STATE OF U P Vs. GIRJA

JUDGEMENT

(1.) This appeal has been preferred by the State of U. P. against the judgment and order dated 28-2-1979 passed by Sri D. R. Singh, the then learned IIIrd Additional Sessions Judge, Ballia in Sessions Trial No. 178 of 1978 acquitting the accused opposite parties of the charges under Section 302 read with Section 34, I.P.C.

(2.) The prosecution story, briefly stated, was that respondent Girija was the nephew of Ram Adhar (accused died before trial) and accused Subhas Yati is nephew of accused Nandu. All the accused respondents and Ram Adhar were of the same party and were the residents of village Narni Ki Mathia, P.S. Rasra, district Ballia, Sarju Bharti deceased, resident of same village, had initiated a criminal case of theft against Ram Adhar, in which he was convicted and conviction was maintained up to this Court. On account of it Ram Adhar was having enmity with the deceased.

(3.) Sarju Bharti deceased had his hut (Palani) towards east of his house. On the night of 16/17-3-1978 Sarju Bharti deceased was sleeping in his above hut on a charpai. Besides him, his sons Rajendra Kumar (P.W. 1) and Jitendra were also sleeping on different charpai in the said hut. A lighted lantern was placed in the hut. At about 1.30 a.m. accused Ram Adhar, Girija and Nandu all armed with Gandasa and Subhash Yati armed with "Dao" came to the said hut and started inflicting injuries upon Sarju Bharti by their respective weapons. Sarju Bharti deceased raised alarm. On his alarm Rajendra Kumar Bharti (P.W. 1) and Virendra woke up and observed accused respondents and Ram Adhar causing injuries on the deceased. They also raised alarm. Hearing their alarm Sakaldeep (P.W. 2), Triveni (P.W. 3) and Kailash rushed to the hut flashing their torches. On reaching near the hut they also saw the occurrence. On challenge the accused respondents and Ram Adhar ran away. The witnesses chased them, but they could not be apprehended.