Judgement

IMAM J. - The appellants were granted special leave to appeal by this Court against the decision of the Allahabad High Court upholding their convictions under Ss. 302 read with S. 149, 449 read with Ss. 149 and 147, Indian Penal Code, and the conviction of the appellant Sheo Ram under S.323, Indian Penal Code. So far as the sentence is concerned, the High Court affirmed the sentence of death passed by the Sessions Judge on the appellant Brij Bhukhan but reduced the sentence of death in respect of other appellants to transportation for life.

2. that the deceased Ram Prasad was killed in an incident at village Churyani on the 14th of September, 1954, at about 5 to 5.30 p.m. admits of no doubt. According to the version of the prosecution, Ram Prasad had gone to Fatehpur in connection with a revenue case, having left at about 8 o clock in the morning and was due to return to his village Churyani at 5 or 5-30 p.m. His son Santosh Kumar had also gone to Fatehpur in the morning to attend his college and the arrangement between father and son was that they would return together in the evening by bus and Santosh Kumar was to meet his father at the bus stand. Ram Prasad had instructed his servant Buddhu to meet him when the bus arrived in order to carry his things home from the place where the bus would stop near his village. Ram Prasad and his son arrived at Churyani bus stand at about 5 p. m. and they were met by Buddhu. These persons started for their house. They had not gone very far when they were attacked by the appellants. When Ram Prasad was attacked by the appellants, he ran into the house of one Babu Lal Kayastha chased by the appellants. The appellants entered Babu Lal s house and dragged out Ram Prasad with violence and assaulted him on the threshold of the house. An inmate of Babu Lal s house, Srimati Jagarnathi in attempting to protect Ram Prasad received some injuries. On the alarm raised by Ram Prasad, Santosh Kumar and Buddhu, several persons from the neighbourhood came in time to witness the assault. The appellants, however, ran away Ram Prasad was lifted and placed on a cot, which was brought by Srimati Jagarnathi from inside the house and, after a little while, was taken on it to his house which was at a distance of 70 or 80 paces. Ram Prasad died very soon thereafter. The first information was lodged at police station Ghaziapur at 7 p.m. by Ram Prasad s servant Buddhu in which the appellants were named. The defence version, as set up by the appellant Brij Bhukhan, was that he was attacked by Ram Prasad and three unknown persons who had come to his house at 7.30 the same evening and Brij Bhukhan, used his weapon in self-defence. In these circumstances, he and those who came to protect him, i.e., his wife, Din Dayal, Khuda Bax and Shanker Lal were injured. The defence of other appellants was denial of participation in any assault. The appellants Sheo Ram and Ramu set up defence of alibi. On the version given by Brij Bhukhan, a case of the right of private defence was suggested.

3. Both the Courts below accepted the prosecution version of the occurrence and clearly found that the place of occurrence was at Babu Lal s house. They rejected the defence version in the clearest term.

4. Before dealing with the main submission made by Mr. Sethi on behalf of the appellants, it is necessary to state a few facts. When the appellant Brij Bhukhan was arrested and produced at the police station he was found to have certain injuries on his person. On the 16th of September 1954, he was examined by Dr. Shukla, the Medical Officer in charge of the District Jail, Fatehpur who found five injuries on his person, none of which were serious. The High Court came to the conclusion, having regard to some of the injuries that they were of a nature as to make it too risky for Brij Bhukhan himself or any body else acting on his behalf to create those injuries on his person. It was pointed out by the High Court that the prosecution sugge