Judgment:
Jai Singh Sekhon, J.
1. Rajinder Dutt appellant was convicted by the learned Addl. Sessions Judge, Faridabad on a charge for offence punishable under Sections 333/506/353 IPC and was awarded two years' RI and fine of Rs. 500/- or in default of payment thereof, to further undergo one month's RI on the first count. He was awarded one year's RI on the second count. No separate sentence was awarded for offence under Section 353 IPC, in view of awarding the sentence under Section 333 IPC. Both the substantive sentences were ordered to run concurrently. Feeling aggrieved against the orders of conviction and sentence, the appellant has come up in appeal.
2. In brief, the facts of the prosecution case are that injured Bhagwan Dass Sharma PW4 was posted as Shift Engineer in 15 M. W. Plant of Thermal Power House, Faridabad. Rajinder Dutt accused was previously employed as Shift Attendant on this plant under the injured but was transferred from there to Coal Handling Plant. The accused suspected the injured to be instrumental in his transfer. On 3-10-1985 Bhagwan Dass Sharma had to resume his duties from 2 P.M. to 10 P.M. He arrived on the premises of Thermal Power House at about 1.45 p.m. and was proceeding towards the power house after parking his Moped at the stand, when he reached beyond the Chief Engineer's office, the accused arrived there and threatened to kill him due to transfer. Mr. Sharma retraced his steps and tried to escape towards the office of the Chief Engineer. However, the accused over took and gave him two blows on his left shoulder with hockey stick. Ashok Kashyap, Assistant Engineer had also seen the occurrence. The accused managed to escape along with hockey stick. Bhagwan Dass Sharma rushed to the office of Chief Engineer and apprised him of this matter. The Chief Engineer in turn sent report Ex. P.C. to the Station House Officer/ in charge of Police Station, Mujesar, Faridabad about this incident on the basis of which formal F.I.R. Ex. PD was registered by S I Udey Singh on the same day at 3.50 P.M. A case under Section 323/506 IPC was registered against the accused. He also got the injured medically examined from Dr. A. K. Saxena PW 1, who found two contusions on the left shoulder of the injured. Injury No. 1 was kept under observation subject to X-ray examination while injury No. 2 was declared simple.
3. Sub-Inspector Udey Singh also visited the spot and prepared rough site plan Ex. PU. On X-ray examination, Dr. D.B. Chakarwarti PW 2 found the fracture of acromion process of the left shoulder. Injury No. 1 was declared grievous in nature. The offence was converted to one under Sections 333/506/353 IPC. After completion of investigation, the accused was arraigned for trial on such like allegations.
4. Before the trial Court, in order to prove its above-referred case, the prosecution examined seven witnesses. Bhagwan Dass Sharma injured and Ashok Kashyap supported the above referred ocular version.
5. The version of the accused before the trial Court in his statement recorded under Section 313 of the Code of Criminal Procedure was that of innocence and false implication contending that the injured was not competent to transfer him as only Superintending Engineer could have done so. The accused-appellant, however, led no evidence in defence despite being called upon to do so.
6. The trial Court believing the prosecution version convicted and sentenced the appellant, as referred above.
7. I have heard the learned counsel for the parties besides perusing the record.
8. There is considerable force in the contention of Mr. Majithia, learned counsel for the appellant that the appellant has not committed any offence punishable under Section 353 IPC and that the provisions of Section 333 IPC are not attracted in this case as admittedly, Mr. Bhagwan Dass Sharma PW 4 has yet to resume his duties as Engineer at Thermal Plant at 2 PM whereas the occurrence took place at 1.45 P.M. while he was on his way to Thermal Plant. The provisions of Section 353 IPC read as under:-
'353 Assault or criminal force to deter public servant from discharge of his duty:'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 as such public servant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.'
A bare glance through the same leaves no doubt that the assault or intimidation to the public servant must be with an intent to prevent or deter that person from discharging his duty as such public servant. In the case in hand, Mr. Sharma was simply proceeding to Thermal Plant for resuming his duty and thus, it cannot be said that Rajinder Dutt accused had assaulted him during the execution of his duty. The observations of Kerala High Court in Richard Saldana v. State, AIR 1960 Kerala 200 : (1960 Cri LJ 828) can be referred with advantage in this regard. In that case, a Co-operative Extension Officer while proceeding to his headquarters after attending a meeting of a Co-operative Society was assaulted at a bus stop. Under these circumstances, it was held that he was not assaulted during the discharge of his duties.
9. The Gauhati High Court in Suresh Narayan Roy v. State of Arunachal Pradesh 1978 Criminal Law Journal 1514 had also taken a similar view by holding that the assault committed on a public servant due to personal grudge would not be covered by the provisions of Section 353 IPC.
10. The observations of the Apex Court in Manumiya v. State of Gujarat, AIR 1979 Supreme Court 1706 : (1979 Cri LJ 1384) are not attracted to the facts of the case in hand as therein the bus driver was assaulted while standing beside the bus and under these circumstances it was held that he was discharging his duties when assaulted.
11. Consequently, the appellant is acquitted of the charge under Section 353/333 IPC but he would certainly be guilty of the offence of having voluntarily caused grievous hurt to Bhagwan Dass Sharma punishable under Section 325 IPC as the evidence of Dr. D.B. Chakarwarti PW2 reveals that on x-ray examination, acromion of the left shoulder was found fractured. The non-framing of the charge under Section 325 IPC would be of no consequence as it is minor offence of the same kind for which deterent sentence is provided under Section 333 IPC.
12. The conviction of the appellant for offence under Section 506 IPC is also not maintainable as the alleged threats to kill the injured are not borne out by the conduct of the appellant in causing both the injuries on his left shoulder and that too with blunt weapon like hockey stick. Consequently, the mere outburst of the petitioner at the time of assault that he will kill Mr. Sharma is not sufficient to hold that it would fall within the mischief of Section 506 IPC as it cannot be said that he indulged in criminal intimidation of the injured to cause the death or grievous hurt. The substantive sentence of causing grievous hurt has been awarded to the appellant. There is no question of indicating him under Section 506 IPC on mere threats to cause grievous injury. Thus, the appellant also stands acquitted of the charge under Section 506 IPC.
13. The question then arises whether it is a fit case where the appellant should be given the benefit of Probation of Offenders Act or of the provisions of Section 360 Cr P.C. in view of the reformatory trend of criminal penalogy, In this regard, it is noteworthy that the appellant had indulged in causing grievous hurt to his superior officer serving in the same department on the misconceived notion that the latter was instrumental in his transfer. Consequently, it is not a fit case for releasing the appellant on probation. He is, therefore, ordered to undergo sentence of one year's RI and fine of Rs. 500/- or in default of payment thereof, to further undergo one month's RI for offence punishable under Section 325 IPC. The appeal filed by the appellant stands partly accepted to the extent referred to above. The appellant is directed to surrender for undergoing the remaining period of sentence.