JUDGMENT : Heard Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. R.C. Debnath, learned Addl. PP appearing for the State. 2. This revision petition under Section 397(1) read with Section 401 of the Cr.P.C. is directed against the judgment and order dated 06.02.2014, delivered in Criminal Appeal No.03 (03) of 2013 by the Additional Sessions Judge, West Tripura, Sonamura whereby the Addl. Sessions Judge has affirmed the judgment and order of conviction and sentence dated 26.06.2013 passed by the Sub-Divisional Judicial Magistrate, Sonamura, West Tripura in GR Case No.386 of 2012 convicting the petitioner for committing offence punishable under Section 353 of the IPC and sentencing him to suffer one year RI with fine of Rs.1,000/-, with default imprisonment. Again the petitioner has been sentenced to suffer RI for one year and to pay a fine of Rs.1,000/- with default imprisonment under Section 332 of the IPC pursuant to the conviction under Section 332 of the IPC. 3. In this regard, it is to be noted here that the first appellate court has made modification in the mode of execution. “But, I find that learned court below while sentencing the accused both under Section 353 of I.P.C. and under Section 332 of I.P.C. separately ordered that both the sentences are to run consecutively. In my opinion, if both the sentences are to run consecutively it will be a harsh punishment to the convict. Accordingly, I modify the sentence and both the sentences shall run concurrently without changing the quantum of punishment”. [Emphasis supplied] 4. Before we embark on assaying the challenge, it would be apposite to mention that sine qua non of Section 332 of the IPC is causing hurt voluntarily 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, or in consequence of anything done or attempted to be done by that person in the lawful discharge of his duty. Similarly, Section 353 of the IPC provides that 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. 5. There is no doubt distinction between these two provisions and that distinction has been made up for different sets of situation. If the voluntary hurt is caused to any person being a public servant ‘in the discharge of his duties’ then the offender would be liable to be punished under Section 332 as his act would be treated as to create deterrence to the said public servant from discharging his duty. Whereas Section 353 has used the word in the execution of his duty as the public servant, if the public servant is subjected to assault or criminal force then the person who has committed such offence would be punishable under Section 353 of the IPC. As such, the primary duty of a criminal court while trying the offence allegedly committed by the accused person is to determine whether he has to be charged under Section 332 or 352 of the IPC meaning the trial court while framing the charge is to categorically mention whether the offence has been done ‘in discharge of the public duty’ or ‘in execution of the public duty’. The former stands for that, a person while discharging his duties was assaulted or subjected to the criminal force would come under Section 332 of the IPC. When the public servant, is assaulted at the time of executing his official duty, it would then come under Section 353 of the IPC. In this case, that aspect of the matter was not taken care of both by the trial court as well as the appellate court. 6. For this purpose, the charge as framed may be looked into. Both the charges under Section 353 and 332 had been framed without laying any distinguishable prerequisite action of the person who is stated to be the public servant for both the provisions. 6. For this purpose, the charge as framed may be looked into. Both the charges under Section 353 and 332 had been framed without laying any distinguishable prerequisite action of the person who is stated to be the public servant for both the provisions. It is a single transaction and from the FIR filed by the victim (PW1), it can be gathered that while the victim (PW1) was on duty, observed that some persons were trying to cross the border, the BSF personnel were trying to spot those persons. For purpose of reference, the relevant part of the FIR is extracted hereunder: “ON 03 Aug 2012 at about 1130 hrs, I NO90171448 HC Jagdish Chand observed that Indo Bangladesh Border, 0810 Bangladeshi trying Crossed the Border. Indian smuggler Abul Kashim S/O Abdul Mazid, Vill Dogara (Durgapur), PO Durgapur, PSSonamura, Dist Sepahijila (West Tripura). The Smuggler Cross the Border of Bangladeshi in view on duty present Bsf persons trying stop this persons. The smuggler present on duty BSF person Beaten (Bambo stick) on right Ear and smuggler ran away near village. The bsf persons injure on right Ear and Bleeding of right ear.” 7. Based on the said FIR, Sonamura PS Case No.141 of 2012 under Section 353/332 of the IPC was framed. Clearly, it shows that the offence as disclosed is covered by Section 353 of the IPC. In discharge of the duty and in execution of the duty cannot exist at the same time except in a series, for purpose of defining an act as offence either under Section 332 or 353 of the IPC. 8. Mr. R. Datta, learned counsel appearing for the petitioner has submitted that the prosecution case is structured on the oral testimonies of PW1, Sri Jagdish Chander (the victim), PW2, Sri Ramesh Ali, PW3, Sri Tapash Oran and Sri Padmanand V., PW4. PWs. 2, 3 and 4 are the constables and according to PW1, they all were trying to spot the intruders when there was a scuffle with the villagers. According to Mr. Datta, learned counsel, if the testimonies of PWs.1, 2, 3 and 4 are read together, it would be apparent that so far the involvement of the petitioner is concerned, that has been improved later on as PWs. 2, 3 and 4 even never stated to the investigating officer that PW.1 stated to them that he was assaulted by the petitioner. Datta, learned counsel, if the testimonies of PWs.1, 2, 3 and 4 are read together, it would be apparent that so far the involvement of the petitioner is concerned, that has been improved later on as PWs. 2, 3 and 4 even never stated to the investigating officer that PW.1 stated to them that he was assaulted by the petitioner. Again Mr. Datta, learned counsel has submitted that if the statement available in the FIR and the statement made in the trial by the PW.1 is compared, it would transpire that in the FIR there is no indication that the petitioner was the person who had beaten him up. He has merely mentioned that a smuggler had beaten him by a bamboo stick on his right ear and ran away to the village nearby. But in the statement made in the trial, he has stated that on 03.08.2012 when he was posted at the Kulubari Police Outpost with Constable Ramesh Ali, and Tapash Oran, the labourers from Bangladesh tried to enter into Indian territory and they were chased back to Bangladesh. At that time, Abul Kashem of village Dargapur came there and started to charge him as to why he chased those labourers as they belong to them. He suddenly collected a lathi and started assaulted him with the same. In the course, he received bleeding injury over his right ear. The two constables as named were in and around that place and rushed to the spot. The accused after hitting him fled away from there. The victim was transported to the Sonamura Primary Health Centre for treatment and was discharged. Mr. Datta, learned counsel did not fail to draw attention of this court that no injury report relating to the case has been admitted in the evidence. For establishing the hollowness of the prosecution case, Mr. Datta, learned counsel has stated that though PW.1 has stated that PWs.2 and 3 were along with him but even they did not corroborate such statement. Both PWs.2 and 3 have stated that seeing the quarrel between PW.1 and other civilians, they rushed to that spot and found Jagdish Chander was bleeding from the injury that he received over his right ear. Except that, they have disclosed nothing in the trial. Both PWs.2 and 3 have stated that seeing the quarrel between PW.1 and other civilians, they rushed to that spot and found Jagdish Chander was bleeding from the injury that he received over his right ear. Except that, they have disclosed nothing in the trial. However, PW.2 has stated that Jagdish Chander informed him that petitioner caused the said injury, while in the cross-examination, he has admitted that he did not state that part to the investigating officer. PW.3 even did not try to make such statement at all. PW.4 has corroborated that part as regards PW.1 received bleeding injury over his right ear. He has made a statement that PW.1 was showing to all of them that he had received the injury from Abul Kashem. But in the cross-examination, he has clearly stated that he was not examined by the investigation officer. 9. Mr. Datta, learned counsel therefore has submitted that in view of such non-corroboration and inconsistencies in the statement of PW.1, this court may not believe PW.1 for purpose of affirming the impugned judgment. 10. From the other side, Mr. R. C. Debnath, learned Addl. PP has submitted that it is not in dispute that PW.1 while discharging his duties or executing his assigned duty, he was assaulted and obviously the criminal force was applied on his person for deterring him. As such, the finding of conviction as returned and affirmed by the impugned judgment may not be interfered with. 11. There is evidence that PW.1 received bleeding injury and it may be so that he was attacked and he received injury during execution of his official duties. But from the statement of PW.2, it appears that quarrel was going on in between Jagdish Chander and another civilian. So there was no other person except that civilian. However, PW.2 did not identify that person, not even PWs.3 and 4. However, it is not clear why PWs.2 and 3 at least could not identify the petitioner. Even they did not identify the petitioner in the dock. Except PW.1, none has identified the petitioner in the dock. From a comparison as urged, it would reveal the FIR is not only ambiguous but it lacks even in minimal particular against the petitioner. However, it is not clear why PWs.2 and 3 at least could not identify the petitioner. Even they did not identify the petitioner in the dock. Except PW.1, none has identified the petitioner in the dock. From a comparison as urged, it would reveal the FIR is not only ambiguous but it lacks even in minimal particular against the petitioner. However, while the victim made his statement in the trial on 24.04.2013, almost after 8 (eight) months of the occurrence, he made the statement elaborate with definiteness but in the FIR nothing of that sort is available. Since, the FIR [Exbt.1] can be read by this court, this court cannot straightway believe the elaborate statement of transaction of offence as made after 8 (eight) months when those statements are not corroborated by any witness in the trial. 12. Having noticed thus, this court is constrained to observe that the conviction as returned by the impugned judgment cannot be sustained and accordingly the same is interfered with and set aside on benefit of doubt. In the result, the revision petition is allowed. The petitioner is set at liberty. Surety is discharged from his liability. Send down the LCRs.