- (1.) M. C. Jain, J. These are two con nected appeals directed against the judg ment and order date 24-1-1979 passed by Sri L. N. Rai, the then III Addl. District and Sessions Judge, Budaun in Sessions Trial No. A-511 of 1974. By the impugned judg ment, the trial Court convicted Ram Dass and Roop Kishore under Section 120-B read with Sections 307 and 109 I. P. C. and sentenced each of them to undergo rigorous imprisonment for seven years. The learned Additional Sessions Judge convicted the third accused Kubairaj under Section 302 read with Section 34 I. P. C. and 307 I. P. C. read with Section 34 I. P. C. He was sentenced to seven years rigorous imprisonment under Section 307 read with Section 34 I. P. C. and life im prisonment under Section 302 read with Section 34 I. P. C. Both the sentences were directed to run concurrently. The two other accused Gabbo alias Gajendra Kumar and Hari Om were also simul taneously tried but they were acquitted.
(2.) CRIMINAL Appeal No. 435 of 1979 came to be filed by Ram Dass, Roop Kishore and Kubairaj who were convicted and sentenced as mentioned above. Criminal Appeal No. 1144 of 1979 was filed by the State against Ram Dass and Roop Kishore for enhancement of their sentence on the ground that they were guilty for criminal conspiracy to com mit the offence of murder too, punishable with death. The two appeals are being decided by this common judgment. It may also be stated before proceeding further that Kubairaj hap pened to die during pendency of the appeal and the same abated against him by order dated 28-9-98. Therefore, presently we are concerned only with the remaining two, namely, Ram Dass and Roop Kishore who are the appellants in Criminal Appeal No. 435 of 19/9 and respondents in Criminal Appeal No. 1144 of 1979.
(3.) THE incident took place on 16-11-72 at about 5. 15 p. m. at the house of Brij Ballabh within Police Station Bisauli, Dis trict Budaun. THE report was made by Brij Ballabh (PW-15)on 16-11-72 at 5. 40 p. m. , the distance of Police Station from the place of occurrence being two furlongs. THE case of the prosecution, in its broad essentials as emerged from the F. I. R. and the evidence adduced in the Court, may be set forth. Appellants Ram Dass and Roop Kishore along with one Lotan conspired together for the murder of Brij Ballabh (PW-15) who was a sitting M. L. A. from Bisauli Constituency. In consequence of such criminal conspiracy, accused Gabboo and Kubairaj armed with revolvers and Hari Om possessing a black rod (Kala Danda) reached the house of Brij Ballabh (PW-15) on 16-11-1972 at about 5. 15 p. m. THE accused Gabboo first attempted to fire on Brij Ballabh (PW-15) with a view to commit his murder, but the shot missed. THE deceased Mukesh son of Brij Ballabh (PW-15) who was also sitting there along with his father at the Chabutra existing in front of his father's house, pounced upon the accused Gabboo and caught hold of him. Accused Kubairaj then opened fire on Mukesh killing him instantaneously. The background of the incident was said to be that Brij Ballabh (PW-15) had been in politics since 1930. He had developed political rivalry and his main rivalry was with one Shri Raj Singh, resi dent of village Mannu Nagar. The accused were allegedly the supporters of his op ponent. Brij Ballabh (PW-15) with his sup porters and his opponent with his sup porters formed two rival factions or groups. The accused Roop Kishore had been closely related or a friend of the other accused Ram Dass, Mathura Prasad and Lotan. Lotan was murdered after this inci dent and Mathura Prasad met the similar fate earlier thereto. Earlier to the present incident. Lotan had settled the marriage of his daughter in village Jamalpur but sub sequently, it was cancelled and then mar riage of his daughter was settled with the accused Gabboo with the condition that his enemies (Lotan's enemies) would be finished or murdered. Thus, there was said to be deep- rooted enmity or bad blood between Brij Ballabh and his supporters on one hand and the accused on the other. The incident allegedly took place in conse quence there of.;