Nasiruddin Khan & Ors vs State Of Bihar

1. Challenge in this appeal is to the judgment of a learned

Single Judge of the Patna High Court upholding the conviction

of the appellant No.1 for offence punishable under Section 304

Part II of the Indian Penal Code, 1860 (in short the `IPC') and

sentence of 5 years and the other two appellants who were

convicted for offence punishable under Section 323 IPC and

were sentenced to undergo rigorous imprisonment for one

year.

2. Prosecution version as unfolded during trial is as follows:

As per the Fardbeyan of Murtaza Khan (Ext.3), on

6.10.1981 at about 11.30 the informant was fixing pegs on his

own sahan land to keep maize crops. Suddenly accused

persons Nasiruddin Khan, Lajim Khan and Mehmood Khan

came there and protested to the act of fixing of the pole. The

informant replied that he was fixing the pegs on his own

sahan and, therefore, there was no question of any protest. He

also asked the accused to get the land measured to ascertain

whether the peg was being fixed on the land of the latter or on

his own land. But Nasiruddin Khan, Lajim Khan and

Mehmood Khan announced that the informant will not heed to

reason and, therefore, he should be assaulted. Thereafter,

accused Majiruddhin Khan brought a bhala and Qayamuddin

Khan and Sadruddin khan brought lathis. Majiruddin handed

over the bhala to Nasiruddin khan and went back to bring

another bhala. Lajim Khan also brought a lathi from his home.

Thereafter, informant's brothers Salam Khan, Farman Khan

2 and Kalam Khan sons of Munshi Khan appeared there and

asked the accused persons not to indulge in assault. In the

meantime, informant's brother Kalam Khan was subjected to

assault with bhala by Nasiruddin khan hitting him on the

right temporal region. Subsequently, Nasiruddin Khan stood

there with bhala in his hand and Sadruddin Khan,

Gayamuddin Khan and Lajim Khan assaulted Kalam Khan,

Salam Khan and Farman Khan as also Munshi Khan. When

the villagers gathered, the accused persons made good their

escape. The injured Kalam Khan was brought to the hospital,

where the informant gave his fardbeyan.

The trial Court on the basis of the evidence of nine

witnesses found the accused guilty and sentenced them as

afore-noted. In the appeal, the views of the Trial Court were

affirmed.

3. Learned counsel for the appellants submitted that the

appellants exercised the right of private defence and,

therefore, no offence was committed. Additionally it is

3 submitted that occurrence took place on 6.10.1981 and,

therefore, in case of appellant No.1 the sentence should be

reduced to the period already undergone. In case of other two

appellants the provisions of Section 360 of the Code of

Criminal Procedure, 1973 (in short `Cr.P.C.') should be

applied.

4. Learned counsel for the State on the other hand

supported the judgments of the trial Court and the High

Court.

5. The trial Court and the High Court found that this is not

a case where it can be said that the appellants were exercising

the right of private defence. The plea taken was that the

accused persons also suffered injuries and, therefore, the

defence version of false implication and exercise of right of

private defence should be accepted. The High Court noticed

that the injuries on the accused persons were superficial in

nature. After analyzing the evidence, the trial Court and the

High Court have found that there was no question of

4 exercising the right of private defence. The trial Court and the

High Court with reference to the evidence on record found that

the so-called injury on Nasiruddin has to be viewed with

suspicion. Although Nasiruddin claimed and alleged that he

had sustained bhala injury, the injury report (Ex.B) discloses

that the injury found on him by the Doctor indicated that the

accused had suffered injury by hard blunt substance and the

injuries were simple. Therefore, the High Court's judgment so

far as the conviction and sentence of appellant No.1 is

concerned is affirmed. However, considering the long passage

of time and the period of sentence imposed, we think it

appropriate to extend to appellants Nos.2 and 3 the benefits of

Section 360 Cr.P.C. on entering into bonds of such amount as

may be fixed by the learned trial Judge. Appellant No.1 shall

surrender to custody forthwith to serve remainder of sentence.

6. The appeal is disposed of accordingly.

..........................................J. (Dr. ARIJIT PASAYAT)

5 ..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 29, 2008

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