Case Note & Summary
In 1995, a police head constable, Mohammad Khan Pathan, and other police personnel from Itwara police station, Nanded, were ordered by Police Inspector Mandhane to arrest the appellant, Sk. Khaja, in connection with a complaint filed by Kamalbai Gupta and others alleging that the appellant was demanding ransom and threatening the public. On 11.3.1995, acting on information, the police party went to Ram Rahim Nagar, Nanded, to apprehend the appellant. Upon seeing the police, the appellant fled and entered a mosque in Madina Nagar. The police party, including the complainant, chased and entered the mosque to arrest him. The complainant alleged that when he attempted to arrest the appellant, the appellant attacked him with a Gupti, striking his right shoulder. The appellant was overpowered and arrested, and the Gupti was seized. A crime was registered under Sections 307 and 353 of the Indian Penal Code and Section 135 of the Bombay Police Act. After investigation, a charge sheet was filed, and the case was committed to the Sessions Court. The Third Additional Sessions Judge, Nanded, in Sessions Case No. 183 of 1996, convicted the appellant under Sections 307 and 332 IPC and Section 135 of the Bombay Police Act on 31.3.1999. The appellant challenged the conviction by way of Criminal Appeal No. 162 of 1999 before the Bombay High Court, Aurangabad Bench. The appellant argued that the arrest was illegal as no complaint was registered and no direction was given by the superior officer, that the injury was simple and could have been caused by a fall, and that the prosecution failed to prove an intention to kill, relying on D. Chattaiah vs State of A.P. and Sarju Prasad vs State of Bihar. The respondent supported the conviction. The High Court heard the matter and perused the evidence. The judgment provided does not contain the final order or reasoning, and hence the decision and ratio decidendi are not available from the text.
Issue of Consideration
Whether the conviction under Sections 307, 332 IPC and Section 135 of Bombay Police Act is sustainable in the absence of evidence of intention to kill and without legal sanction for arrest
Law Points
- Section 307 requires intention to kill and injury on vital part
- simple injury cannot sustain attempt to murder charge
- action by police without registration of complaint or direction from superior officer cannot be deemed as legal duty under Section 332 IPC
- ingredients of Section 307 must be inferred from circumstances
Case Details
2011 LawText (BOM) (01) 24
Criminal Appeal No. 162 of 1999
Mr. H.F. Pawar, advocate h/f Mr. A.H. Kapadia for appellant, Mr. V.G. Shelke, A.P.P. for respondents
The State of Maharashtra and Mohammedkhan s/o Nisar Ahmed Pathan
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Nature of Litigation
Criminal Appeal against conviction
Remedy Sought
The appellant seeks setting aside of the conviction and acquittal from all charges.
Filing Reason
The appellant was convicted by the Sessions Court and filed the present appeal challenging the judgment and order of conviction.
Previous Decisions
The 3rd Additional Sessions Judge, Nanded, in Sessions Case No. 183 of 1996, convicted the appellant under Sections 307, 332 IPC and Section 135 of the Bombay Police Act on 31.3.1999.
Issues
Whether the prosecution proved that the accused intended to kill the complainant P.W.2 under Section 307 IPC when the injury was simple and caused by the blunt side of a Gupti.
Whether the arrest of the appellant was legal and in pursuance of any legal duty to attract Section 332 IPC.
Whether the conviction under Section 135 of the Bombay Police Act is sustainable.
Submissions/Arguments
Appellant argued that the arrest was illegal as no complaint was registered and no direction was given by superior officer, thus no legal duty existed.
Appellant contended that the injury was simple and could have been caused by a fall, and there was no intention to kill.
Appellant relied on D. Chattaiah vs State of A.P. and Sarju Prasad vs State of Bihar to argue that ingredients of Section 307 were not met because the injury was not on a vital part and there was no intention to cause death.
Respondent argued that the Sessions Court's findings were based on evidence and the appeal should be dismissed.
Judgment Excerpts
When I was trying to arrest the accused Shaikh Khaja he attacked on me and assaulted me by Gupti. I received blow of Gupti on my right shoulder.
In the month of March, 1995 the provisions of Section 37 of Bombay Police Act were in force throughout Nanded district.
The injury is simple and possible due to fall on hard and rough surface or object.
Procedural History
On 10.3.1995, Kamalbai Gupta and others filed a complaint against appellant at Itwara police station. Police searched for appellant on 10.3.1995 but could not find him. On 11.3.1995, acting on information, police party located appellant at Ram Rahim Nagar; he fled into a mosque where he allegedly assaulted Head Constable Mohammad Khan Pathan with a Gupti. Crime No. 45/1995 was registered under Sections 307, 353 IPC and Section 135 Bombay Police Act. Investigation was conducted, charge sheet filed, and case committed to Sessions Court. Sessions Case No. 183/1996 was tried by 3rd Additional Sessions Judge, Nanded. On 31.3.1999, the Sessions Court convicted appellant under Sections 307, 332 IPC and Section 135 Bombay Police Act. Appellant filed Criminal Appeal No. 162 of 1999 before Bombay High Court, Aurangabad Bench.
Acts & Sections
- Indian Penal Code, 1860: 307, 332, 323, 300
- Code of Criminal Procedure, 1973: 235
- Bombay Police Act, 1951: 135
