IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 72 of 2002 Date of decision : October 15, 2008 Manohar Singh …Petitioner Versus State of H.P. …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. B.S Chauhan, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. A.G. with Mr. P.M. Negi, Dy. A.G. Surjit Singh, Judge (Oral) Revision petitioner is aggrieved by his conviction and sentence for offences punishable under Sections 353 and 332 IPC by the Learned Chief Judicial Magistrate, Shimla and the judgment of the Learned Additional Sessions Judge, Shimla whereby his appeal against the said judgment of conviction and sentence passed by the Learned Chief Judicial Magistrate, Shimla, has been dismissed. 2. Allegations on which the revision petitioner was tried for the aforesaid offences and ultimately, convicted and sentenced may be noticed. On 6th January 1996, PW1 Jai Singh working as Inspector with the Himachal Road Transport Corporation went towards Junga in connection with checking Whether reporters of the local papers may be allowed to see the judgment? …2… of tickets of passengers. He checked the tickets of the passengers of Bus No. HP-07-1097. The bus stopped at Junga. PW1 Jai Singh deboarded the bus and started making a note on the way bill available with the conductor of the bus, namely, PW2 Shri Hira Singh. In the meanwhile, revision petitioner appeared and asked PW1 Jai Singh, Inspector as to why he had charged penalty equivalent to ten times the value of the ticket plus the value of the ticket earlier in the day when he was doing checking in another bus. Thereafter, the revision petitioner allegedly assaulted said Jai Singh PW1. He slapped him on his face and kicked him. As a result of the beating given by the revision petitioner, Jai Singh PW1 sustained two simple injuries. Matter was reported to the police. A case was registered against revision petitioner, under Sections 353 and 332 IPC. Jai Singh was got medically examined. Two injuries, namely, a contusion on a leg and swelling of index finger of one of the hands were noticed. 3. Learned Chief Judicial Magistrate charged the revision petitioner with both the offences. Revision petitioner pleaded not guilty. On the conclusion of the trial, revision petitioner was found guilty of both the offences and sentenced to undergo three months rigorous imprisonment for offence, under Section 353 IPC and six months rigorous imprisonment and fine of Rs. 500/- for offence, under Section 332 IPC and in default of payment of fine he was ordered to undergo imprisonment for a further period of two months. …3… 4. Revision petitioner appealed to the Sessions court against the aforesaid judgment of Learned Chief Judicial Magistrate. Learned Sessions Judge dismissed the appeal vide judgment dated. 1st May, 2002. Revision petitioner then filed the present petition in this Court, which was admitted on 20th May, 2002. 5. I have gone through the record and heard the Learned counsel representing the revision petitioner. Submissions made by the Learned counsel for the revision petitioner are two fold. In the first instance, it is submitted that the evidence on record does not prove that PW1 Jai Singh had been lawfully discharging the duties of an Inspector at the relevant time. The second argument is that the evidence on record does not prove the allegation that injuries were caused to PW1 Jai Singh by the revision petitioner. 6. Elaborating the first limb of his argument, Learned counsel has submitted that no doubt document Ex.PW4/B proves that Jai Singh PW1 was employed as Inspector with HRTC at the relevant time, but from the evidence led by the prosecution itself, it is clear that at the relevant time he was member of a flying squad and admittedly flying squad was not doing any checking role at the spot, when the incident is alleged to have been taken place. He has drawn the attention of the court to the testimony of PW1 Jai Singh himself. In the opening part of his testimony PW1 Jai Singh stated that he was posted as a member of the flying squad at the relevant …4… time. Learned counsel submits that when Jai Singh PW1 was the member of the flying squad how could have he been discharging the duties single handedly, at the relevant time. He submits that some special authorization in favour of PW1 Jai Singh for checking the tickets of passengers, single handedly, was required to be proved. Admittedly, no document has been proved on record suggesting that the Incharge of the flying squad had authorised PW1 Jai Singh to do the checking without being a member of the flying squad. No doubt, PW1 Jai Singh and PW2 Hira Singh, conductor of the bus stated that checking of the tickets of the passengers had been done by PW1 Jai Singh, but in the absence of any written order authorizing PW1 Jai Singh to do the checking single handedly, when he was posted as a member of flying squad, it cannot be said to have been legally proved that Jai Singh was in fact authorised to do the checking at the relevant time and if it is so, he cannot be said to have been performing his duties as a public servant, at the relevant time. Of course PW1 Jai Singh stated that he was authorised by the Incharge of the squad to do the checking, but letter or order of authorization has not been proved. 7. PW1 Jai Singh stated that he was assaulted on account of his having charged penalty from the revision petitioner when the latter was found travelling without a ticket and that the revision petitioner had questioned his authority to charge penalty before assaulting him but his testimony to …5… this effect is not corroborated by PW2 Hira Singh, the conductor of the bus. Also, no documentary evidence with regard to the charging of penalty from the revision petitioner by PW1 Jai Singh has been adduced. 8. In view of the above state position, it cannot be said that Jai Singh PW1 was in fact discharging his duties as public servant, at the relevant time or he was assaulted and voluntarily caused injuries on account of his having done something in the discharge of his duties, as public servant. 9. However, the evidence on record does prove that the revision petitioner voluntarily caused hurts to PW1 Jai Singh. Jai Singh, while in witness box, testified that he was slapped and kicked by the revision petitioner. PW2 Hira Singh corroborated his testimony. He stated that revision petitioner hit PW1 Jai Singh on his leg with a kick blow. Oral testimony of PW1 Jai Singh and PW2 Hira Singh is corroborated by the medico legal evidence comprising of the testimony of PW3 Dr. Ashok Thakur and the Medico Legal Report Ex.PW3/A, per which a contusion was noticed on one of the legs of Jai Singh. As a result of the above discussion, appeal is partly accepted. Conviction and sentence of the revision petitioner for offences, under Sections 353 and 332 IPC are set aside. Instead, he is convicted of the offence, under Section 323 IPC. Matter being very old, it is felt that sending the revision petitioner to jail for the offence, under Section 323 IPC will be too harsh for him especially when he is a first offender. …6… Consequently, he is released after admonition, under Section 3 of the Probation of Offenders Act. Revision petition is disposed of accordingly. October 15, 2008 (vs) ( Surjit Singh ), J