In Re: Mahomed Yakoob

Miller, J.—The Sessions Judge has misapprehended the effect of the case, Queen-Empress v. Dalip 18 A. 246, to which he seems to refer. In that case the constable sent exceeded his authority and so could not be said to be in the execution of his duty, but the learned Judges nowhere suggest that the duty must be a particular duty imposed expressly by the law on the particular occasion. Here, in the view of the evidence taken by the Magistrate from which the Sessions Judge is not prepared to differ, the constable was employed to watch the accused. That was undoubtedly his duty at the time of the offence, and it is found that the accused knew it. The constable was not doing any thing in excess of his authority, when he was assaulted. The conviction u/s 332 should have been confirmed and I make the alteration accordingly. I am not asked to interfere with the sentence imposed by the Sessions Judge.