STATE OF UTTAR PRADESH Vs. MOHAMMAD MUSHEER KHAN

JUDGEMENT

(1.) In this appeal by special leave filed by the State of Uttar Pradesh, there are three respondents - (1) Mohammad Musheer Khan; (2) Mohammad Shamim Khan and (3) Siraj Ahmad Khan. All the three were tried by the Sessions Judge of Sultanpur for the offence of committing the murder of Nirmaljeet Singh, brother of Bimaljeet Singh, P. W. 1. Respondent No. 1 was convicted under Section 302 of the Penal Code and sentenced to death. The other two respondents were convicted for the said offence with the aid of Section 34 and each of them was awarded a sentence of life imprisonment. The respondents filed an appeal in the Allahabad High Court and a reference for the confirmation of the death sentence imposed upon respondent No. 1 was also made by the Sessions Judge. The High Court was rejected the reference, allowed the appeal and acquitted all the three respondents. Hence this appeal by the State.

(2.) There is a college known as B. P. Intermediate College at Kurwar, P. S. Kotwali, in the District of Sultanpur. Several students from different villages were reading in the various classes of the college, including the respondent, the deceased, his brother P. W. 1 and some other P. Ws. There existed a bad blood and enmity between the two factions and groups of students - one hailing from village Naugawan Teer and the other belonging to village Dharain. The respondents belong to the latter group. The deceased had associated himself with the former faction. On February 16, 1973 at the instigation of the respondents, it is said, one Balram - a student of Class IX-A went to the clasroom of VII-B and gave a few slaps and blows to Birendra Bahadur, P. W. 8 who is a resident of Naugawan Teer. Nirmaljeet Singh intervened and rescued Birendra Bahadur. Thereupon, the respondents are said to have given a threat to Nirmaljeet Singh. A day later on February 17, 1973 when the tiffin interval started at 1.00 P. M. stutents came out of the playground of the college. At that time in the field, respondents 2 and 3 instigated respondents 1 to assault Nirmaljeet. The said two respondents caught hold of his hands and respondent 1 plunged his knife deep into the back of Nirmaljeet. After receiving the knife blow, Nirmaljeet staggered, fell down and collapsed immediately. The occurrence was witnessed by Bimaljeet P. W. 1, Rajendra Prasad Singh, P. W. 2, Siya Ram, P. W. 3 and Mangla Rai, P. W. 4. The dead body of Nirmaljeet was taken in a bus to the Police Station nine miles away and the First Information Report was lodged by Bimaljeet at 2.00 P. M.

(3.) The respondents denied their complicity in the occurrence. In the Committal Court in their statements under Section 342 of the code of Criminal Procedure, 1898, none of them said a word pleading any right of defence or any assault on Mohammad Shamim Khan, respondent No. 2. In the Sessions Court, however, Mohammad Musheer stated: