Untwalia, J. - (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: "On 17-2-73 a quarrel had taken place between accused Shamim and deceased Nirmaljeet. In course of that scuffle Shamim was being beaten, meantime, while mediating, someone, stabbed Nirmaljeet." Shamim's statement in the Sessions Court under Section 342, in this regard, was in these terms: "The reason of my absconding was that on 17-2-73, during interval time, Bimaljeet Singh and 10-15 boys had, saying that on 16-2-73, in the evening at Kurwar Market I had got Nanhoo beaten by Balram, beaten me in the playground. And on my raising alarm some boys had gathered there. While saving me some one out of the crowd inflicted knife injury to Nirmaljeet Singh in his back and he fell down then and there". It may be stated here that in the cross-examination of Bimaljeet it was suggested to him that Shamim had received injury due to attack on him by Bimaljeet and others. Bimaljeet denied the suggestion. No evidence was adduced by the defence in support of their plea that Shamim was attacked, beaten and injured in the college playground on the date and at the time of the occurrence. One defence witness namely Dr. R. R. Misra, D. W. 1 was examined in support of the injuries having been found on the person of Shamim. According to his evidence, he examined Shamim on 23-2-1973 and found eight stabbed wounds and abrasions on the various parts of his body including the head. All the injuries were simple and of a very superficial kind. The Doctor was not in a position to give any definite opinion as to when they might have been inflicted or caused. There was no other evidence, as already stated, in support of the halting plea of the defence that injuries had been caused to Shamim during the occurrence in question resulting thereafter in the giving of the fatal blow to Nirmaljeet by some one. Even so the High Court, in our opinion, wholly erroneously and unjustifiably, accepted the respondents plea of right of private defence and acquitted them under a wrong impression that according to the defence it was Nirmaljeet Singh and others who launched an assault upon Shamim and then some one stabbed Nirmaljeet giving the fatal blow in order to rescue Shamim.;