The provisions of Section 353 IPC require 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.

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. 500.00 or in default of payment thereof, to further undergo one months RI on the first count. He was awarded one years 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 PW 4 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 Engineers 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