Judgment ( 1. ) THIS appeal has been preferred under Section 374 (2)Cr. P. C. has been preferred being aggrieved by the judgment, finding and sentence dated 25. 07. 1994 passed by First Additional Sessions Judge, Shahdol in ST. No. 68/ 93, whereby the appellant has been convicted under Section 333 of I. P. C. and sentenced to R. I. for 3 years with fine of Rs. 100/- in default of payment of fine to further undergo S. I. for 1 month. ( 2. ) THE prosecution case in short is that on 04. 11. 1992 at 4:30 p. m. complainant basantilal was Secretary of Gram Panchayat, Bichhiya. He was standing at bichhiya Bus Stand near Betel shop of Bhola along with peon Babulal and was calling the members of Panchayat to convene the meeting. Appellant came there along with two other persons and asked him to include his name in the list of below Poverty Line but he stated to do so on Saturday when the next meeting shall be called. On this all the three accused persons grappled him and this appellant kemalee inflicted pump (used for filling the air in the cycle) on account of which he sustained injuries on his left leg. The report was lodged at police station Amlai on the same day wherein Crime No. 587/92 under Sections 353, 294, 332 read with Section 34 of I. P. C. was registered. The complainant Basantilal was sent for medical examination. His medical examination was done on the same day and injuries were found as mentioned in medical report Ex. P/5. X-ray was also done wherein the fracture of tibia and fibula lower 1/3rd (left) leg was found. X-ray report and x-ray plate were produced. On the x-ray report the offence under section 333 of I. P. C. was added. Map was prepared. Statements of the witnesses were recorded. Accused persons were arrested. After completing the investigation, chargesheet was filed in the Court of J. M. F. C. , Budhar who committed the case to the Sessions Court for trial. ( 3. ) ACCUSED persons were charged under Section 294, 333 and 506 B of I. P. C. They abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as many as 13 witnesses whereas the appellants also examined 2 witnesses in their defence. ( 3. ) ACCUSED persons were charged under Section 294, 333 and 506 B of I. P. C. They abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated. Prosecution examined as many as 13 witnesses whereas the appellants also examined 2 witnesses in their defence. After appreciating the evidence trial Court acquitted Dadi and Kaushal Prasad Rao from all the charges levelled against them and this appellant was also acquitted from the charge under sections 294 and 506-B of I. P. C. but found guilty under Section 333 of I. P. C. and sentenced thereto as stated hereinabove in para no. 1 of this judgment. Being aggrieved by the judgment, finding and sentence, instant appeal has been preferred on the grounds mentioned in the memo of appeal. ( 4. ) SHRI D. N. Shukla, Advocate was engaged by the appellant as his counsel but he did not appear to argue the case on the date of hearing on 12/08/2008. The appeal was pending since 1994. Therefore, Shri A. S. Gaur has been appointed from the panel of the High Court Legal Aid Services Committee to argue the case on behalf of the appellants so that the appeal may be disposed of expeditiously. ( 5. ) SHRI A. S. Gaur, learned counsel for the appellant submitted that the trial court has not appreciated the evidence in proper perspective. There are material contradictions and omissions in the statement of Basantilal. Other independent witnesses have not supported the prosecution case. It has not been proved that complainant Basant Lal was public servant and discharging the public functions at that time. The finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. ( 6. ) ON the other hand, Shri G. P. Singh, learned Dy. G. A. appearing on behalf of respondent/state supported the impugned judgment, finding and sentence mainly contending that prosecution has proved the case beyond reasonable doubt against the appellant hence it does not call for any interference. ( 7. ) THE main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under Section 333 of I. P. C. ? ( 8. ) BASANT Lal (PW-12) is the injured person and star witness to this case. ( 7. ) THE main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under Section 333 of I. P. C. ? ( 8. ) BASANT Lal (PW-12) is the injured person and star witness to this case. He has deposed that appellant asked to include his name in the list of Below Poverty line to which he declined. On this he abused him and inflicted pump blow at his left leg on account of which he sustained fracture. He lodged the report Ex. P/12 which was recorded by Amar Bahadur Singh (PW-11 ). His medical was done and x-ray was also taken. ( 9. ) THIS witness in the cross-examination has admitted that the place of occurrence is in front of the Betel shop of Bhola. On that day he also convened the meeting of Panchayat but it could not be held. He has been contradicted on some facts from police report Ex. P/12 and police statement D/1. ( 10. ) ACCORDING to this witness this appellant inflicted pump blow at his left leg on account of which he sustained injury. ( 11. ) PROSECUTION examined Bhola Prasad (PW-2), Thakurdeen (PW-6), Baijnath (PW-7), Ramprasad (PW-8) and Babulal (PW-9) but none of the alleged eyewitnesses have supported the version of complainant Basant Lal. ( 12. ) DR. P. K. Jain (PW-4) examined Basant Lal and found the following injuries on his person: (i) Lacerated wound on lower part of left leg " x ". (ii) Lacerated wound at right cheek 3/4". x " muscle deep. (iii) Bruise 2" x " at right side back of chest scapular region. According to his opinion injury no. 2 and 3 were simple in nature and he was referred to District Hospital for ascertaining the nature of injury No. 1. Thus injuries were caused by hard and blunt object within 24 hours of the examination. Medical report is Ex. P/5. In the cross examination he has stated that the injury no. 1 may be caused by pump. ( 13. ) THUS, from the evidence of Dr. P. K. Jain (PW-4) it is established that the injuries were found on the person of victim Basant Lal. ( 14. ) DR. Medical report is Ex. P/5. In the cross examination he has stated that the injury no. 1 may be caused by pump. ( 13. ) THUS, from the evidence of Dr. P. K. Jain (PW-4) it is established that the injuries were found on the person of victim Basant Lal. ( 14. ) DR. M. K. Tiwari (PW-10) took x-ray of Basant Lal and found that there was fracture in tibia and fibula lower 1/3rd (left) leg. He has given the x-ray report Ex. P-11 and x-ray plate Ex. P-12. ( 15. ) THUS, from the evidence of M. K. Tiwari (PW-10) it is established that there was fracture in tibia and fibula (left) leg as stated hereinabove. ( 16. ) SHANKARDAYAL (PW-3) prepared the map Ex. P-3. The place of incident was at the tea and betel shop of Bhola Prasad (PW-2) He has also seized the pump vide seizure memo Ex. P-6. ( 17. ) IT is evident from the evidence by the prosecution that complainant Basant lal, Secretary of Gram Panchayat, Bichhiya was not discharging the public functions at that time. He himself has admitted that Panchayat meeting was convened on that day but no Panchayat was held. He was sitting in the Betel shop of Bhola Prasad. Since he was not doing any public function at that time, therefore, there was no question from preventing or deterring him from exercise of such function. Therefore, the finding of the trial court that he was discharging the public function does not prima facie appears to be correct. However, the complainant Basant Lal has clearly stated that appellant inflicted pump blow at his left leg and caused injury. No doubt other eye-witnesses have not supported the prosecution case. But in such cases the evidence of injured person is very material. The report was lodged promptly and his version has been medically corroborated. The fracture of tibia and fibula was found in x-ray report, therefore, he sustained the fracture on account of injuries caused by the appellant. ( 18. ) THE defence of the appellant is that he demanded Rs. 500/- for including his name in persons of list of Below Poverty Line and he was in drunken condition and he fell down and sustained the injuries. Puran (DW-1) and Vishweshwar singh (DW-2) have been examined in support of the defence. ( 18. ) THE defence of the appellant is that he demanded Rs. 500/- for including his name in persons of list of Below Poverty Line and he was in drunken condition and he fell down and sustained the injuries. Puran (DW-1) and Vishweshwar singh (DW-2) have been examined in support of the defence. But the defence is not tenable for the simple reason that Puran has stated that complainant sustained injury in the head but there is no injury found on the head. Likewise Vishweshwar has given evidence that complainant sustained the injuries in the entire body. It appears that these witnesses are not giving the correct statement. Moreover they have never come up before the Investigating Officer to say that the complainant sustained injury by fall. Thus their evidence is unreliable and trial Court has rightly rejected their version. ( 19. ) ON the foregoing discussion, it can be said that prosecution has proved the offence under Section 325 of I. P. C. instead Section 333 of I. P. C. Thus the appellant is held guilty under Section 325 of I. P. C. ( 20. ) CONSEQUENTLY, the appeal is partly allowed. The conviction and sentence passed under Section 333 is hereby set aside instead the appellant is convicted under Section 325 of I. P. C. and sentenced to R. I. for 1 year. The sentence of fine as imposed by trial Court is hereby maintained. The appellant is on bail. His bail bonds are cancelled. He be directed to surrender before C. J. M. , Shahdol on 05. 12. 2008 for serving out the remaining part of the sentence. Appeal partly allowed.