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The appellants/accused have come forward with this appeal challenging their conviction and sentence passed by the learned Additional District and Sessions Judge -cum- Fast Track Court No.I, Madurai, dated 29.05.2007 made in S.C.No.65 of 2007, whereby and whereunder, the appellants were convicted for the offence punishable under Section 353 IPC and sentenced to undergo 3 months RI, to pay a fine of Rs.500/- each, in default, to undergo 1 month RI and the second appellant/accused No.2 was convicted for the offence punishable under Section 324 IPC and sentenced to undergo 6 months RI, to pay a fine of Rs.1,000/- in default, to undergo 1 month RI.

3. The learned trial Judge, after considering the oral and documentary evidence, convicted and sentenced the appellants as stated above, against the which, the present appeal has been preferred.

4. Assailing the judgment of conviction and sentence, the learned counsel for the appellants would submit that A-1 to A-3 were convicted for the offence punishable under Section 353 IPC. The ingredients of Section 353 IPC have not been made out. P.W.2 ? Pandian is not a Government servant and he is working as Supervisor in a Bar, which was run by the private individual. Even though he is the complainant, he disowned his complaint. Even, as per the evidence of P.W.2, there is no evidence to show that the appellants herein have prevented the public servant from discharging his official duty, since P.W.2 is not a public servant. The Trial Court, without considering the same, convicted the appellants under Section 353 IPC.

6. Resisting the same, the learned Government Advocate (Criminal side) would submit that even though charges have been framed against Accused Nos.1 to 3 under Sections 353, 506(2) IPC and Section 3(1) of TNPPDL Act and against the second accused under Section 324 IPC, the Trial Court, after considering the oral and documentary evidence, viz., P.Ws.1 to 9 and also Exs.P.1 to P.11, has acquitted them under Section 3(1) of TNPPDL Act and Section 506(2) IPC and convicted them under Section 353 IPC and 324 IPC (second accused) and hence, she prayed for dismissal of the appeal.

7. Considering the rival submissions made on both sides and on perusal of the typed-set of papers, it is seen that A-1 to A-3 were convicted for the offence punishable under Section 353 IPC and hence, it is the duty of the prosecution to prove that P.W.2, who is the Supervisor of the bar, is a public servant. However, in the case on hand, the evidence of P.W.1 and P.W.2 and P.W.8, has clearly deposed that P.W.2 is only the Bar Supervisor and he is not a public servant. It is pertinent to note that P.W.1, who is the complainant, has given go by to the earlier version. He has gone to the extent of saying, besides admitting his signature, he do not know as to whether the complaint has been given by him. In such circumstances, complaint and F.I.R. are not substantial piece of evidence and that can be used for corroboration and contradiction. Here, the evidence of P.W.1 has not been corroborated with the averment found in Ex.P.6 (complaint) and Ex.P.7 (F.I.R). In such circumstances, the evidence of P.W.1 has not supported the case of the prosecution, even though he was not treated as hostile. Therefore, I am of the view that there is no evidence before this Court to show that P.W.2 is a public servant and he was assaulted or prevented by A-1 to A-3 from discharging his official duty. Hence, the prosecution has failed to prove the ingredients of Section 353 IPC beyond all reasonable doubt. Hence, they are entitled to acquittal under Section 353 IPC, by giving the benefit of doubt.