The South Goa Sessions Court on Thursday released Nuvem MLA Mickky Pacheco on admonition under the Probation of Offenders Act after convicting him for simple hurt under section 323 of the IPC in the Electricity Junior Engineer Kapil Natekar assault case, but acquitted him of the offence under Section 353 of the IPC for assaulting a public servant while discharging official duties.
Pronouncing her order in the open court on Thursday noon, Additional Sessions Judge, Vijaya Pol first acquitted Mickky of the offence under Section 353 of the IPC for assaulting a public servant while discharging duties, but convicted him under Section 323 of the IPC for simple hurt. “Taking into consideration the fact that the Public Prosecutor conceded there is no prior conviction against the accused and the fact that the offence is of simple hurt and the directions issued by the Bombay High Court that Probation of Offenders Act should be applied in such cases, the accused is released on admonition under Section 3 of the Probation of Offenders Act,” Judge Pol said in her order.
During arguments on the point of sentence under Section 323 of the IPC, Mickky’s lawyer Adv Amit Palyekar submitted that the Court may apply provisions of the Probation of Offenders Act since there’s no previous conviction against the MLA and taking into account that the Court has convicted him only under Section 323 of the IPC.
On the other hand, Public Prosecutor Subhash Dessai conceded there is no prior conviction against the accused and the sentence befitting the crime be imposed on the accused.
Meanwhile, Judge Vijaya Pol observed in her order that the judgment convicting Mickky under Section 353 of the IPC suffers from illegality, incorrectness and impropriety. “Section 353 of the IPC is not attracted in the instant case, but only Section 323. Hence, the accused is acquitted of the offence under Section 353 of the IPC and is convicted of the offence under Section 323 of the IPC,” she observed.
While acquitting Mickky of the charges of Section 353 of the IPC, Judge Pol observed that it is not known in the entire deposition of the complainant why the Agriculture Minister had called the electricity junior engineer in his office. “There is nothing on record to show that the calling of the junior engineer in the minister’s office had any reasonable or even remote connection with the official duty of the ministry. There is nothing on record to suggest for what purpose the junior engineer was called by the accused in his office,” Judge Pol observed. “When there is absolutely nothing on record even to suggest as to why the Agriculture Minister had called the electricity junior engineer in his office, the mere act of orally calling the staff of another department in his office does not assume the nature of official duty or purported official duty,” the Judge said, adding “it is significant to note that the minister did not send in writing any official communication to the electricity department, officially calling the Junior engineer in his office on July 15, 2006”.
The Judge, however, said that evidence on record proves beyond reasonable doubt that the accused slapped the electricity department junior engineer after calling him in his office. [H]