[2008] 11 S.C.R. 426

NASIRUDOIN KHAN AND ORS. 'i .,.

STATE OF BIHAR (Criminal Appeal No. 3 of 2001)

s~

JULY 29, 2008

~ ... .

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM r

SHARMA, JJ .. ]

- Penal Code, 1860; Ss. 304 Part~//. and s. 323: c Culpable homicide not amounting to murder and assault

- Accused attack deceased with weapons and injured him - Right of private defence - Exercise of- Trial Court found them guilty of committing offences punishable u/s. 304 Pt. I ands. 323 /PC and sentenced them accordingly-Affirmed by High Court D - Correctness of - Held: Injuries suffered by accused simple and superficial in nature - Hence, High Court's judgment, so

>--. far as accused appellant No.1 is concerned, affirmed - However, in case of other accused persons, benefit of s. 360 Cr PC. extended to them on executing the bonds of such amount as E to be fixed by trial Judge - Directions issued - Code of Criminal Procedure, 1973 - S.360 - First offender - Releas~ on

; probation of good conduct. - ~

~ According to the prosecution, on the fateful day, there arose a quarrel between the accused persons and F the victim. Accused attacked the victim with weapons and injured him. When the villagers gathered, accused fled away. Injured was admitted to a hospital by the informant and, on the basis of his statement, complaint was lodged with the Police. Trial Court found accused persons guilty G of committing offences punishable u/s.304 Part-I and s.323

IPC, convicted and sentenced them accordingly. Appeal filed thereagainst was dismissed by the High Court.

..f- Hence the present appeal.

H 426

NASIRUDDIN KHAN & ORS. v. STATE 427

OFBIHAR -r

Accused-appellants contended that they exercised A the right of private defence and, therefore, no offence was committed; 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 and in case of other two appellants the provisions of Section 360 of B , --( the Code of Criminal Procedure, 1973 may be applied.

Disposing of the appeal, the Court ~-·

HELD: The High Court noticed that the injuries on the accused persons were superficial in nature. After anac lyzing 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 C_ourt-and the High , Court with reference to the evidence on record found that the so-called injury on 'N', one of the accused, has to be D viewed with suspicion. Although he claimed and alleged _..._ that he had sustained bhala injury, the injury report discloses that the injury found on him by the Doctor indicated that he had suffered injury by hard blunt substance and the injuries were simple. Therefore, the High Court's E 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, it would be appropriate to extend to appellant Nos.2 and 3 the benefit of Section 360 Cr.P.C. on entering into bonds of such amount as may be fixed by the trial Judge.

~ (Para - 5) [429-F-H; 430-A-B]

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal.

No. 3 of 2001

From the Judgment and Order dated 13.1.2000 of the High G 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-

~ A • ' spondent.~ r The Judgment of the Court was delivered by !

Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to B :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 ' appe_IJants who. were convicted for offence punishable under

c Section~3,23 I.PC and were sentenced to undergo rigorous im- .,

prisonmet fo_r pne year.

L '{

.~ :;2. Prosecution version as unfolded during trial is as fol- 1ows: .-,.. ' · · 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 proteted to the act of fixin.g of the pole: The inferl mant replied that he was fixing the pegs on his own sahan and, • , E \ therefore, there was no question of any protest. He also asked ,,

the ; accused to get the land measured to ascertain whether the

't= peg was being fixed on the land of the latter or on his own land. , But .Nasiruddin Khan, Lajim Khan and Mehmood Khan ant- nounced t.hf1Uhe informant will not heed to reason and, therej\- F 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 G brothers Salam Khan, Farman Khan and Kalam Khan sons of ,.,...

Mushi 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, H Nasiruddin Khan stood there with bhala in his hand and t"r

NASIRUDDIN KHAN & ORS. v. STATE 429

OF BIHAR [DR. ARIJIT PASAYAT, J.]

Sadruddin Khan, Gayamuddin Khan and LajlmKhan assaulted A 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- B . nesses found the accused guilty and sentenced them as aforenoted. 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, therec 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 provisions of Section 360 of the Code of Criminal Procedure, 1973 D

(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 E 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 versipn of false implication and exercise of right of private defence should be accepted. The High Court noticed that the inju- F 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 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 G 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 H

A sentence of appellnt No.1 is concerned is aff.irmed. However, considering the long passag~ of time and. the period of sentence 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 learnedtrial · B Judge. App-ellant No.1 shall surrender to custody forthwith to serve remainder of.sentence.

6. The appeal is disposed .of accordingly. ~

S.K.S.

Appeal disposed of.·

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