This is an appeal by Government against the acquittal of five accused persons, who were charged with offences, under Sects. 186 and 353 of the Indian Penal Code. The appeal, as regards the former charge, is not pressed, and we are concerned only with the offence under Sect. 353, Indian Penal Code.

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 Sect. 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.

As to the first point, we think the lower court is clearly wrong. The definition of a public servant in Sect. 21 of the Indian Penal Code, in which sense, of course, the words are used in Sect. 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 P.W.D. 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 (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 reported in The Queen v. Nachimuttu and others (I.L.R., 7 Mad., 18) does not help the accused, as that was a case of a carter temporarily employed by the P. W. D. In Nazamuddin v. Queen-Empress (I.L.R., 28 Cal., 344) [LQ/CalHC/1900/106] , a Bench held that the dictum in Reg v. Ramajirav Jivbajirav (12 Bom. H.C.R., 1) 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 channelsand we think, he clearly wasundoutedly he is Government for the purposes of that particular function, and is therefore a public Servant.

The next question is whether he was acting within the scope of his duties. It is argued for the accused and apparently accepted by the lower court, that, because there was an agreement between the villagers, as to the periods within which each should take water, therefore, it was no business of the lascar to see that this agreement was carried out; that is, the accused pleaded that in effect, Goverment had handed over their duties in this matter to the villagers themselves. The lower Court seems to base this view on Exhibits A and F. Exhibit A. is simply a note by the Sub-Divisional Officer, laying down the terms of the agreement and bearing the signatures of representative villagers. There is nothing in it, or in the evidence to indicate that the charge of the distributing mechanism, the plank sluices, was taken away from the P.W.D. authorities and handed over to any villager. Ex. F is merely a note to the village munsifs that the new arrangement is to come into force from a particular Sunday. It is notable that in Exhibit F, there is no direction to the village munsifs themselves to carry out the arrangement. The accused did not and cannot, before us, suggest who was put in charge of this distribution, if the P.W.D. subordinates were superseded. It is perfectly clear then that the duty of distribution was not given away to any one else, by the P.W.D. and this is also borne out by the evidence. P.W. 1, the Overseer, says that P. W. 6s duty was to regulate the distribution of the Venkamma channel, water, which at the time of the offence, was to be distributed between the two villages, according to the agreement in Ex. A. Not a single question was put to him, in cross, examination, to suggest that the distribution business had been taken away by him, from his subordinate and handed over to any non-official. We are satisfied that the lower court is quite wrong in concluding that P.W. 6, in regulating the distribution of water at the time of the offence, was not acting within the scope of his duties.

The third point, it appears to us, has been found by the lower court, in favour of the accused, on an entire misapprehension of facts. Under the arrangement in Ex. A, the week was divided as follows; 2 days for Chinnamangalapuram, 1 for hamlet of Chinnamangalapuram, and 3 days to Gattamangalapuram, and the turn was to commence on Sunday the 13th May. The lower court assumes that Chinnamangalapuram was to begin the week and on this assumption calculates that it was the turn of Chinnamangalapuram, on the day of the offence, 17th June, 1923 and therefore, the lascar had no right to give water to Gattamangalapuram on that day: but the Sub-Magistrate has entirly overlooked the evidence that Chinnamangalapuram had previously deprived Gattamangalapuram of two of its three days water in the week and that that was the very reason why the lascar had to go and alter the distribution. It is preposterous for Chinnamangalapuram to contend that, although they had stolen two of Gattamangalapurams days, they were yet entitled to keep their own day as well, on the principle of heads win and tails you lose. The lascars obvious duty was to see that Gattamangalapuram got their three days water in the week, whatever week-days those three days might be, when the wrongful action of the other party had disarranged the weekly order. The soundness of the Sub-Magistrates finding that, because Gattamangalapuram got water given them by the overseer on his visit on 12th June 1923, therefore, their turn expired on 15th Ju ne 1923. depends entirely on whether Gattamangalpuram gat water on the 13th and 14th, after the Overseer left, a point with which he nowhere deals and on which evidence is all to the contrary.

The prosecution witnesses, villagers, are probably going too far, when they claim that the days for Gattamangalapuram were Sunday, Monday and Tuesday: but the real question is whether they were not entitled to water on that particular Sunday: and all are agreed that, for three or four days prior to that day, Chinnamangalapuram had deprived the of water, and that they had none. The defence answer to the charge, namely, that there was no agreement at all, really makes their case so much the worse, because then there can be no doubt that the P.W.D. were in charge. Their plea that Gattamangalapuram is not entitled to any water, unless there is enough to carry water over the dam No

. (1) in no answer at all, in the face of the agreement, Ex. A, and it merely indicates that Chinnamangalapuram people were suffering from a guilty conscience in the matter.

We are, therefore, satisfied that it was the lascars duty to distribute water to Gattamangalapuram on that Sunday and that he was doing so when the accused interfered.

The prosecution witnesses are agreed that accused 1 and 2 pushed the lascar down and that accused 3, 4, and 5 threatend him with sticks. There is no reason to disbelieve these witnesses, especially the independant 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 Sect. 353 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.

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 on each of the accused; and do so accordingly and we direct further that, in default of payment, they will undergo simple imprisonment for two weeks.

Two weeks time after receipt by the lower court of this judgment, will be granted to respondents, within which to pay the fine in the lower Court.