JUDGMENT 1. - Heard. 2. The instant revision petition has been filed by the accused-petitioner against the appellate order dated 30.3.2007 passed by learned Additional Sessions Judge, Gulabpura, District Bhilwara in Criminal Appeal No. 42/2006 by which he has held the accused-petitioner guilty for the offence under Section 353 I.P.C. and has sentenced him to undergo one year's R.I. and a fine of Rs. 5,000/- while modifying the order dated 18.11.2006 passed by learned Additional Chief Judicial Magistrate, Gulabpura,. District Bhilwara in Criminal Regular Case No. 151/2003 (State v. Gajendra Pal Singh) , by which the learned Magistrate held the accused-petitioner guilty for the offence under Section 352 I.P.C. and granted him benefit of Section-4(1) of the Probation of Offenders Act and directed to deposit Rs. 500/- as cost of prosecution charges. 3. By way of this revision petition the accused-petitioner has assailed the validity and correctness of impugned appellate Court judgment and order as well as the order of the trial Court. 4. The brief facts of the case which are necessary for the just disposal of the revision are that on 16.4.2003 Dr. Jitendra Singh lodged a report at Police Station Gulabpura alleging inter alia that while he was discharging his official duty at Government Animal Hospital, Hurda, the accused-petitioner interrupted and obstructed him in discharging his duty. He further alleged in the report that the accused abused him and assaulted him. On the basis of aforesaid report, a case vide F.I.R. No. 78/2003 was registered for the offence under Sections 186 and 353 I.P.C. and the investigation commenced. Later on charge-sheet was filed under the aforesaid Sections. It is revealed from the record that after completion of trial, the learned Magistrate vide his judgment and order dated 18.11.2006 did not find proved the charges levelled against the accused-petitioner for the offence under Sections 186 and 353 I.P.C. thus acquitting the accused-petitioner from the charges of Sections 353 and 186 I.P.C., but held the accused-petitioner guilty for offence under Section 352 I.P.C. and granted him the benefit of Section 4(1) of the Probation of Offenders Act, as stated aforesaid. 5. Being aggrieved by the judgment holding him guilty for offence under Section 352 I.P.C., the accused preferred an appeal before the learned Sessions Court. 5. Being aggrieved by the judgment holding him guilty for offence under Section 352 I.P.C., the accused preferred an appeal before the learned Sessions Court. It is pertinent to note that no appeal or revision was filed by the State or by the complainant against the order of acquittal from the charges of Sections 186 and 353 I.P.C. which were levelled against the accused-petitioner. 6. The learned Sessions Judge while hearing the appeal, after considering the facts and circumstances of the case, modified the findings of the learned trial Court and instead of dismissing the appeal or acquitting the accused from the charge of Section 352 I.P.C., held him guilty for the offence under Section 353 I.P.C. and vide his impugned judgment dated 30.3.2007 awarded a sentence of one year's R.I. and a fine of Rs. 5,000/-, in default of payment of fine, to further undergo two months' additional R.I. Against the impugned appellate Court's judgment and order, this revision has been filed. The notice of this revision was given to the State. Record of the case was called and the arguments were heard. 7. During the course of arguments learned counsel for the accused- petitioner submitted that the learned appellate Court has not properly considered and appreciated the facts as well as the material available on record and has passed erroneous and illegal judgment, that is not sustainable and is liable to be quashed and set aside. It was further contended that the learned Appellate Judge was not having jurisdiction to modify or to convert the conviction from 352 I.P.C. to 353 I.P.C., as there was no appeal or revision filed by the State or by the complainant, therefore, the accused-petitioner could not have been convicted and sentenced under Section 353 I.P.C., thus, the said impugned order is bad in law. 8. It was submitted that in this case, the accused was charged for Sections 186 and 353 I.P.C. but the prosecution has not been able to prove those charges as rightly held by the trial Court. In this respect my attention was drawn towards the statement of the prosecution witnesses, particularly, the eye-witnesses of the incident, namely PW-5 Ashok Kumar and PW-6 Mahveer Prasad. These witnesses are of the same hospital and their presence were very much proved by the material placed by the prosecution side. They were not supporting the prosecution story. In this respect my attention was drawn towards the statement of the prosecution witnesses, particularly, the eye-witnesses of the incident, namely PW-5 Ashok Kumar and PW-6 Mahveer Prasad. These witnesses are of the same hospital and their presence were very much proved by the material placed by the prosecution side. They were not supporting the prosecution story. The other witnesses are chance witnesses and are interested witnesses. Thus, learned trial Judge did not find the charge of Sections 186 and 353 I.P.C. levelled against the accused-petitioner proved beyond doubt. However, it was contended that he has wrongly convicted the accused under Section 352 I.P.C. It was submitted that even the offence under Section 352 I.P.C. is not proved. The learned trial judge has passed the order on the basis of statement of the complainant, which is not supported by any reliable independent corroborative evidence and further that has not been supported by medical evidence, therefore, the petitioner had challenged his conviction before the learned Sessions Judge in appeal. The scope of appeal was limited upto the contentions raised by the appellant in his appeal he could not be held guilty for higher offence. It was submitted by the learned counsel for the accused- petitioner that there was no appeal filed by State or the complainant and in that eventuality, the only option available with the learned Sessions Judge was either to dismiss the appeal filed by the accused or to allow the same thereby resulting in the acquittal of the accused. The learned Appellate Judge was not having any jurisdiction to alter the conviction of the accused-petitioner from Section 352 to 353 I.P.C. Thus, it was contended that the learned Sessions Judge has committed grave error of law in convicting the accused-petitioner under Section 353 I.P.C. 9. It was also contended by the learned counsel that while hearing the appeal, the learned Sessions Judge has modified the conviction from Section 352 I.P.C. to Section 353 I.P.C., thus, the learned Court has acquitted the accused- petitioner from the charge of Section 352 I.P.C., therefore, his appeal should have been allowed. 10. It was further contended that in this case before convicting the accused-petitioner under Section 353 I.P.C., neither separate notice was given to the accused by the learned Court in this respect nor he was heard on this issue. 10. It was further contended that in this case before convicting the accused-petitioner under Section 353 I.P.C., neither separate notice was given to the accused by the learned Court in this respect nor he was heard on this issue. It was also urged that the learned Sessions Judge if would have proceeded under the power of revision, though, he was not having such power to convert or to enhance even in that position affording opportunity of hearing to the accused- petitioner before passing the impugned judgment was must, but no such procedure has been adopted. The learned counsel in support of his contentions placed reliance on the following judgments 1) Saheb Singh & Ors. v. State of Haryana, AIR 1990 SC 1188 , (2) Smt. Saraswati Devi & Ors. v. The State of Sikkim, 2001(4) Crimes 318 and 3) George Thomas & Anr. v. State of Kerala, 1995 Cri.L.J. 3645 and on the basis of the aforesaid submissions, it was prayed that the revision filed by the accused-petitioner may kindly be allowed and the judgment and order passed by the learned appellate Court convicting and sentencing the accused-petitioner under Section 353 I.P.C. be quashed and set aside and the petitioner may be acquitted from all the charges. 11. Learned Public Prosecutor supported the impugned judgment and submitted that being appellate Court, the learned Court was having full power to pass impugned order. 12. I have considered the rival contentions and have carefully gone through the record of the case. From the perusal of the record, it reveals that on the report of the complainant-Jitendra Pal Singh, a case for the offence under Sections 353 and 186 I.P.C. was registered. Thereafter charge-sheet was filed. During trial from the side of prosecution as many as ten witnesses were produced (including the complainant). The learned trial judge vide his judgment dated 18.11.2000 after a detail discussion, did not find the charges under Sections 353 and 186 I.P.C. proved against the accused-petitioner and had acquitted the accused from those charges and had held him only guilty for the offence under Section 352 I.P.C., however, looking to the facts and circumstances of the case granted him the benefit of Probation of Offenders Act. Thus, it is the admitted case that the accused-petitioner was acquitted from the charges of Sections 353 and 186 I.P.C., and no appeal or revision was filed by either the State or by the complainant before the learned Sessions Judge, therefore, qua the acquittal from the charges of Sections 353 and 186 I.P.C., the order of the learned trial judge had attained finality. The accused-petitioner had filed appeal against his conviction recorded under Section 352 I.P.C., thus, the learned Sessions Judge was only confined to either admit or dismiss his appeal. He was not having jurisdiction to convert the conviction from Section 352 to 353 I.P.C., otherwise the very purpose cf filing the appeal by the State becomes redundant. In this case the State was free to move for appeal against the order of acquittal under Sections 353 and 186 I.P.C. but no such appeal or revision was filed. It is also pertinent to note that the learned Sessions Judge while hearing the appeal filed by the accused-petitioner has nowhere acted under the revisional power. He has not given any separate notice to the accused-petitioner before proceeding to modify or alter the sentence, thus, the learned Sessions Judge was not having jurisdiction to hold the petitioner guilty under Section 353 I.P.C. The conclusion finds support from the decision given in the case of Smt. Saraswati Devi & Ors. v. State of Sikkim (supra). In that case, it was observed that in the absence of appeal by State the Sessions Judge does not have power to enhance the sentence. In case of Saheb Singh & Ors. v. State of Haryana (supra) the accused persons were convicted under Section 302/149 I.P.C. and awarded sentence of life imprisonment and a fine of Rs.200/-. No appeal was filed by the State for enhancement of fine. In appeal the amount of fine was enhanced to Rs. 30,000/-. The Hon'ble Apex Court observed that in absence of appeal, the amount of fine could not be enhanced and it was held illegal. In George Thomas & Anr. v. State of Kerala (supra) the scope of power under Section 397 Cr.P.C. has been dealt. Thus, on the basis of the aforesaid discussion the conviction of the accused-petitioner under Section 353 I.P.C. is not sustainable and even on merit of the case the charge of Section 353 I.P.C. is not found proved. In George Thomas & Anr. v. State of Kerala (supra) the scope of power under Section 397 Cr.P.C. has been dealt. Thus, on the basis of the aforesaid discussion the conviction of the accused-petitioner under Section 353 I.P.C. is not sustainable and even on merit of the case the charge of Section 353 I.P.C. is not found proved. The learned Sessions Judge has not applied the provisions of law in right perspective, therefore, the conviction and sentence awarded to the accused under Section 353 I.P.C. is liable to be quashed. The learned Sessions Judge while modifying the sentence in place of Section 352 I.P.C., has converted it to offence under Section 353 I.P.C. Thus, the order of the learned Sessions Judge to the extent of modifying and converting the sentence from Section 352 to 353 I.P.C. is set aside but his conviction under Section 352 I.P.C. is maintained. I have considered the submissions placed by the counsel for the petitioner qua holding him guilty under Section 352 I.P.C. but looking to the facts and circumstances of the case and the scope of revision no interference is needed. 13. On the basis of the aforesaid discussion, the revision petition is partly allowed. The impugned order passed by the learned Sessions Judge to the extent of holding the accused-petitioner guilty and convicting him under Section 353 I.P.C. instead of Section 352 I.P.C. is hereby quashed and set aside. Now the accused-petitioner is not required to surrender and serve the awarded sentence under Section 353 I.P.C. His bail-bonds filed for his appearance vide order dated 6.4.2007 are hereby cancelled.Revision partly allowed. *******