Judgment Virender Singh, J. 1. Jaggu Singh alias Jagbir stands convicted under Sections 353 and 333 IPC vide impugned judgment of learned Additional Sessions Judge, Gurgaon dated 31.7.1991 and has been sentenced as follows : U/S 333/34 IPC To undergo RI for 3 years and to pay a fine of Rs. 1,000/-. U/S 353 IPC To undergo RI for six months and to pay a fine of Rs. 500/-. In default of payment of fine, he was to suffer further RI for six months. 2 However, both the substantive sentences were ordered to run concurrently. Out of the fine amount a sum of Rs. 1000/- was directed to be paid as compensation to injured Tej Ram, complainant. 3. The charge against the appellant and his son Sunil alias Handu was that both of them on 9.6.1989 in the area of Wazirpur assaulted Head Constable Tej Ram, a public servant and prevented him from going to police station Farrukh Nagar in the execution of his duty as public servant and caused grievous hurt to him. 4. Sunil has since been acquitted. However, no appeal has been filed against his acquittal. 5. Briefly, the case of the prosecution is that on 9.6.1989 the complainant-HC Tej Ram alongwith ASI Jagdish and Constable Bani Dhir had come to Civil Hospital Gurgaon to record the statement of one Lakhmi, admitted as an injured in the said hospital. She was, however, not found in the said hospital and as such all the police officials started back for Farukh Nagar. They had taken lift in a truck, from which they alighted on the turning of village Wazirpur, where they took meals at the Dhaba of the appellant. The payment was made for the meals. Thereafter, the police officials kept sitting on the cot at the said hotel as they were waiting for some vehicle for Farukh Nagar. It is then alleged that the appellant and his two sons, whom HC Tej Ram knew earlier, came to them and started abusing them, saying that they were sitting even after taking meals and should vacate the cots as the other customers (drivers) had come for taking their meals. This resulted into an altercation. Sunil accused allegedly brought a lathi from the Dhaba and other four persons, whom the complainant did not know, also accompanied him. This resulted into an altercation. Sunil accused allegedly brought a lathi from the Dhaba and other four persons, whom the complainant did not know, also accompanied him. Sunil gave a lathi blow on the right arm of the complainant and another blow on his left eye brow. Meanwhile, the appellant and Handu also brought lathi. Handu gave three lathi blows on the back of the complainant, whereas Jaggu gave a lathi blow on the left arm and below left elbow of the complainant. The police officials got themselves rescued with great difficulty and went to Farukh Nagar on foot. The complainant was taken to Civil Hospital, Gurgaon, where he was examined by Dr. G.S. Sekhawat (PW5) on 10.6.1991, who found 8 injuries in the shape of abrasions and contusions on his body. For certain injuries, x-ray was also advised. 6. As per the statement of Dr. B.B. Aggarwal (PW8), who had radiologically examined Tej Ram on 10.6.1989, there was fracture of right humerous bone. Besides this evidence, the persecution has examined seven witnesses. 7. The plea of the appellant as emerges from his statement under Section 313 Cr. P.C. is that on the day of occurrence the police party had come to his dhaba in extremely drunken condition and ordered him to supply food and after taking the food, the police officials instead of making the payment got enraged and started abusing him and his other employees; that at that time other customers were also present; that an objection was raised with regard to the behaviour of the police officials; that one of his servants gave fist and slap blows to HC Tej Ram complainant and thereafter the police officials fled away from the scene and in that process, they might have sustained injuries; that Sunil son of the appellant, who is also known as Handu, was not present at the spot as he had gone to Hathras to meet his maternal uncle and had fallen ill there, but has been falsely implicated. 8. In defence some evidence was led by Sunil to prove his alibi. 9. After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellant. As stated above, Sunil stands acquitted. Hence this appeal. 10. Assailing the conviction qua appellant Jaggu, Mr. 8. In defence some evidence was led by Sunil to prove his alibi. 9. After appreciating the entire evidence, the learned trial Court has convicted and sentenced the appellant. As stated above, Sunil stands acquitted. Hence this appeal. 10. Assailing the conviction qua appellant Jaggu, Mr. Jain contends that even if all the allegations are taken to be true, the ingredients of sections 353 and 333 IPC are not made out. Dewlling upon his argument, the learned counsel contends that Section 353 IPC talks about an assault or criminal force to deter a public servant from discharge of his duty and in the instant case, admittedly as per the allegations, it is HC Tej Ram, the complainant himself had gone to the Dhaba alongwith other police officials after investigating some other case, in which they gone to the hospital. They had got down from the truck near the Dhaba of the appellant while returning and took their meals. It is thereafter that some wordy duel ensued as the police officials were taking rest on the cot, to which the appellant objected to. This all is indicative of the fact that there was no intention on the part of the appellant to prevent or deter the public servant from discharging his duty. According to the learned counsel, once Section 353 IPC is not attracted in this case, Section 333 IPC would also fall being interconnected, as it talks about gravity of the offence only. In support of his contention, the learned counsel has placed reliance upon the decision rendered in Rajinder Dutt v. State of Haryana, 1993 Criminal Law Journal 1025. 11. The learned counsel then contends that the defence set up by the appellant is most probable but the same has not been taken into account by the learned trial Court. All the infirmities, if taken collectively, would speak volumes of false implication of the appellant in this case and as such he deserves acquittal. 12. The learned counsel then contends that once the charges under Sections 353 and 333 IPC are not proved, at the most the offence qua the present appellant would fall within the ambit of Section 323 IPC only. 12. The learned counsel then contends that once the charges under Sections 353 and 333 IPC are not proved, at the most the offence qua the present appellant would fall within the ambit of Section 323 IPC only. Advancing his arguments, the learned counsel contends that as per the prosecution case, the injury on the right hand, which ultimately proved to be grievous attracting Section 325 IPC, is attributed to Sunil (since acquitted) and the role attributed to the present appellant is of giving a lathi blow on the left arm and below the left elbow of the complainant. As per the statement of the radiologist PW-8 B.B. Aggarwal, there was a fracture of the right humerus bone and the said injury is not attributed to the appellant and he, thus, at the most can be liable for the offence punishable under Section 323 IPC. 13. On the basis of the aforesaid submissions, the learned counsel contends that the appellant deserves acquittal or at the most he can be convicted under Section 323 IPC, for which he deserves a lenient view with regard to the quantum of sentence, may be by releasing him on probation. 14. Repudiating the submissions made on behalf of the appellant, Mr. Dhankar submits that although Sunil, co-accused has been acquitted by the trial Court, and no appeal has been filed by the State against his acquittal, yet the case against the present appellant is proved to the hilt as there is cogent evidence on the file that he had assaulted HC Tej Ram, complainant by giving him multiple injuries and as such he cannot escape from his liability. After giving thoughtful considerations to the rival contentions of either side, I am of the view that the charge under section 353/333 IPC is not proved in this case. The provisions of Section 353 IPC read as under : "353. Assault or criminal force to deter public servant from discharge of his duty - Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished ............." 15. In the instant case, as per the allegations of the prosecution and the evidence adduced, HC Tej Ram had proceeded to the hospital for recording the statement of some lady. Although the clinching evidence has not come on record to that effect as the said lady was not found present in the hospital, yet even after giving some lititude to the prosecution and believing this part to be true, it cannot be said that HC Tej Ram, who himself along with the other police constables had gone to the Dhaba of the appellant for taking meals was assaulted during the execution of his duties as a public servant. The police officials of their own had chosen to take their meals at the Dhaba of the appellant. Once they left the hospital, the nexus with the discharge of their official duty finished then and there. Under these circumstances, it cannot be said that a police official has been assaulted during the discharge of his official duties. 16. All the facts if seen collectively go to show that when the police officials had not got up from the cots, where they were taking rest after taking meals, an altercation ensued between them and the appellant, which ultimately resulted in causing of injuries to the complainant. This can at the most be said to be an incident flaring all of a sudden, which is not at all covered by the provisions of Section 353 IPC. In my considered view, legally Section 353 IPC or as a matter of fact Section 333 IPC, which is an offshoot of the main offence, depending upon the nature of injury, are not attracted in this case. 17. Consequently, the appellant is acquitted of the charge under Sections 353 and 333 IPC. 18. However, the contention of Mr. Jain that the appellant would at the most be liable for causing simple injuries to the complainant, is not appealing. HC Tej Ram has received as many as 8 injuries, as is evident from the deposition of Dr. G.S. Shekhawat (PW-5). For four of the injuries, X-ray was advised. As per the statement of Dr. B.B. Aggarwal Radiologist, there was fracture of right humerus bone. This fracture relates to injury No. 1 which is on the posterior aspect of right arm. G.S. Shekhawat (PW-5). For four of the injuries, X-ray was advised. As per the statement of Dr. B.B. Aggarwal Radiologist, there was fracture of right humerus bone. This fracture relates to injury No. 1 which is on the posterior aspect of right arm. No doubt, this injury is attributed to Sunil (since acquitted), but ASI Tej Ram has categorically deposed that he was given one lathi blow on the right arm and the second blow on the eye brow. He attributed the other lathi blow to Sunil, which landed on his left hand. He has not been confronted with his previous statement on oath. Tej Ram complainant has then stated that the other persons from the side of the appellant had also assembled there, who started grappling with the other police officials, however, he could not identify them. This statement appears to be quite natural. The other two sons of the appellant are named as Sunil and Handu. To that extent, the statement of Tej Ram is incorrect. In fact Sunil is known as Handu, as is clear from the entire evidence. But he has since been acquitted by the trial Court on the plea of alibi. Taking the facts in its entirety, there can be no doubt that the appellant has assaulted Tej Ram complainant with lathi blows and caused injuries to him, out of which one injury turned out to be grievous, attracting Section 325 IPC. He is, thus, liable to be convicted for the said offence. 19. Resultantly, the appellant is convicted under Section 325 IPC. 20. So far as quantum of sentence is concerned, in my view, the appellant deserves a lenient view. The occurrence relates to the year 1989. By now the appellant has faced the ordeal of protracted trial for about 15 years. He is not a previous convict. An opportunity should be given to him to be a good citizen. On the other hand, this Court cannot lose sight of the peculiar facts, in which the instant occurrence ensued. This all appears to be a sudden affair. The ends of justice would be adequately met if the appellant is released on probation instead of awarding him the substantive sentence. Ordered accordingly. 21. In view of the above, I direct that the appellant shall execute a bond with one surety to the extent of Rs. This all appears to be a sudden affair. The ends of justice would be adequately met if the appellant is released on probation instead of awarding him the substantive sentence. Ordered accordingly. 21. In view of the above, I direct that the appellant shall execute a bond with one surety to the extent of Rs. 10,000/- for period of one year, during which he shall be of good behaviour and keep peace. It is, however, made clear that the bond(s) shall be without supervision. The bonds shall be executed before the trial Court within two months from the date of receipt of a certified copy of this judgment. 22. The fine imposed by the trial Court on two counts to the extent of Rs. 1500/- shall now be converted into costs of proceedings under section 5(1)(b) of the Probation of Offenders Act. I further direct the appellant to deposit Rs. 5,000/- before the trial Court at the time of furnishing the bonds. The same shall be disbursed to Tej Ram complainant as compensation under Section 5(1)(a) of the Act. In default of payment of the aforesaid amount of Rs. 5,000/-. the appellant shall suffer the entire substantive sentence, as already awarded by the trial Court. 23. With the modification in conviction and sentence, as indicated above, the appeal stands partly allowed.