1. This is an appeal by Government against the acquittal of five accused persons who were charged with offences under Sections 186 and 353 of the Indian renal Code. The appeal as regards the former charge is not pressed, and we are concerned only with the offence under Section 353, Indian Penal Code.
2. The prosecution case was that P.W. 6, a P.W.D. lascar, went to enforce an agreement regarding the distribution of water for irrigation between the two villages of Gattamangalapuram and Chinnamangalapuram, which both take water from the Venkamma channel ; that, on a complaint from Gattamangalapuram people that Chinnamangalapuram people had deprived them of their agreed turn, he went to open the sluices for Gattamangalapuram, but when he went and got into the channel to open the doors,--apparently the sluices were plank sluices,--the accused set upon him and pushed him down into the channel and threatened to beat him and take away his life. The accused were tried by the Stationary Sub-Magistrate of Palakonda and acquitted. The grounds of acquittal are : first that a P.W.D. lascar is not a public servant within the meaning of Section 353, Indian Penal Code; secondly, that, even if he is, this lascar was not discharging the duties of his office at the time of the assault; and thirdly, that the Gattamangalapuram people were not entitled to water that morning. The Public Prosecutor challenges each of these three points.
3. As to the first point, we think the lower Court is clearly wrong. The definition of a public servant in Section 21 of the Indian Penal Code, in which sense of course the words are used in Section 353, includes every officer in the service or pay of Government. A P.W.D. lascar, it is clear from G.O. No. 840 W., dated the 28th March 1893, is a person carried on the regular establishment of the Public Works Department. His duties are various, he taking his orders generally from the local overseer. The accused contend that, even so, he is not an officer, and referred us to a case in Reg. v. Ramajirav Jivbajirav (1875) 12 Bom. H.C.R., 1 which restricts the meaning of the word 'Officer' to a person employed to exercise to some extent a delegated function of Government. But even that ruling extends the definition to one whose duties are immediately auxiliary to those of some one armed with authority from Government. The case, The Queen v. Nachimuthu I.L.R., (1884) Mad., 18 does not help the accused, as that was a case of a carter temporarily employed by the Public Works Department. In Nazamuddin v. Queen Empress I.L.R., (1901) Calc., 344 a Bench held that the dictum in 12 Bombay High Court Reports is too narrow and that a salt peon, whose duties were not defined but whose general duty was to carry out the orders of his superior officer, was a public servant. If then the lascar in the course of his duties was carrying out a function of Government, namely, the distribution of water from public irrigation channels--and we think he clearly was--undoubtedly he is Government for the purposes of that particular function, and is therefore a 'public servant.'
4. [ Their lordships then proceed to discuss the evidence bearing on the question, whether the lascar was acting within the scope of his duties at the time of the alleged assault, and come to the conclusion that he was :--]
5. The prosecution witnesses are agreed that accused 1 and 2 pushed the lascar down and that accused 3, 4 and 5 threatened him with sticks. There is no reason to disbelieve these witnesses, especially the independent evidence of the lascar, who has no motive for complaining falsely against the accused. Accused 1 and 2 have attempted to prove an alibi but the evidence is much too vague for proof. We are satisfied that all these accused did use criminal force to the lascar who is a public servant while he was acting in the discharge of his duties. They have therefore committed an offence under Section 358 of the Indian Penal Code. We therefore reverse the acquittal of these accused and convict them of an offence under Section 353 of the Indian Penal Code.
6. As regards the sentence, in view of the long delay in presenting the prosecution case, and the time which has now elapsed since the offence, a heavy sentence is not called for, particularly as this case had been brought up chiefly as a test case in order to obtain a ruling as to the legal position of P.W.D. lascars. We think it is sufficient to impose a fine of Rs. 20 each on the accused ; and do so accordingly, and we direct further that, in default of payment, they will undergo simple imprisonment for two weeks.
7. Two weeks time after receipt by the lower Court of this judgment will be granted to the respondents within which to pay the fine in the lower Court.