Holding

The Supreme Court affirmed the conviction of appellant No.1 under IPC Section 304 Part I and upheld his sentence, while granting Section 360 CrPC relief to appellants Nos.2 and 3.

Summary

The appellants attacked an informant and his brothers with weapons over a land dispute, causing injuries that led to a police complaint. They claimed they acted in private defence, but the trial court convicted one appellant under IPC Section 304 Part I (culpable homicide not amounting to murder) and the other two under IPC Section 323 (voluntarily causing hurt), sentencing them to five years and one year respectively. The High Court affirmed these convictions, noting the injuries to the accused were superficial and the claim of private defence was unsubstantiated. The Supreme Court upheld the conviction and sentence of appellant No.1, finding the injury report suspicious, but, considering the elapsed time, granted the benefit of Section 360 of the CrPC to appellants Nos.2 and 3 on condition of a bond. Appellant No.1 was ordered to surrender to serve the remainder of his sentence, and the appeal was disposed of.

Issues considered

Whether the accused were justified in invoking the right of private defence
Whether the evidence supports convictions under IPC Section 304 Part I and Section 323
Whether the benefit of Section 360 of the CrPC can be extended to the convicted appellants

Legislation cited

Code of Criminal Procedure, 1973s. 360
Indian Penal Code, 1860s. 304 Part I, s. 323

Subjects

private defenceculpable homicide not amounting to murderassaultIPCCrPCSection 360probationconvictionsentencinginjury evidence

Judgment

[2008] 11 S.C.R. 426

A NASIRUDOIN KHAN AND ORS.
'i· .,.
v.
STATE OF BIHAR
(Criminal Appeal No. 3 of 2001)
JULY 29, 2008
~ ...· .
s·~
[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 - How- >--.
ever, 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 Crimi-
nal Procedure, 1973 - S.360 - First offender - Releas~ on ;

probation of good conduct. - · ~
~
According to the prosecution, on the fateful day,
a
there arose 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
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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 ana- c
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 dis-
closes that the injury found on him by the Doctor indi-
cated that he 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 appel- E
lant No.1 is concerned is affirmed. However, considering
the long passage of time and the period of sentence im-
posed, 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. F
~ (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.
H
428 SUPREME COURT REPORTS [2008] 11 S.C.R. t
..-
~
A Gopal Singh, Manish Kumar and Vimla Sinha for the Re- •
'
spondent.~

The Judgment of the Court was delivered by
r!
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 t
'
appe_IJants who. were convicted for offence punishable under
c Section~3,23 I.PC and were sentenced to undergo rigorous im- .,
prisonme~t fo_r pne year. L
'{

.~

r
:;2. Prosecution version as unfolded during trial is as fol-
·1ows: .-,.. ' · · · ·

As per the Fardbeyc;i.n of ,Murtaza Khan (Ext.3}, on
Q
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-
mant replied that he was fixing the pegs on his own sahan and,
,•
l

E ,,
\
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\-
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 ,.,....
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,
H Nasiruddin Khan stood there with bhala in his hand and t"'
r

I-
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 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, there- c
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
D
(in short 'Cr.P.C.') should be applied.
~
4. Learned counsel for the State on the other hand sup-
ported 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
E
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 F
-.,;*<
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 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 in-
jury by hard blunt substance and the injuries were simple. There-
fore, the High Court's judgment so far as the conviction and H
I-

430 SUPREME COURT REPORTS [2008] 11 S.C.R.

A 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 · ·
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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