BABOO Vs. STATE OF U P

JUDGEMENT

(1.) BY his judgment dated May 25, 1976 in Sessions Trial Nos. 339 of 1975 State v. Giri Singh and others and 156 of 1976 State v. Shanker the Ilnd Additional Sessions Judge, Mathura convicted Jamuna Das, his son Baboo, Sushil, Shanker son of Gappoo and his brothers Hari, Radhey and Ramesh under section 307 IPC read with section 149 IPC, section 148 IPC and section 147 IPC and awarded a sentence of five years rigorous imprisonment with a fine of Rs. 200/- two years' rigorous imprisonment with a fine of Rs. 100/- and one year's rigorous imprisonment (under section 147 IPC to Jamuna Das) respectively making the sentence of imprisonment concurrent. Co-accused Girish and Gappoo were acquitted. Feeling aggrieved, the convicted persons have come to this court in this appeal.

(2.) THE incident out of which the present case arose is said to have taken place about 8 A. M. on July 20, 1973 when, it is said, the appellants together with the two acquitted co-accused and three more persons surrounded PW 4 Ballabh near the Dharamshala of accused Jamuna Das while he was going to the vegetable market and started belabouring him. Ballabh's brother Ram Babu (PW 1), his nephew Kishno and Mahesh and Hori Lal went running there on hearing the alarm with a view to save Ballabh when appellants Ramesh and Hari fired at them with a view to kill them with country made pistols. Mahesh was hit by pellets. Kishno and Ballabh sustained spear injuries, when they were assaulted near their shop where they had sought refuge. Raj Bahadur Vederia (PW 3) and Shiva witnessed the assault. Amongst the assailants, appellants Ramesh and Hari had country made pistols. Radhey and Shanker had Pharsa. Baboo, Sushil and co-accused Girish had spears while the rest had lathis with them.

(3.) AMONGST the various witnesses examined by the prosecution in support of its case, PW 1 Ram Babu, PW 2 Mahesh, PW 3 Vederiaya and PW 4 Ballabh gave an eye witness account of the incident. The testimony of Vederiya was found to be unworthy of belief by the Trial Judge who, however, believed the testimony of the others and convicted the present appellants, as aforesaid after negativing the defence version.