IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 3 OF 2001

Nasiruddin Khan and Ors. ..Appellants

Versus

State of Bihar       ..Respondent

J U D G M E N T

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

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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

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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

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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)

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……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, July 29, 2008

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