JUDGMENT H. Baruah, J. 1. Heard Mr. N. Chakraborty, learned Counsel appearing for and on behalf of the Appellants. Also heard Mr. B.B. Gogoi, learned Addl. P.P. representing the State of Assam. 2. Both the Appellants were tried by the learned Sessions Judge, Darrang, Mangaldoi under the charges under Section 447/34, 333/34 and 323/34 IPC and after due trial learned Sessions Judge convicted both the Appellants under Section 447, 334 and 332/34 IPC and sentenced each of them to undergone rigorous imprisonment for 3(three) months and fine of Rs. 500/- in default rigorous imprisonment for 15 (fifteen) days under Section 447, rigorous imprisonment for 1 (one) year and to pay fine of Rs. 1000/-, in default rigorous imprisonment for 1 (one) month under Section334/34 IPC and rigorous imprisonment for 4(four) years and to pay fine of Rs. 1000/- each, in default to suffer rigorous imprisonment for 3(three) months under Section 333/34 IPC. 3. Being aggrieved by this judgment and order of conviction and sentence, this appeal has been preferred by both the Appellants challenging its correctness and legality. 4. The facts involved in this case are as follows: Injured Dilip Kumar Sarmah (P.W. 1) is a Forest Guard stationed at Mazbat Range Office during the relevant period. On 28.2.1998 he was at his forest beat office at Rowta, at about 8.30 p.m. Both the Appellants came to his quarter and assaulted him with lathi and dagger without any rhyme and reason. As a result of such assault he sustained injuries and also a cut injury over his nose by the side of the eyes. During assault his wife was also present. He was shifted to Mazbat range office and then to Mazbat Civil Hospital and accordingly he was examined by Dr. D. Saikia (P.W. 3). An FIR having been lodged by one Bhadreswar Borah of Mazbat Range Office, police registered a case and investigate into. After due investigation of the case police submitted charge sheet against both the Appellants under Sections447, 324, 325, 333 read with Section 34 IPC. Offence under Section 333, being exclusively trial by the Court of Session, the case was committed to the Court of Sessions at Mangaldoi for trial of the Appellant. The learned Sessions Judge framed charge against both the Appellants under Sections447/34, 333/34 and 323/34 IPC. Appellants pleaded not guilty and claimed their trial. Offence under Section 333, being exclusively trial by the Court of Session, the case was committed to the Court of Sessions at Mangaldoi for trial of the Appellant. The learned Sessions Judge framed charge against both the Appellants under Sections447/34, 333/34 and 323/34 IPC. Appellants pleaded not guilty and claimed their trial. To bring the Appellants to book under the charges as indicated above altogether 5 (five) witnesses were brought to the witness box including doctor and the I.O. After closure of the prosecution evidence Appellants were examined under Section 313 of the Code of Criminal Procedure. Defence examined one witness. The trial Court having meticulously gone through the facts and evidence on record convicted both the Appellants as indicated above and sentenced accordingly. 5. Mr. N. Chakraborty, learned Counsel appearing for the Appellants at the very out set submits that the conviction awarded under the charges under Section 332/34, 333/34 cannot persist in view of evidence of P.W. 1, the injured himself It has been stated by P.W. 1 that the assault had taken place in his quarter at about 8.30 p.m. while he was sitting in the varanda along with his wife (P.W. 2). There is no evidence forthcoming from him that at the time of assault he was discharging his official duties as forest guard. Section 332 and 333 IPC relates to punishment of an offender who voluntarily causes hurt to any person being a public servant in the discharge of his duty as such public servant, or with intent to prevent or deter that person or any other public servant from discharging his duty as such public servant and also causing of grievous hurt to such public servant while discharging his duties as such public servant. Both the sections, therefore, confined to hurt, one of simple nature and the other grievous in nature. According to Mr. N. Chakraborty, learned Counsel for the Appellants neither of the sections can be brought against any of the Appellants since P.W. 1, the Forest Guard was not in his duty at the relevant point of time. From the report submitted by the Investigating Officer per provision of Section 173 Code of Criminal Procedure it appears that P.W. 1 at the time of assault was discharging his duty as public servant and accordingly the trial Court having found prima-facie case framed charges under Section 332/34,333/34 IPC. From the report submitted by the Investigating Officer per provision of Section 173 Code of Criminal Procedure it appears that P.W. 1 at the time of assault was discharging his duty as public servant and accordingly the trial Court having found prima-facie case framed charges under Section 332/34,333/34 IPC. But the prosecution failed to bring that aspect of the matter on to the record to show that actually P.W. 1 was discharging his duty as public servant at the relevant night. There is no whisper in the evidence of P.W. 1 also that at the relevant point of time he was discharging duty as public servant. A conviction under both the Sections would only be sustainable only when there is evidence of record to hold that the person concerned was discharging his duty as public servant at the relevant point of time. This aspect being missed from the evidence of P.W. 1 or in the evidence of other witnesses, who are examined as prosecution witnesses, this Court finds no ground to hold that the trial Court rightly convicted the Appellants under Section 332/333 IPC. To warrant conviction of an offender/accused against the particular charge the ingredients. which are to be proved, must have been proved by the prosecution. Accordingly, the ingredients which are necessary for the purpose of proving of the charges have not been proved by the prosecution and, therefore, to my considered view the conviction rendered under those two sections cannot sustain. But fact remains that P.W. 1 is a Forest Guard and he was at that time having an allotted first quarter. Evidence of P.W. 1 and evidence of P.W. 2 together make it palpably clear that P.W. 1 was sitting in the varanda of his quarter and at the relevant time both the Appellants came and assaulted him with lathi and dagger causing injuries to his person. The fact that P.W. 1 sustained injury has been proved by the evidence of P.W. 3, the doctor who examined him at Mangaldoi Civil hospital. Though he was produced first time at Mazbat hospital no doctor has been examined as prosecution witness from the said hospital, therefore, according to learned Counsel for the Appellants the gravity/seriousness of the injury sustained by the P.W. 1 cannot be gauge at all in absence of examination of doctor of Mazbat Hospital. Though he was produced first time at Mazbat hospital no doctor has been examined as prosecution witness from the said hospital, therefore, according to learned Counsel for the Appellants the gravity/seriousness of the injury sustained by the P.W. 1 cannot be gauge at all in absence of examination of doctor of Mazbat Hospital. The doctor who has been examined as P.W. 3 later attended the injured that too after stitching of the injury that sustained over the nose, therefore, the gravity of injury could not be gauged by the P.W. 3 and, accordingly, the injury sustained by P.W. 1 can be categorized as simple in nature. From the evidence of doctor (P.W. 3) it is also noticed that he has not indicated the nature of injury that discovered on the person (P.W. 1). In the face of such fact, the contention of Mr. N. Chakraborty, learned Counsel for the Appellant appears to have some substance that injury cannot be branded as grievous rather it can be categorized as simple. From the cross-examination of the witnesses we do not find any rebuttal that P.W. 1 did not receive any injury as a result of assault by the Appellants. Therefore, the fact of assault is writ large in the evidence of all the witnesses. When the evidence is specific about the assault on P.W. 1 by both the Appellants and when such fact is corroborated by P.W. 2 though she is the wife of P.W. 1, her evidence if conjointly read together gives a indication that P.W. 1 sustained injury as a result of assault on him by the Appellants. There is no evidence that there was any provocation from the side of the P.W. 1, which resulted assault on him by the Appellants, therefore, the voluntariness would come into play in causing assault on P.W. 1 by the Appellants. Section 321 of the IPC relates to voluntarily causing hurt and it speaks that whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". When there is no provocation from the side of the P.W. 1 the acts of assault fall within the purview of this section. When there is no provocation from the side of the P.W. 1 the acts of assault fall within the purview of this section. If someone voluntarily causes hurt to anybody that someone is punishable under Section 323 IPC. In 323 punishment is provided for 1 (one) year imprisonment or fine or with both and maximum fine is provided is up to Rs. 1000/-. Both the Appellants when there is overwhelming evidence of assault can be dealt with under Section 323 IPC for causing simple hurt to P.W. 1 voluntarily without any provocation. It is found from the record that the Appellant Pradip Deka during investigation was arrested on 3.9.1998 and he was released on bail on 12.10.1998. However, the Appellant Madan Deka was never put in detention during the investigation or trial. Both the Appellants were released on bail on 31.3.2001 after submission of the charge sheet. It indicates, only the Appellant Pradip Deka was in detention for a period of 1 (one) month 8 (eight) days. In that view of the matter it is submitted by Mr. N. Chakraborty, learned Counsel for the Appellants that a lenient punishment can be awarded to both the Appellants under Section 323 IPC. Application of Section 34 IPC is not required to be dealt with inasmuch as both the Appellants resorted to assault. When an overt act was done by the both the Appellants, application of Section 34 IPC would be useless. In view of the submission advanced by the learned Counsel for the Appellants as well as the facts and evidence on record, I hold that both the Appellants guilty under Section 323 IPC and accordingly convict both of them to pay fine of Rs. 1000/- each, in default 1 (one) month rigorous imprisonment. 6. In respect of conviction and sentence awarded under Section 447 IPC, this Court finds no impediment to affirm the same in view of the evidence of P.W. 1 and P.W. 2 in particular. Both have stated that both the Appellants had been to the quarter of the P.W. 1 and assaulted him. 6. In respect of conviction and sentence awarded under Section 447 IPC, this Court finds no impediment to affirm the same in view of the evidence of P.W. 1 and P.W. 2 in particular. Both have stated that both the Appellants had been to the quarter of the P.W. 1 and assaulted him. Criminal trespass has been defined under Section 441 of the IPC and it says that whoever enters into or upon property in the possession of another with interest to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "Criminal trespass". Admittedly the forest quarter was allotted to P.W. 1 he being the Forest Guard of Mazbat Range Office. Both the Appellants without any just cause or reason entered being armed with lathi and dagger and started assault on P.W. 1, the husband of P.W. 2. therefore, the acts resorted to by both the Appellants indicates that they had a guilty mind and accordingly entered into the premises the quarter of P.W. 1 and assaulted him. Therefore, the entrance of both the Appellants into the premises of P.W. 1 falls within the purview of the definition of criminal trespass. Section 447 is a penal provision of the person who commits criminal trespass. Both the Appellants evidently entered into the quarter premises of the P.W. 1 and, thereafter, resorted to assaulted on P.W. 1. Therefore, there entrance cannot be branded as legal one rather it can be said that they trespassed into the quarter premises of the P.W. 1 with criminal intention. The learned trial Court to my considered view rightly convicted the Appellants under Section 447 IPC. I find no plausible ground to set aside the conviction and sentence of the Appellants awarded under Section 447 IPC. Accordingly, the same is affirmed. Section 447 IPC provides punishment for 3(three) months with fine of Rs. 500/- only. Taking note of the facts and the evidence on record as well as the submissions advanced by the learned Counsel for the Appellants, the punishment awarded under Section 447 IPC is modified to a sentence of fine only. Accordingly each of the Appellant is directed to pay a fine of Rs. 500/- only. Taking note of the facts and the evidence on record as well as the submissions advanced by the learned Counsel for the Appellants, the punishment awarded under Section 447 IPC is modified to a sentence of fine only. Accordingly each of the Appellant is directed to pay a fine of Rs. 500/-, in default 10 days rigorous imprisonment. 7. Both the Appellants shall pay the fine as indicated above within a period of 1(one) month before the Court of Sessions at Mangaldoi, which shall be deposited in the Treasury. 8. In the result, this appeal is partly allowed. Send down the Lower Court Records. Appeal partly allowed.