NASIR KHAN Vs. EMPEROR

JUDGEMENT

(1.) This is an appeal by Nasir Khan, Ahmad Khan and Kallu Khan alias Kaluta, who have been sentenced to rigorous imprisonment for a period of five years each under Section 304 read with Section 34, Indian Penal Code, for causing the death of one Ismail. It appears that Ajaib Khan and Easul Khan were two out of four brothers and that there was a dispute about property between them. In particular there was a dispute about possession over plot No. 637 in which the family had tenancy rights. There were suits between Rasul Khan and Ajaib Khan. In the course of one of these Ajaib Khan claimed that ho was in possession of plot No. 637 and a decree was passed in his favour. This decree was upheld in this Court. Eventually on the date when the incident is said to have taken place, that is, on 14 July 1939, it is said that Ismail, Ishaq and others were ploughing a field when the appellants and some of their associates came up and attacked them with lathis. There can be no doubt?indeed it is admitted that there was a fight in the course of which Ismail received a blow on the head which resulted in his death and Ishaq and Sanaullah were injured. It also appears that the appellants received injuries in the course of the same fight. The prosecution have, therefore, established all that it was necessary for them to establish, that is, that the three appellants took part in a fight in the course of which Ismail received fatal injuries. The defence was that the appellants were acting in exercise of the right of private defence. It is said that they were ploughing in the field when the others came up and attacked them. The learned Judge has found in favour of the prosecution. It is not to be forgotten that the burden was on the appellants to prove that their action was justified by the right of private defence. It seems that Ajaib Khan had been claiming to be in possession of this plot for many years and that the litigation about it had ended in his favour. As the learned Judge says, it is not likely that he gave up possession. The evidence of the witnesses for the prosecution is quite as good as that of the witnesses for the defence and it seems to us that the appellants failed to establish that they were acting in exercise of the right of private defence. They are therefore guilty and were rightly convicted.

(2.) It has further been urged that the sentences are too severe. We do not say that we might not have passed lesser sentences ourselves, if the case had originally been before us, but sentences are a matter of discretion and we do not think that they are so disproportionate in this case with the seriousness of the offence that we should interfere with them. There seems to be very little doubt that the appellants who were the sons of Rasul Khan were attempting to seize possession of his field in spite of the fact that the Courts had decided against them. Whatever else may have happened, this fact at least is certain that one man died as a result of the action of the appellants. We do not think we should do anything to encourage the belief that attacks with lathis which result in death are matters of little importance. The result is that the appeal fails and is hereby dismissed.

(3.) We have also before us an application by Ajaib Khan asking us to enhance the sentences of rigorous imprisonment for a period of five years and to set aside the acquittal of four persons who were tried at the same time as the appellants. Our brother Braund when he issued notice of this application remarked that it struck him as a little shocking that private revisions should be entertained at the instance of disappointed complainants to enhance sentences, but he understood that it was not uncommon here. The position, of course, is that a person who makes an application in revision is not asking the Court to adjudicate upon any rights which he claims. He has no rights. Any person can bring any matter to the notice of this Court and the Court can interfere if it wishes to do so within the powers given to it. We agree with our learned brother that the Court should generally be very loath to enhance sentences on the application of a private complainant, although there might be cases in which a complainant or some other person might bring some matter to the notice of the Court and the Court would come to the conclusion that the interests of justice generally would be served by an enhancement. In the present case we see no reason at all to interfere by enhancing the sentences. As for that part of the application praying that the orders of acquittal should be set aside, it is sufficient for us to say that we have no power which allows us to convert a sentence of acquittal into one of conviction. We could, of course, order a retrial, but we would do so only if there was some defect in the proceedings which would lead us to the conclusion that the persons acquitted had never been properly tried at all. We would not order a retrial merely because we thought that we did not agree with the decision of the Court below. The application in revision is rejected.