HANIF Vs. STATE

JUDGEMENT

(1.) This appeal has been preferred by 12 persons, namely, Hanif, Salim, Suleman, Mohd. Ilyas, Ghulam Dastgir son of Nankau, Mohi-uddin, Sarfaraz, Ashiq Ali, Sadiq Ali, Ghulam Dastgir son of Mohd. Ismail, Qasim and Wali Mohammad against their conviction and sentence imposed upon them by the learned Sessions Judge, Bara-banki. All the appellants have been sentenced to imprisonment for life under Section 302 read with 149, I. P. C. In addition, Hanif has been sentenced to rigorous imprisonment for two years under Section 148, I. P. C., and the remaining appellants have been sentenced to one year's rigorous imprisonment each, under Section 147, I. P. C. The sentences in the case of each appellant have been made concurrent.

(2.) The charge against the appellants was that on 17th April, 1960, at about 1.30 p.m. in village Shahabpur. district Barabanki, they formed an unlawful assembly armed with a bhala and lathis and in prosecution of the common object of the unlawful assembly they committed the murder of one Darshan deceased.

(3.) The appeal was heard by a Bench constituted of Mulla and Nigam, JJ, Both the learned Judges delivered their judgments separately. While both the learned. Judges are agreed that all the twelve appellants are proved to have participated in the incident which resulted in Darshan's death, Mulla, J. is of opinion that, on the facts proved, Hanif alone should be convicted for committing the murder of Darshan and he should be sentenced to imprisonment for life under Section 302 simpliciter. About the remaining eleven appellants he is of opinion that they are not guilty of committing the offence under Section 302, read with 149, I. P. C. but that their guilt falls under Section 326, read with 149, I. P. C. and that each one of them should be sentenced to eight years' rigorous imprisonment. On the other hand, according to Nigam, J., these eleven appellants we guilty of committing an offence under Section 302, read with 149, I. P. C. and that the sentence of imprisonment for life imposed upon them by the trial Court should be upheld. On account of this difference of opinion between the two teamed Judges, the case of the 11 appellants Salim, Suleman Mohd. Ilyas, Ghulam Dastgir son of Nankau, Mohmddin Sarfraz, Ashiq Ali, Sadiq Ali Ghulam Dastgir son of Mohd. Ismail, Qasim and Wali Mohammad has been referred to me under Section 429 Cr. P. C.