecution is concerned, I may mention that it is also not free from doubt. To my mind, his statement cannot be said to be sufficient under the circumstances to prove convincingly that at the time when maarpeet had taken place he was discharging his duty. 8. As far as the story that the maarpeet took place as claimed by the prosecution is concerned, I may mention that it is also not free from doubt. Primarily it may be mentioned that the injury report EX.P-24A of Laxminarain and EX.P-23A of Vishnucharan Khare show that the Doctor had found lacerated wound and one contusion on the person of Laxminarain and 4 contusions, two abrasions and one lacerated wound on the person of Vishnu Charan Khare. The Doctor had opined that all the injuries of Laxminarain were caused by hard and blunt object within 24 hours. Laxminarain was examined on 23.7.87 at 6.45 p.m. whereas Vishnu Charan Khare was examined on the same date at 6.30 p.m. His injuries were also opined to have been caused by hard and blunt object within 24 hours. The occurrence had taken place on 23.7.87 at 10 p.m. PW 11, Dr. A.K.M. Shrivastava, who had medically examined these persons has categorically stated that the injuries were caused by hard and blunt object. As far as Laxminarain is concerned he deposed that injuries could be caused by fall if the person falls while running whereas the injuries of Vishnucharan could not be caused by one fall but could be caused if a person falls several time with his back downwards. It is important to mention that according to the case of the prosecution Shrilal and Asharam were armed with Pharsa and they attacked with Pharsa and caused injuries to Laxmi Narain and Vishnucharan whereas Shrilal's wife attacked with iron rod and rest with I a this. It is common knowledge that an instrument is normally used in the manner in which it is normally used unless shown otherwise. I have already said earlier that there is no FIR on record. The document claimed to be FIR by the prosecution i.e. EX.P-18 which is Dehati Nalish and EX.P-18 i.e. the alleged FIR can hardly be said of be FIR. Even if they are seen, it transpires that in these documents it has nowhere been mentioned that Pharsa was used from the opposite side. The document claimed to be FIR by the prosecution i.e. EX.P-18 which is Dehati Nalish and EX.P-18 i.e. the alleged FIR can hardly be said of be FIR. Even if they are seen, it transpires that in these documents it has nowhere been mentioned that Pharsa was used from the opposite side. A definite improvement has been made in his statement by PW 4 Laxminarain when he stated that Shrilal had attacked him with Pharsa from the opposite side. It appears that he forgot to say that the Pharsa was used from opposite side while attacking Vishnucharan Khare. His statement that the Pharsa was used from the opposite side by Shrilal cannot be accepted as it is clearly an improvement and an after-thought, in order to bring the statement in line with the nature of the injuries found by the Doctor. I am, therefore, of the view that he has not stated the truth. It has been mentioned above that all the injuries of two injured persons were opined by the Doctor to have been caused by hard and blunt object. Thus, the use of Pharsa is completely ruled out as no incised wound was found on the person of these two injured. In his cross-examination Laxminarain stated that he could not say as to how many lat-his were plied but he specifically stated that 4 or 6 blows were given by each one of the accused. All of them attacked together. Several persons had been named by him to have taken part in the maarpeet. If 4 or 6 lathi blows were given by each one of the assailants if it was a fact, he must have received a large number of injuries but the injury report shows that he had received only 7 injuries but no incised wound was found. It goes to suggest that either he has given an exaggerated version or he has not spoken the truth. PW 5 Vishnucharan gave a somewhat different version when he stated that Babulal and Faridhkan were sent to call Shrilal but they did not come. First of all 5 or 6 ladies reached there and Rambux's wife gave a sariya blow on the head of the Deputy Ranger. It contradicts PW 4 Laxminarain who stated that sariya blow was given by Shrilal's wife. Vishnu Charan further stated that thereafter Asharam, Uda and Onkar reached there. First of all 5 or 6 ladies reached there and Rambux's wife gave a sariya blow on the head of the Deputy Ranger. It contradicts PW 4 Laxminarain who stated that sariya blow was given by Shrilal's wife. Vishnu Charan further stated that thereafter Asharam, Uda and Onkar reached there. There were 7 or 8 persons and started beating him. As soon as they came Asharam gave a Pharsa blow which hit him on his leg. He immediately ran and reached near the river. All the accused persons reached there and beat. His left hand was broken. He was severely injured (maranasann). He also stated that Kirar people brought him and Laxminarain was under a Mahua tree. He further stated that Kirars did not do maarpeet except Rambux. He was beaten near the river and he had become unconscious at that time. One danda blow hit him under the Mahua tree and then he ran towards river. This is in contradiction with the statement of Laxminarain. He stated that he too was beaten under Mahua tree. PW 6 Gopilal also stated that the accused persons had beaten the Deputy Ranger Laxminarain and Forest Guard Vishnucharan Khare. Vishnucharan Khare and Laxminarain became unconscious. He had gone to village Tuiyakheda along with forest officials. A perusal of the statement of PW 2 shows that he has categorically stated that when he and Babulal returned Laxminarain and Vishnucharan Khare were unconscious. Motilal and Bhansingh were seen there. None of the accused persons were seen. Laxminarain and Vishnucharan were taken on bullock cart to Vishnupura. He had not been declared hostile. A similar statement has been given by PW 1 Babulal has been declared hositle. A suggestion was thrown to the witness in cross examination to the effect that they were beaten by pardis and were not beaten by the accused persons. But this suffusion has been denied by PW 4 Laxmi Narain. In reply to a question PW 5 Vishnucharan stated that it was wrong that he was beaten by pardis and the accused persons were falsely implicated as they had made encroachments. DW 1 Babulal son of Harishand, who has been examined by defence. stated that Forest Guard Vishnucharan and Ranger Laxminarain had gone to village Tuiyakheda. They had asked pardis as to how they were killing animals and birds and they said that it was for their food. DW 1 Babulal son of Harishand, who has been examined by defence. stated that Forest Guard Vishnucharan and Ranger Laxminarain had gone to village Tuiyakheda. They had asked pardis as to how they were killing animals and birds and they said that it was for their food. These persons stopped them and abused them. They were 15 or 20 in number. They had beaten Laxminarain and Vishnucharan. They ran and fell in nala where there were stones. The Ranger cried. Then he and other village people ran and intervened whereupon pardis escaped. Laxminarain and Vishnu Charan were taken to Vishnupura as they were not in a position to walk. Nothing could be extracted from him as to why he appeared for the defence or why his testimony be not accepted. 'The statement given by him appears to be plausible and is in conformity with the defence version. It is settled law that the defence is not required to prove its case to the hilt as is necessary for the prosecution. It has only to show the probability. I have already said above that the story given by the prosecution witnesses mentioned that the injured persons were also beaten by Pharsa is not corroborated by the medical evidence as no incised injury was found on the body of the two injured persons. Thus. it appears probable that injured persons might have been beaten by some other persons in other fashion. In any case, it creates doubt about prosecution story. I have also mentioned above that there is no FIR on record and the alleged FIR cannot be said to be an FIR. Had there been an FIR it would have corroborated the prosecution story but that is lacking. I may also add that the defence is also hadicapped in absence of FIR because had there been a valid FIR the defence would have an opportunity of contradicting the maker. Taking into consideration all these facts I agree with the learned Counsel for the appellants that the prosecution has not been able to prove its case that the accused persons him caused injury to two injured. Of course, it is established that the injured persons did receive the injuries but unless it is established to the hilt that the accused rely persons caused injuries and that too in order to deter the public servants in and discharge of their duty. Of course, it is established that the injured persons did receive the injuries but unless it is established to the hilt that the accused rely persons caused injuries and that too in order to deter the public servants in and discharge of their duty. the prosecution cannot succeed. I may also add here that t do the learned Court below on the basis of some evidence acquitted some of the persons and convicted the appellants. Under these circumstances unless the and case of some of accused persons is clearly distinguishable from those who have t of been convicted. It cannot be said that some of them can be acquitted while some of them can be convicted on the same evidence. Consequently the order rain of conviction and sentence recorded by the learned Court below has to be set rain aside and the appeal has to be allowed. 9. The appeal is accordingly allowed. The order of conviction and sentence ally is set aside. The appellants are on bail. They need not surrender. Their bail hare bonds are cancelled and sureties discharged.