Sk. Newazuddin @ Sekh. Khan vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2015 Supreme(Pat) 718

HIGH COURT OF PATNA
I.A. ANSARI and VIKASH JAIN, JJ.
(18.5.2015)
Criminal Appeal (DB) Nos. 161, 173, 252 of 1993
Against The Judgment of conviction, Dated 02.04.1993, and The Order of Sentence, Dated 03.04.1993 passed by Shri Manohar Prasad, 1st Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 376 of 1982, Arising out of Sanshaula Police Station Case No. 46 of 1982.
Sk. Newazuddin @ Sekh. Khan
@ Sk. Uddin. & Ors. (in 161)
Sk. Sekhawat & Ors. (in 173) : Appellants
Jai Narain Singh & Ors. (in 252)
Vs.
The State of Bihar : Respondent
(in all)

Advocates:
For the Appellants : Mr. Krishna Mohan (in 161); Mr. Rama Kant Sharma (in 173); Mr. Rama Kant Sharma, (in 252).
For the Respondent: Mr. Ajay Mishra (in 252).

Headnote:Indian Penal Code, 1860–Sections 96 to 100–Right of private defence–When person claiming right of private defence has to face assailants who can be reasonably apprehended to cause death or grievous hurt, it would be open to such a person to defend himself by causing death of assailant–Exercise of right of private defence must not be vindictive or malicious–In ascertaining if a person had right of private defence in a given case, it needs to be borne in mind that when a person proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time when he is faced with assault which causes reasonable apprehension of death or grievous hurt and creates, inevitably, in his mind some excitement and confusion and, at such a moment uppermost feeling in his mind would be to ward off danger and to save himself or his property and he would be anxious to strike a decisive blow in exercise of his right of private defence–A person exercising his right of private defence, must consider whether threat to his person or his property is real and immediate–If he reaches conclusion reasonably that threat is immediate and real, he is entitled to exercise his right–In exercise of his right of private defence, he can use force necessary for the purpose and he must stop using force as soon as threat has disappeared–So long as threat lasts and right of private defence can be legitimately exercised, it would not be fair to require that he should modulate his defence step by step and according to attack before there is reason to believe that attack is over. (Paras 38 to 41)
       Indian Penal Code, 1860–Sections 302/149 and 147–Arms Act, 1959–Section 27–Murder–Common object of unlawful assembly–Right of private defence–Post mortem examinations did not reveal that any of four deceased persons had been shot at their back–Though consistent evidence adduced by prosecution is that four deceased persons were shot by bullet twice and it was second bullet injury sustained by them which resulted into their deaths, post mortem report revealed only one bullet injury being received by four deceased persons–It cannot be held that accused had no apprehension that they would be assaulted, injured and might even die inasmuch as villagers as a whole were larger in number than accused persons–Prosecution witnesses have presented a colourised version of occurrence–When concern and apprehension of risk to lives were real, accused were within ambit of their rights to defend their persons and also their property–Impugned conviction of accused-appellants and sentences passed against them by judgment under appeal set aside–Accused-appellants acquitted under benefit of doubt. (Paras 33, 47, 48, 52, 53, 55 and 56)
       Indian Evidence Act, 1872–Section 138–Examination of witnesses–When a witness is material and is required for unfolding truth of prosecution case, he ought to be examined-in-chief–Effect of a witness being tendered only for cross-examination amounts to failure of prosecution to examine the witness at trial and non-examination of such witness will seriously affect credibility of prosecution case and detract materially from its reliability. (Para 72)
       AIR 1963 SC 612; AIR 1963 SC 612; AIR 1975 SC 1674; AIR 1995 SC 1601; AIR 1971 SC 1586–Relied.

I. A. ANSARI, J.:–Under the judgment, dated 02.04.1993 passed, in Sessions Trial No. 376 of 1982, by learned 1st Additional Sessions Judge, Bhagalpur, the accused-appellants, Umesh Singh, Jai Narain Singh, Sk. Manwa @ Jamiruddin, stand convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, the accused-appellant, Deobrath Singh, stands convicted under Sections 148 and 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act, 1959, accused-appellant, Pinku Singh, stands convicted under Section 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act, 1959, accused-appellants, Jahir and Nathan, stand convicted under Section 302 read with Section 149 and 147 of the Indian Penal Code and accused-appellants, Sk. Newazuddin @ Sekh Khan @ Sk. Uddan, Sk. Makbul, Sk. Nemani, Sk. Jahir, Sk. Rustam, Sk. Salamat and Sk. Manir, stand convicted under Section 302 read with Section 149 of the Indian Penal Code. In consequence of their conviction under Section 302 of the Indian Penal Code, the accused-appellants, Umesh Singh, Jai Narain Singh and Sk. Manwa @ Jamiruddin stand, under the order, dated 03.04.1993, sentenced to suffer imprisonment for life and to suffer imprisonment for seven years each for their conviction under Section 27 of the Arms Act, 1959. While the accused-appellant, Deobrat Singh, stands sentenced to suffer imprisonment for life for his conviction under Section 302 read with Section 149 of the Indian Penal Code, he is sentenced, for his conviction under Section 27 of the Arms Act, 1959, to suffer imprisonment for seven years and also to suffer, for his conviction under Section 148 of the Indian Penal Code, imprisonment for three years. For their conviction under Section 302 read with Section 149 of the Indian Penal Code and under Section 147 of the Indian Penal Code, the accused-appellants, Jahir and Nathan, stand sentenced to suffer imprisonment for life and to suffer imprisonment for two years respectively. For their conviction under Section 302 read with Section 149 of the Indian Penal Code, the accused-appellants, Makbul, Sk. Nemani, Sk. Shekhawat, Sk. Safru, Sk. Manir, Sk. Salamat, Sk. Rustam and Sk. Newajuddin @ Sk. Uddan, stand sentenced to suffer imprisonment for life. All the sentences have been directed to run concurrently.

2. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under:—

(i) About 45 bighas of land in village Kusahapur, which falls under Sanhaula Police Station, belonged to, and was owned by, accused Jai Narain Singh. Though the said land, popularly known as “Kusahapur Nimiya Bandh Bahiyar”, was owned by accused Jai Narain Singh, it (i.e., the land) was used to be cultivated by the first informant, Sk. Sahabuddin, and his co-villagers, including Sk. Gambhir, Sk. Jamruddin, Hussaini Ansari and Sk. Manir (since deceased) and others, on the basis of sharing of crops raised thereon.

(ii) Those, who had been so cultivating the land, as indicated hereinabove, came to learn that accused Jai Narain Singh had sold the land to accused Sk. Newajuddin @ Sk. Uddan, Sarpanch of village Singhpur. While the seller was from village Dhoabe, the purchaser belonged to village Singhpur.

(iii) On 29.06.1982, accused Jai Narain Singh brought accused Sk. Newazuddin (since deceased) to the said land and, while showing the land, told the latter that the said land was the one, which had been sold to him (Sk. Newazuddin).

(iv) On the following day, i.e., on 30.06.1982, at about 10 A.M. , when the first informant, Sk. Sahabuddin, was making an outlet on the said land in order to drain out water from the field, accused persons, namely, Sk. Newazuddin, Sk. Amin, Sk. Nemani, Sk. Salamat, Sk. Fakruddin, Sk. Manir, Sk. Munwa @ Jamiruddin, Sk. Mazhar, Sk. Shekhawat, Sk. Safari, Sk. Safru, Sk. Newazuddin @ Sk. Uddan along with 6-7 persons, came to the said field. While accused Jai Narain Singh, Deobra

Click Here to Read the rest of this document