KANWALJIT SINGH AHLUWALIA, J.

1. The office had reported on 23.7.2008 that appellant No.1 Sube singh has expired, therefore, present appeal qua him abate subject to an inquiry to be undertaken by the Chief Judicial Magistrate, Rohtak. In case factum of death of Sube Singh is found to be true, no reference will made to this Court otherwise Registry will revive the appeal qua Sube Singh.

2. Sube Singh, Sumer Singh and Roop chand were named as accused in case FIR no.84 dated 07.09.1995 registered at Police Station Sahlawas,under Sections 332, 333, 353 IPC. FIR in the present case was registered on the basis of statement made by Jai Karan Singh. On 5th September, 1995 complainant was posted as Social Education Panchayat Officer, Sahlawas. Occurrence in the present case pertains to 5th September, 1995. On that day complainant had submitted his report regarding damage caused by floods to SDM, Jhajjar. Complainant reached near village Amadal, where tractor of Roop Chand was parked. It was about 8.30 PM. At that time complainant heard the voice of Roop chand stating that enemy has come, he should not be escaped. He was given lathi blows on the forehead and on the right hand. Complainant also suffered injuries on right leg and thigh. He raised alarm to save himself. At that time Ram kumar, Mansa Ram and Rajrup were attracted at the spot. They got the complainant admitted in the Civil Hospital, Jhajjar. The abovesaid FIR was investigated and report under Sec.173 Cr. P. C. was submitted. Thereafter, trial Court charged the accused for offence under Sections 332 read with 34 IPC, 333 read with 34 IPC and 353 read with 34 IPC. The accused pleaded not guilty and claimed trial. Dr. Promila appeared as PW1. She had radiologically examined jai Karan and found no fracture. Dr. Joginder examined the complainant on 6th september, 1995 and found four blunt injuries, which were later declared as simple. Jai Karan Singh appeared as PW4 and stated as what has been stated in the FIR. His testimony was corroborated by PW5 Mansa Ram. The prosecution examined other police witnesses and proved various facets of investigation. The statement of accused was recorded under Sec.313 Cr. P. C. They pleaded false implication. Shri M. P. S. Mann, Advocate appearing for the appellants Sumer singh and Roop Chand has made following three submissions:-

A) That when alleged injuries were caused, complainant was not discharging any public duty as per the exhortation noticed in the FIR. He was stated to be enemy, therefore, injuries were not caused to the complainant due to reason that he was public servant.

B) The complainant had not named in the FIR any other accused except Roop Chand. Name of the accused surfaced in the supplementary statement of complainant. No identification parade was carried out. Accused were identified for the first time in the Court.

C) No role was attributed to Roop Chand except lalkara. In the Court an improvement was made that Roop Chand caught hold of complainant and made him fall on the ground. The complainant had suffered four simple injuries. Nature of the injuries reveals that the same were contusion, a swelling, bruise and a lecerated wound.

3. I find merit in the contention raised by the counsel for the appellants. In the night at 8.30 PM on the date of occurrence the complainant was returning after handing over the report regarding damage caused by the floods. At that time, complainant was not discharging any official duty. It has nowhere come in the evidence that injuries were caused to the complainant because any loss was caused to the accused because of discharge of duty by the complainant in his official capacity. A personal dispute or rivalry cannot be ruled out. Therefore, no evidence under Sec.332 IPC is made out. Hence, the offence, if any, will fall under Sec.323 IPC. Sec.323 IPC is a non- cognizable offence, therefore, the police could not have investigated the case and filing a private complaint was the remedy avail