The court upheld conviction under S.323 IPC while overturning conviction under S.353 IPC due to inadequate evidence of official duties.

1. The legality, propriety and correctness of the judgment and order dated August 16, 2004 as passed by the learned Additional Sessions Judge, First Track Court, Bankura in Criminal Appeal No. 10 of 2003 is the subject - matter of the instant revisional application.

2. By the impugned judgment, the said appellate Court upheld the judgment and order of sentence as passed by the learned Judicial Magistrate, 3rd Court, Bishnupur on March 20, 2003 in G.R. Case No. 28 of 1995 whereby and whereunder the accused persons were found guilty under S.353/323, IPC and they were sentenced to suffer R.I. for one year each and to pay fine of Rs. 1,000/- each i/d to surer S.I. for one month for the offence committed by them under S.353, IPC. However, the learned Judicial Magistrate did not impose any separate punishment of sentence for the offence committed by the accused persons under S.323, IPC.

3. In course of his submission, Mr. Chatterjee, learned advocate for the revisionist at the very outset draws attention of this Court to the judgments as passed by the learned trial Court as well as by the learned first appellate Court. It is submitted on behalf of the present revisionist that both the learned trial Court as well as the first appellate Court has failed to consider that identification of the present revisionist before the learned trial Court has become doubtful in absence of any T.I. parade which affects the very root of the case.

4. It is further argued by Mr. Chatterjee, learned advocate for the revisionist that both the learned trial Court as well as the learned first appellate Court has failed to visualize that the present revisionist being a co - accused in the aforementioned G.R. case is not named in the FIR though from the evidence of the prosecution witnesses, it would reveal that the present revisionist and the other co - accused are the principal assailants. It is thus argued that both the learned trial Court as well as the learned first appellate Court has failed to consider that at the earliest opportunity, the name of the present revisionist was not mentioned in the written complaint which really casts a shadow of doubt with the alleged involvement of the present revisionist in the alleged crime which both the trial Court as well as the first appellate Court had failed to consider causing serious miscarriage of justice for which the revisional jurisdiction of this Court may be exercised under S.397 read with S.401, CrPC

5. In his next fold of submission, Mr. Chatterjee, learned advocate for the revisionist further contended that in absence of any cogent material to show that the P.W. 1 on the relevant day and hour visited the P.O. in discharge of his official duty, both the Courts ought not to have come to a finding that P.W. 1 was resisted by the accused persons while he was discharging his official duty. It is further submitted on behalf of the revisionist that the learned trial Court as well as learned first appellate Court did not appreciate the cross - examination of the P.W. 1 in its proper perspective and, therefore, the conviction as awarded under S.353, IPC may be set aside.

6. It is further submitted by Mr. Chatterjee, learned advocate for the revisionist that the learned trial Court as well as the learned first appellate Court committed serious error in coming to a finding with regard to the involvement of the present revisionist in the alleged assault of P.W. 1 and, therefore, the finding of the aforementioned two Courts regarding the alleged offence committed under S.323, IPC is faulty.

7. Placing reliance upo