Decided on– 29 July, 1977
Equivalent citations: AIR 1977 SC 2226, 1977 CriLJ 1897, (1977) 3 SCC 562, 1977 (9) UJ 546 SC
Bench: N Untwalia, P Shinghal
Facts
1. There’s a university referred to as B.P. Intermediate College at Kurwar, P.S.Kotwali, within the District of Sultanpur. where Several students from different villages were reading within the various classes of the school, including the respondents, the deceased, his brother P.W. 1 and a few other P.Ws.
2. There existed a nasty blood and enmity between the 2 factions and groups of students-one hailing from village Naugawan Teer and therefore the other belonging to village Dharain.
3. The respondents belonged to the latter group. The deceased had associated himself with the previous faction. On February 16, 1973 at the instigation of the respondents, it’s said, one Balram-a student of sophistication IX-A visited the category room of VII-B and gave a couple of slaps and blows to Birendra Bahadur, P.W. 8 who may be a resident of NaugawanTeer.Nirmaljeet Singh intervened and rescued Birendra Bahadur.
4. Thereupon, the respondents are said to possess given a threat to Nirmaljeet Singh.A day afterward February 17, 1973 when the Tiffin interval started at 1.00 P.M. students came call at the play ground of the school . At that point within the field, respondents 2 and three instigated respondent 1 to assault Nirmaljeet.
5. The said two respondents caught hold of his hands and respondent 1 plunged his knife deep into the rear 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 body of Nirmaljeet was taken during a bus to the police headquarters, nine miles aways and therefore the First Information Report was lodged by Bimaljeet at 2.00 P.M.
Issue
- Whether the plea of personal defence is sustainable or not?
Obiter dicta
The burden of building the plea is on the accused which burden are often discharged by showing preponderance of probabilities in favour of that plea on the idea of the fabric on record.
Rationale
The blow, consistent with the report and evidence of the Doctor who held the autopsy over the body of Nirmaljeet, was sufficiently deep and fatal. it had been sufficient within the ordinary course of nature to cause his death. It did cause his instantaneous death.
Musheer did shall cause that injury and thus , he’s guilty under Section 302 of the legal code . we discover no justification to simply accept the argument suggests by his learned Counsel that he might be held guilty under Section 304 and not under Section 302. But we expect on the facts and within the circumstances of the case the acute penalty of death sentence isn’t warranted.
Judgement
The court dismiss the appeal as against Mohammad Shamim, respondent No. 2 and Siraj Ahmad Khan, respondent No. 3 and maintain their acquittal as recorded by the supreme court except for different reasons.
It was held to allow the appeal against Mohammad Musheer Khan, respondent No. 1, put aside the High Court’s order for acquittal passed in his favour, uphold the order of conviction made by the Sessions Judge under Section 302 of the legal code but rather than sentence of death imposed upon him by the judge, we sentence him to undergo imprisonment of life.
Conclusion
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 legal code and sentenced to death. the opposite two respondents were convicted for the said offence with the help of Section 34 and every of them was awarded a sentence of captivity.
The respondents filed an appeal within the Allahabad supreme court and a reference for the confirmation of the death sentence imposed upon respondent No. 1 was also made by the Sessions Judge. The supreme court has rejected the reference allowed the appeal and acquitted all the three respondents. Hence this appeal by the State.
By – Bharti verma