Nasiruddin Khan &
Ors. Vs. State of Bihar [2008] INSC 1246 (29 July 2008)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 3 OF 2001 Nasiruddin Khan and Ors.
..Appellants Versus State of Bihar ..Respondent
Dr. ARIJIT PASAYAT,
J.
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 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 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 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)
..........................................
J.
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