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In the High Court of Bombay at Aurangabad
S.S. SHINDE
Sk. Khaja
Versus
The State of Maharashtra & Another
CRIMINAL APPEAL NO. 162 OF 1999
Decided on : 07-01-2011
Indian Penal Code, 1860 - Sections 307 and 332-Conviction and sentence under-Accused assaulted complainant, Police Head Constable by ’Gupti’ while complainant discharging his official duty-Fact that injuries sustained by complainant simple in nature cannot be a ground for reduction of sentence as already undergone-Judgment and order convicting and sentencing accused just and proper.-Considering the nature of enquiry undertaken and the material required to be gathered regarding the circular transactions during such enquiry it is not possible to countenance the grievance of the petitioner that the delay in the enquiry was of such nature that it was oppressive and unwarranted that too qua the petitioner who is one of the co-accused. It is also not possible for Court to take the view that there was inordinate, unwarranted and oppressive delay during the enquiry as such. Accordingly, this challenge of the petitioner cannot be sustained.
Indian Penal Code, 1860 - Section 332-Conviction under-Accused assaulted a public servant-Complainant, Head Police Constable while discharging his official duty, assault by accused-Testimony of other eye-witnesses, Police Constable present on spot cannot be brushed aside as they are interested witnesses-Accused rightly convicted under 332, IPC.-Another contention of the counsel for the appellant is that the complainant and other police persons were not discharging their duties in their official capacity and therefore Section 332 of IPC is not attracted in the present case. In fact it has come in the evidence of the complainant and also other police constables i.e. PW 3 and PW 5 and other witnesses that they were in their official uniform, they were following directions given by the Investigating Officer of the said police station. Therefore, they were discharging their duties in their official capacity. The assault by the appellant accused on the complainant was while discharging his official duties, which requires to be taken very seriously and rightly the trial Court has concluded that the appellant is not only liable to be convicted under Section 307 of IPC but he is also liable to be convicted under Section 332 of IPC.
1. This appeal is filed challenging the judgment and order of conviction dated 31.3.1999 passed by the learned 3rd Additonal Sessions Judge, Nanded in Sessions Case No. 183 of 1996.
2. It is the case of the prosecution that the complainant police Head Constable Mohammad Khan, B.No. 843 was attached to police station, Itwara, Nanded in the year 1995. P.W.6 Kamalbai Gupta and 8 to 10 other persons from Vinkar colony Nanded had filed a complaint against the appellant Sk. Khaja with police station, Nanded on 10.3.1995 alleging that the accused is demanding ransom and threatening the public. Therefore, P.W.7 police Inspector, Surendra Mandhane who was police Station Officer of police station, Itwara, Nanded ordered the complainant P.W.2 to bring accused Sk. Khan in the police station for enquiry in connection with the complaint filed by P.W.6 Kamalbai Gupta and others against the accused. Complainant, P.W.2 Mohammad Khan Pathan and his colleagues namely P.W.3 Nandkumar Pande and other police staff tried to search out accused on 10.3.1995, but they could not search out the accused on that day. On 11.3.1995, at about 8.00 a.m. complainant Mohamed Khan Pathan and P.W.3 police Head Constable Nandkumar Pande received an information that accused Sk. Khaja is present in Ram Rahim Nagar, Nanded. Therefore, P.W.2 complainant Mohammad Khan Pathan, P.W.3 Police Head Constable Nandkumar Pande, P.W.5 Police Constable Suresh Jakkawad alongwith some other police constables and Home guards went to Ram Rahim Nagar, Nanded in order to caught hold the accused Sk. Khaja. After noticing the complainant and his colleagues i.e. the police staff in Ram Rahim Nagar, Nanded, accused ran away towards Madina Nagar, Nanded and entered into a Masjid at Madina Nagar. The complainant Mohd. Pathan and his colleges chased the accused and entered into the said Masjid in order to caught hold the accused. The complainant was leading to police party at that time. When complainant Mohd. Pathan was trying to caught hold accused, accused attacked on the complainant and assaulted complainant Mohd. Pathan by Gupti. The accused was intending to assault the complainant by Gupti on his head, but the complainant received the blow of Gupti on his right shoulder by avoiding the blow on his head. Thereafter, P.W.3 police Head Constable Nandkumar Pande and other police staff over powered the accused and caught hold the accused. P.W.5 police constable, Suresh Jakkawad snatched Gupti from the accused. Then the complainant and his colleges brought accused Sk. Khan to police station, Itwara, Nanded and produced him before police station Officer. In the month of March, 1995 the provisions of Section 37 of Bombay Police Act were in force throughout Nanded district. Then the complainant Mohd. Pathan lodged his complaint against the accused in the police station Itwara. On the basis of complaint filed by complainant offences punishable under Sections 305 353 of I.P.C. and offence punishable under Section 135 of Bombay Police Act came to be registered against accused vide crime No. 45 of 1995 with police station, Itwara, Nanded. It is the further case of the prosecution that P.W.7 Police Inspector Surendra Mandhane Investigated into the said crime. During the course of investigation, he visited the place of incident on 11.3.1995 and prepared panchnama of place of incident (Exh.25) in presence of the panchas in between 10.35 to 11.15 a.m. He referred the complainant police Head Constable Mohammad Khan Pathan to Civil Hospital, Nanded for medical examination. He seized the muddemal article Gupti and also arrested the accused and accordingly drew panchnama Exh.29 in presence of panchas. He recorded statements of the witnesses. After completion of usual investigation he filed present charge sheet against the accused in the Court of the 4th Judicial Magistrate, First Class Nanded.
3. Since the offence was punishable under Section 307, the same was exclusively triable by the Court of Se
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