The court clarified that for a conviction under Sections 332 and 353 IPC, the assault must occur while the officer is discharging official duties, which was not established in this case.

Petitioner/accused who is convicted for the offence punishable under Section 353 , 332 and 504 of IPC is before this Court.

2. Case of the prosecution is that, on 04.05.2012, when C.W.1 was on duty near market, Madikeri at 3.10 pm, the accused was quarreling with other auto drivers, C.W.1 who is the Traffic Police went and pacified them. Again the accused started quarreling with the auto driver, and when C.W.1 went to pacify the quarrel, at that time accused abused him in filthy language and stated that he being a traffic police had no business to interfere.

The accused continued to quarrel, and behaved indecently, and C.W.9 who was also on duty came, and told to take the accused to station, at that time, while he was taking the accused with the help of auto drivers in an auto towards the station, the accused slashed a blade and assaulted with blade on the right wrist of C.W.2 on two occasions causing bleeding injuries.

3. The prosecution to prove its case, examined P.W.1 to P.W.11 and exhibited documents at Ex.P1 to P15 and marked material object at M.O.1-blade. The trial Court after appreciating the evidence on record held that the prosecution has established the guilt of the petitioner/accused beyond all reasonable doubt, and passed the judgment of conviction and order of sentence which was confirmed by the Appellate Court. Against which, the present revision petition is filed.

4. Heard the learned counsel for the petitioner and the learned HCGP for respondent-State.

5. P.Ws.2, 3 and 4 who are witnesses to the alleged incident, turned hostile and nothing was elicited in the cross- examination to prove the case of the prosecution. P.W.1 who is the injured witness supported the case of the prosecution, and nothing was elicited in his cross-examination to dis-believe his statement, and the statement of P.W.1 is corroborated by the wound certificate at Ex.P.12 which indicates that P.W.1 sustained simple injuries due to the assault made by the petitioner/accused.

P.W.6 who was also on duty as traffic Police and witnessed to the incident has supported the case of the prosecution. The statement of injured witness P.W.6 and wound certificate clearly establishes that P.W.1 sustained simple injuries due to the assault made by the accused.

6. Admittedly, P.W.1 was patrolling the area in which the incident had taken place as traffic Police and not to maintain law and order. Therefore, the allegation that the petitioner/accused wrongfully restrained P.W.1 from discharging his official duties is without any substance. Therefore, the assault made by the petitioner on P.W.1 was not during the course of discharging his official duties and petitioner cannot be convicted for the offence under Sections 332 and 353 of IPC , but, however is liable to be convicted for the offence under Section 323 of IPC .

7. The petitioner was in judicial custody for five days, and the incident is of the year 2012 and after long passage of time if the petitioner is sentenced to undergo imprisonment, it would cause miscarriage of justice and as such the order of sentence is confined to the imprisonment already undergone by the petitioner/accused.

Accordingly, I pass the following:

ORDER i.

Criminal Revision Petition is allowed-in- part.

ii.

The impugned judgment and order of sentence dated 29.11.2014 passed by the Principal Civil Judge and JMFC, Madikeri in C.C.No.1149/2012 and the judgment dated 11.05.2016 passed by the I Additional District and Sessions Judge, Kodagu at Madikeri in Crl.A.No.79/2014 is hereby modified as follows:

a.

The petitioner is acquitted of the offences under Sections 332 and 353 of IPC b.

The petitioner/accused is convicted for the offence punishable under Sections 323, 504 of IPC and he is sentenced to undergo simple imprisonment for the period which is already undergone, and to pay fine amount of Rs.5,000/- for each of the offences, in additional to fine amount already deposited by the petitioner/accused.

c.

The fine amount to be deposited to be