JUDGMENT & ORDER (ORAL) Heard Mr. R. Dutta, learned counsel appearing for the petitioners as well as Mr. R. C. Debnath, learned Addl. PP appearing for the State. 2. This is a petition under Section 397 read with Section 401 of the Cr.P.C. from the judgment dated 22.05.2015 delivered in Criminal Appeal No.19(2) of 2014 by the Sessions Judge, Gomati Judicial District, Udaipur upholding the judgment and order of conviction and sentence passed by the Judicial Magistrate, 1st Class, Amarpur in case No.PRC 35 of 2012. The petitioners have been sentenced to suffer two years RI with fine of Rs.2,000/, in default to suffer SI for 30 days in terms of their conviction under Section 332 of the IPC and RI for one year in terms of their conviction under Section 428 of the IPC. It has been also observed by the trial court that both the sentences shall run concurrently. By the impugned judgment, the appellate court has simply affirmed the said Judgment and order of conviction and sentence. 3. The genesis of the prosecution case is rooted in the written ejahar filed by one Mohan Singh Jamatia, the Officer-in-Charge of Jatanbari Fire Station on 23.02.2012 informing the Officer-in-Charge, Nutanbazar PS that on 23.02.2012 at about 4.30 in the afternoon, they received a call from Depaichari Uchai Para forest area that there was a fire incidence. They immediately rushed to the place of the fire incidence. When they almost extinguished fire, they received another call from Depaichari Muslim Para, that a fire incidence had taken place in that area also. When they reached at that place with their fire tanker bearing No.TRG592, the frenzied mob attacked the said fire tanker. In the said attack, five fire personnel received injuries. Based on the said written ejahar, Nutanbazar PS Case No.09 of 2012 under Section 353/333/437/34 of the IPC was registered and taken up for investigation. After the investigation was complete, the final police report chargesheeting the petitioners was filed. The trial court after taking the cognizance framed the charge against the petitioners under Sections 353/332/427/34 of the IPC to which the petitioners pleaded innocence and claimed to be tried. 4. In order to substantiate the charge, the prosecution adduced as many as 17 witnesses including the informant, Mohan Singh Jamatia, PW2 and other injured witnesses. The trial court after taking the cognizance framed the charge against the petitioners under Sections 353/332/427/34 of the IPC to which the petitioners pleaded innocence and claimed to be tried. 4. In order to substantiate the charge, the prosecution adduced as many as 17 witnesses including the informant, Mohan Singh Jamatia, PW2 and other injured witnesses. The prosecution had also introduced several documents including the written ejahar, the seizure list and site map. But no injury report has been introduced in the evidence despite such injury reports are available in the police papers. Even no doctor was examined. For the defence, no evidence was adduced. Their case was complete denial. After recording the evidence, the trial court returned the finding of the conviction holding as under: “16. The evidence of P.W.2 is totally corroborated by P.W.4, 6, 7, 8, 9 & 11 who were, along with other officers, at Depaichari Uchai Para and Muslim Para. Besides this, P.W.4, 6, 7, 8, 9 & 11 are also victim of this case and sustained injury during throwing of brick bets and were being assaulted by the public at Muslim Para including present accused persons. P.W.4 corroborated the deposition of P.W.2 and deposed that on 23/02/2012 they received one call about the setting of fire at Depaichari Uchai Para in one rubber garden accordingly he along with other staff went to the spot and extinguish fire and during that time they received another call that a fire took place at Depaichari Muslim Para. Accordingly, they rushed to the Depaichari Muslim Para to control fire, keeping two fire men at Uchai Para and when they reached Muslim Para then some public become violent and attacked to their vehicle and fire men by way of lathi, brick, shaval etc. As a result, they sustained injury on their persons. P.W.4 also identified the accused person before the court. His deposition during cross-examination also remain intact. In same way, the deposition of P.W.6 7, 8, 9 & 11 are also totally corroborated with the deposition of P.W.2 & 4 and their evidence during cross-examination remain intact and the defence did not sake their evidence by putting long question and suggestions. P.W.4 also identified the accused person before the court. His deposition during cross-examination also remain intact. In same way, the deposition of P.W.6 7, 8, 9 & 11 are also totally corroborated with the deposition of P.W.2 & 4 and their evidence during cross-examination remain intact and the defence did not sake their evidence by putting long question and suggestions. P.W.10 also corroborated the deposition, so far as, the identification of the accused person and seized articles are concerned, almost all the P.Ws such as P.W.2, 4, 6, 7, 8, 9, 10 & 11 identified the accused person before the court and all the seizure witnesses such as P.W.1, 3, 5, 13 & 15 identified the seized articles before the court which were duly exhibited. 17. P.W.16 who was engaged to assess and submitted a damage of water tanker deposed that cost of damage of the water tanker would be approximately Rs.10,000/and he submitted his report accordingly. 18. From the above evidence, I can easily conclude that on receiving call of a fire set on at Depaichari Uchai Para by P.W.12 on 23/02/2012 at about 3.20 p.m., it was immediately informed to the officials of fire service. Then, P.W.2, 4, 6, 7, 8, 9, 10 & 11 went to the Uchai Para along with water tanker and extinguished almost 80% of the fire, in the meanwhile, P.W.2 also received another call on wireless of setting fire at Depaichari Muslim Para and it was informed to the officials of fire service who were engaged at Uchai Para for extinguishing the fire then the officials rushed to the Depaichari Muslim Para with their water tanker placing two men at Uchai Para and when the staffs of fire service were about to enter at Depaichari Muslim Para, at that time, some local people along with the present accused persons attacked to their vehicle and also assaulted to P.W.4, 6, 7, 8, 9 & 11 with the help of dao, stick, shaval etc. and also caused damage to the water tanker of fire service. As a result, staff of fire service got injury on their person and water tanker also got damaged.” It is apparent that the prosecution’s main witnesses were PWs.2, 4, 6, 7, 8, 9 and 11. Other witnesses are either formal or they are witness to the seizure only. 5. Mr. As a result, staff of fire service got injury on their person and water tanker also got damaged.” It is apparent that the prosecution’s main witnesses were PWs.2, 4, 6, 7, 8, 9 and 11. Other witnesses are either formal or they are witness to the seizure only. 5. Mr. R. Dutta, learned counsel appearing for the petitioners has urged two grounds of objection viz. (1) that there is no sustainable evidence of hurt and (2) that the petitioners even if was in the crowd did not do any overt act constituting the offence as charged. He has referred the evidence of PW8 in particular to show that none of the fire service personnel came down from the fire column when there was the alleged attack. Only the driver of the vehicle (PW6) has been alleged to suffer injury when a brickbat hurt him coming through the window of the fire column. Mr. Dutta, learned counsel has also stated that there is also discrepancy as the driver of the fire column has stated that he was hurt on the back of his body whereas the other witness, PW2 has stated that his forehead was injured by the said brickbat. As such, he has urged that the allegation of getting hurt is totally concocted for purpose of launching this case as the vehicle was damaged by an angry mob. 6. From the other side, Mr. R. C. Debnath, learned Addl. PP has submitted that the oral testimonies of the injured witnesses cannot be discarded unceremoniously because they did not have any personal enmity with any member of the mob which attacked the fire column. He has further submitted that this type of incidents is growing nowadays on jeopardying the machinery to provide the effective combative operation for extinguishing fire. This court asked Mr. Debnath, learned Addl. PP that in the ejahar no overt act has been attributed to the petitioners merely their name has been noted as the accused persons. Even if the testimonies are scanned, it could be gathered that none of the witnesses have attributed any overt act to either of the petitioners. Moreover, their identification after a year in the trial whether can be accepted for identification for purpose of convicting them for committing the offence punishable under Section 332 of the IPC. Mr. Debnath, learned Addl. Even if the testimonies are scanned, it could be gathered that none of the witnesses have attributed any overt act to either of the petitioners. Moreover, their identification after a year in the trial whether can be accepted for identification for purpose of convicting them for committing the offence punishable under Section 332 of the IPC. Mr. Debnath, learned Addl. PP has categorically stated that how they have been identified by the witnesses has not been questioned in the cross-examination and now this court may not examine that aspect of the matter and secondly he has submitted that mere presence in the unlawful assembly is sufficient enough to punish him for committing the offence. 7. This court has scrutinized the records afresh and finds that PW1, Harekrishna Acharjee is a mere seizure witness. PW2 Mohan Singh Jamatia who lodged the FIR has categorically stated that only the driver of the fire vehicle namely Priyatosh Debnath, PW6, sustained the injury on his forehead as a broken piece of glass hit him there. He has further stated that due to the attack and assaults their six firemen namely Jayanta Saha, Kharendra Reang, Sukla Mohan Jamatia, Praban Marak and others sustained injury. Out of the assailants, he identified Nuruddin Miah and another Aktar Miah, the petitioners herein. In the cross-examination, it was suggested that the witness had implicated the petitioners for no reason or falsely. PW3, Md. Hrishu Miah has stated that he is also a seizure witness from the place of occurrence. PW4, Buban Das has stated that they sustained ‘bricks blow on their person’. He has categorically stated that Jayanta Saha, Kharendra Reang and 5/6 other persons also sustained injuries. Out of the assailants, he could identify two persons, namely Jalil Miah and Nuruddin, the petitioners. PW5, Rajan Debnath is a seizure witness. PW6, Priyatosh Debnath, the driver of the vehicle has categorically stated that he sustained injury on his back due to throwing of bricks over him. Out of those several persons he could identify one Jalil Miah and Nur Uddin. He has also stated that the fire service personnel namely Jayanta Saha, Biswajit Das, Sukla Mohan Jamatia sustained injury due to the said attack. PW7, Biswajit Das also stated in the same way as he also sustained injury on his left hand and he identified the petitioners as the assailants. He has also stated that the fire service personnel namely Jayanta Saha, Biswajit Das, Sukla Mohan Jamatia sustained injury due to the said attack. PW7, Biswajit Das also stated in the same way as he also sustained injury on his left hand and he identified the petitioners as the assailants. PW8, Jayanta Saha, who had also received injury has categorically stated that “due to the attack we did not get the opportunity and chance to come down from the tanker vehicle. Priyatosh Debnath moved back the vehicle and came to NTB PS from Muslim Para”. PW9, Paban Marak has also stated in the trial as under: “...........when we stopped with our vehicle then our vehicle was entering towards the turning of the road suddenly the public of Muslim Para attacked us with bricks, shovel and wooden stick. They also damaged the glass of our water tanker vehicle. Due to the attack I sustained injury on my arms of left hand. Out of those persons I can identify two accused and they are one Jalil Miah and another Nur Uddin”. He also identified the petitioners in the dock. PW10, Tharendra Reang also identified the petitioners as amongst the assailants. PW11, Sukla Mohan Jamatia also stated that due to the attack he sustained injury on his right hand. He also identified Nur Uddain and Jalil Miah amongst the mob which attacked the said fire column. PW12, Amal Kr. Jamatia did not state anything of material importance. PW13, Chandra Kishore Tripura is a seizure witness. PW14, Sashi Rn. Chakma is also a seizure witness. Similarly, PW15, Piklu Dey is a seizure witness and he did not disclose anything of material importance. PW16, Tapan Kr. Roy who was serving as the District Fire Officer at Agartala has stated that he enquired into the matter and estimated the damage approximately to the extent of Rs.10,000/with the repairing cost of the water tank etc. PW17, Narayan Debnath, who is a Sub-Inspector of Police at the relevant point of time was posted at Jatanbari Outpost. He has narrated how he received the written ejahar and started the investigation into the matter by preparation of the site map and examining the witnesses. He had seized the materials from the place of occurrence. After investigation was complete, he filed the chargesheet sending the petitioners to face the trial under Section 353/332/427/34 of the IPC. He has narrated how he received the written ejahar and started the investigation into the matter by preparation of the site map and examining the witnesses. He had seized the materials from the place of occurrence. After investigation was complete, he filed the chargesheet sending the petitioners to face the trial under Section 353/332/427/34 of the IPC. In the cross-examination, virtually he did not deviate from any statement made in the examination-in-chief. When the petitioners were examined under Section 313 of the Cr.P.C., their stand was denial and innocence and as such burden of proving the prosecution case was entirely with the prosecution. 8. What is really surprising is that when a person witnessed the occurrence but did not disclose any overt act on the written ejahar. In the trial, all the witnesses have attributed the criminal act on the petitioners. That apart, none of the witnesses who identified the petitioners in the trial made any statement how they were acquainted with the petitioners. The burden to lay the evidence in the circumstances lies with the prosecution. The prosecution is obligated to lay reliable evidence. If that is not so that they had identified the petitioners by their face in the trial whether such identification after about one year based on a fleeting sight which the witnesses gathered in such a pandemonium could be relied by this court or not. 9. Mr. Dutta, learned counsel has rightly pointed out that for purpose of convicting someone under Section 353 of the IPC, the primary and the foremost ingredient that has to be established by the prosecution is that the hurt was caused to the public servant. Unless that ingredient is proved, the other components of the offence such as the hurt that was caused to the public servant, who was discharging his duty in order to prevent or deter that person from discharging his duty or in consequence of anything done or attempted to be done by such public servant in the lawful discharge may not be very relevant. Except the oral evidence, there is no other evidence in the record to show that those persons got hurt in the said occurrence. Moreover, their statement cannot be believed as one of the persons who was also the witness and has stated to have received hurt could not get down from the vehicle. Except the oral evidence, there is no other evidence in the record to show that those persons got hurt in the said occurrence. Moreover, their statement cannot be believed as one of the persons who was also the witness and has stated to have received hurt could not get down from the vehicle. They were all inside the vehicle and except PW2, nobody has stated that the window screen of that vehicle was broken and a piece came inside the vehicle. Even the said statement of PW2 has virtually been negated by the driver of the vehicle, PW6. He has stated that he received injury from brickbat which entered into the vehicle. All these circumstances as put up by the prosecution against the petitioners if are closely scanned no inference incriminating the petitioner can be drawn. Moreover, the trial court by accepting the identification in the trial has committed a serious error. Such, identification is unreliable. In the criminal jurisprudence, identification must be based on the substantive evidence, not the guess work, so that except on unimpeachable foundation of the evidence nobody can be punished as it is always considered probable of punishing someone who was not actually involved in the offence. Moreover, in absence of any overt act, on mere presence of the innocent person in the assembly which went berserk subsequently is most unlikely to invite conviction under Section 332 of the IPC, as this court in Chandan Tripura vs. State of Tripura reported in 2013 (4) GLT 56 has observed that so far the conviction returned under Section 332 of the IPC against the appellants namely Chandan Tripura and Manik Bhowmik for causing grievous hurt or hurt to deter the public servant from discharging his duty is not supported by evidence. Unless there is direct evidence that the appellants at any point of time attempted to deter any public servant by any overt act the purport of Section 141A becomes inured. Therefore, requirements to constitute offence under Sections 332 and 333 of the IPC are almost similar. The same principle can be applied. Mere presence in the crowd, in such a circumstance, cannot make any person liable to be convicted under Section 332 of the IPC. 10. Having held so, the petitioners are entitled to the benefit of doubt and accordingly the impugned judgment and order of conviction and sentence are interfered with and set aside. The same principle can be applied. Mere presence in the crowd, in such a circumstance, cannot make any person liable to be convicted under Section 332 of the IPC. 10. Having held so, the petitioners are entitled to the benefit of doubt and accordingly the impugned judgment and order of conviction and sentence are interfered with and set aside. The petitioners are acquitted from the charge on benefit of doubt. The sureties be discharged from their respective obligation. In the result, this petition stands allowed. Send down the LCRs forthwith.