Judgement

CHANDRACHUD, J.:- On May 27 1971 two persons called Tribeni Sahai and Radhey were shot dead in the town of Dataganj, District Budaun. The four appellants: Balak Ram, Nathoo, Dr. R. P. Kobli & Mohd. Sayeed Khan alias Banney Khan were tried along with two others by the learned Sessions Judge, Burden, for various offences in connection with that incident. Balak Ram was convicted under section 302 of the Penal Code and was sentenced to death. He was also convicted and sentenced under Section 337 read with Section 149 for causing injuries to Jhilmili and Ram Prakash and under Section 148, Penal Code. The learned Judge acquitted the other five accused of all the charges. Out of these five, we are now concerned with Kailash whose acquittal is not under challenge and with Ahmed Sayeed Khan alias Pearey Mian who died during the pendency of the proceedings in the High Court of Allahabad.

2. The High Court by its judgment dated December 22, 1972 confirmed the conviction of Balak Ram and the sentence of death imposed on him under Section 302 as also his conviction under Section 148. The High Court altered his conviction under Section 337 read with Section 149 to one under Section 307 read with Section 149 of the Penal Code.

3. In an appeal against the order of acquittal passed by the Sessions Court, the High Court confirmed the acquittal of Kailash, but convicted Nathoo, Dr. R. P. Kohli & Mohd. Sayeed Khan alias Banney Khan under sections 302 and 307 read with Section 149. It further convicted Nathoo and Dr. Kohli under Section 148 and Banney Khan under Section 147 of the Penal Code. The three accused have been sentenced by the High Court to imprisonment for life for their participation in the murder of Tribeni Sahai and Radhey and concurrently to ten years rigorous imprisonment for causing injuries to Jhilmili and Ram Prakash, Balak Ram, Nathoo, Dr. Kohli and Banney Khan have filed four separate appeals by special leave of this Court.

4. The incident leading to the murder of Tribeni Sahai and Radhey arose, indisputably, out of political rivalry, the parties involved being Congress (R), Congresss (O) and the Bhartiya Jan Sanh. Tribeni Sahai was a sitting Member of the U. P. Legislative Assembly, elected on the Congress (R) ticket while the other victim Radhey is said to have been his bodyguard. Balak Ram, Nathoo and Baneey Khan belonged to the Congress (O) while Dr. R. P. Kohli was the local President of the Jan Sangh.

5. The elections to the Town Area Committee of Dataganj were scheduled to be held on May 30, 1971. Balak Ram was contesting the election to the Chairmanship of the Committee as a nominee of congress (O). Dharam Pal, the rival candidate for Chairmanship was a nominee of Congress (R). Nathoo and Banney Khan were contesting the election for the membership of the Committee on the ticket of Congress (O). The Jan Sangh seems to have decided to support the candidature of Balak Ram and others who were put up by Congress (O).

6. The election campaign launched by the rival political parties led to great acrimony. The District Magistrate of Budaun, therefore, promulgated on May 24, 1971 an order under Section 144 of the Code of Criminal Procedure, prohibiting the assembly of more than five persons and carrying on arms in public. In defiance of this order, Balak Ram led a procession of some 25 persons at about 6-30 p.m. on May 27, 1971. While passing by the house of the rival candidate Dharam Pal, the processionists raised various slogans whereupon Dharam Pal formed a procession of his own followers. The two processions stood facing each other at the crossing of a road but the Station House Officer Yogendra Sharma persuaded both the parties to disperse.

7. The case of the prosecution in regard to the main incident leading to the double murder may be stated thus: At about 9-15 p.m. on May, 27 the six accused along with 15 or 20 of their followers went about canvassing for the candidates put up by theCongress (O). A little later, the