Nasirudoin Khan and Ors. v. State of Bihar

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to :the judgment of a learned Single Judge of the Patna High Court I t uphold!ng the conviction of the· appellant No.1 for offence pun-ishable under Section 304 Part II of the Indian Penal Code, 1860 (in short the 'IPC') and sentence of 5 years and the other two t appe_IJants who. were convicted for offence punishable under Section~3,23 I.PC and were sentenced to undergo rigorous im-prisonme~t fo_r pne year. L

:;2. Prosecution version as unfolded during trial is as fol-r Q As per the Fardbeyc;i.n of ,Murtaza Khan (Ext.3}, on

6:·1.0, 1981. at about~ 1 .30 the informant was fixing pegs on his own sahan land to .keep r:naize crops. Suddenly accused per- )>-. sons Nasiruddin Khan, Lajim .Khan and Mehmood Khan came there and prote~ted to the act of fixin.g of the pole: The infer-l mant 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. 't= But .Nasiruddin Khan, Lajim Khan and Mehmood Khan an-t- nounced t.hf1Uhe informant will not heed to reason and, there-j\- fore, he should be assaulted. Thereafter, accused Majiruddhin Khan brought a bhala and Qayamuddin Khan and Sadruddin ...... I khan brought lathis. Majiruddin handed over the bhala to L Nasiruddin khan and went back to bring another.bhala. Lajim r1 Khan also brought a lathi from his home. Thereafter, informant's brothers Salam Khan, Farman Khan and Kalam Khan sons of ,.,... Mu~shi Khan appeared there and asked the accused persons •j not to indulge in assault. In the meantime, informant's brother Kalam Khan was subjected to assault with bhala by Nasiruddin -4# khan hitting him on the right temporal region. Subsequently, Nasiruddin Khan stood there with bhala in his hand and t"r Sadruddin Khan, Gayamuddin Khan and LajlmKhan assaulted Kalam Khan, Salam Khan and Farman Khan as also Munshi Khan. When the villagers gathered, the accused persons mad~ good their escape. The injured Ka lam Khan ~as brought to the hospital, where the informant gave his fardbeyan.

The trial Court on the basis of the evidence of nine wit-nesses found the accused guilty and sentenced them as afore-noted. In the appeal, the views of the Trial Court were affirmed.

¶3Learned counsel for the appellants submitted that the appellants exercised the right of private defence and, there-fore, 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 provi-sions of Section 360 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') should be applied.

¶4Learned counsel for the State on the other hand sup-ported the judgments of the trial Court and the High Court.

¶5The 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 ac-cused persons also suffered injuries and, therefore, the defence versipn of false implication and exercise of right of private de-fence should be accepted. The High Court noticed that the inju-ries 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 pri-vate 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 in-jury by hard blunt substance and the injuries were simple. There-fore, the High Court's judgment so far as the conviction and sentence of appell~nt No.1 is concerned is aff.irmed. However, considering the long passag~ of time and. the period of sen-tence imposed, we think it appropriate.to extend to appellants Nos.2· and 3 the 'benefits of Section 3?Q Cr.P.C. on enteri_ng into bonds of such amount as may be fixed by the learned·trial Judge. App-ellant No.1 shall surrender to custody forthwith to serve remainder of.sentence.

¶6The appeal is disposed .of accordingly. ~

I-r r1 f-. ')o;..·

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal. No. 3 of 2001

From the Judgment and Order dated 13.1.2000 of the High Court of Judicature at Patna in Crl. Appeal No. 216 of 1989 (S.J.)

'l,;·· P.S. Mishra, Harshvardhan Thatagat, Shefali Jain, Sunita R. Singh and rajesh Prasad Singh for the Appellants.

Gopal Singh, Manish Kumar and Vimla Sinha for the Re-spondent.~ r