JUDGMENT 1. Heard learned counsel for the appellants, learned counsel for the respondent and learned Additional Public Prosecutor for the State. 2. Since both these appeals arising out of same judgment have been taken together. 3. Both the appellants stand convicted for the offence under section 353 of the Indian Penal Code and sentenced to undergo simple imprisonment for one year, and period already been served and detention is to be set off. 4. Since in these appeals there is very limited point to determine hence without going in further details, it is pertinent to mention that initially altogether ten persons including the appellants stand charged for the offences under sections 147, 148, 149, 504/149, 324/149, 353/149, 307/149 and 171C/149 of the Indian Penal Code besides Section 27 of the Arms Act. Out of whom one died during trial and remaining nine faced the trial, but seven of them have been acquitted by the trial court on 27th January 2009 in Session Trial No. 207/2004 by learned 3rd Additional Sessions Judge, Fast Track Court, at Sheikhpura, arising out of Barbigha P.S. Case No. 101/2001 corresponding to G.R. No. 287/2001 committed to the court of session on 21st February 2004. 5. It is pointed out that both the appellants along with six were charged under section 353 read with 149 of I.P.C. and all other accused persons facing trial have been acquitted, but the trial court without making any amendment in the charge convicted the appellants exclusively for the offence under section 353 of I.P.C. for which undisputedly there is no material. Moreover, the charge framed indicates the persons assaulted by the appellants or other accused were (1) Suresh Prasad Singh (2) Shiv Prasad Singh (3) Manoj Kumar (died) (4) Prem Shankar Choudhary (5) Shivrat @ Shivdam Singh (6) Chunchun Singh (7) Saroj Singh (8) Pankaj Kumar (9) Sita Ram Singh and (10) Mihir Kumar. But the trial court in para 12 of the judgment has stated that these two appellants fell upon each other inside the counting hall, and in para 18, the trial court found and hold that these two appellants since indulge themselves in scuffling inside the counting hall, they committed an offence under section 353 of I.P.C. But it is undisputedly contrary to the requirement and spirit to constitute any offence under section 353 of I.P.C. which reads as such: “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 with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” 6. In view of discussion made above, it is crystal clear that neither the two appellants themselves are public servant nor as per evidence and finding of the trial court they assaulted or used any criminal force against any such public servant, hence none of the requirements to constitute an offence under section 353 of I.P.C. is fulfilled. Consequently, finding of the court below as regard to two appellants is not at all sustainable. Hence, it is set aside. 7. In the result, these two appeals are hereby allowed. Both the appellants are set free from their respective bail bonds. Appeals allowed.