Radhey Shyam vs State Of U.P

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1833 OF 2008 (Arising out of SLP (Crl.) No. 2888 of 2006)

Radhey Shyam .... Appellant

Versus

State of U.P. .... Respondent

ORDER

Leave granted.

2. By the instant appeal, appellant Radhey Shyam, S/o Ganga Prasad,

original accused No. 2 challenges his conviction for offence under Section

326, Indian Penal Code (hereinafter called `IPC' for short) and the

consequent sentence of rigorous imprisonment for 4 years. Initially, the

charge against the appellant was under Section 307 read with Section 34

IPC. His father Ganga Prasad, first accused, was tried along with him.

Eventually, the father Ganga Prasad was acquitted, while the appellant

was convicted, but the Trial Court converted the offence to that under

Section 326 IPC and awarded the sentence. The verdict of the Sessions 2

Court was challenged before the High Court, where the verdict of

conviction and sentence was confirmed. Initially, when the matter came up

before this Court, this Court issued a notice, limited to the question of

sentence. The accused was also ordered to be released on bail. This

notice was issued on 5.6.2006.

3. Today, when the matter has come up before us, the Learned

Counsel for the appellant prays for the leniency regarding the sentence. It

is pointed out that this incident has taken place in the night between 31st

October and 1st November, 1978. The allegation against the accused

persons was that the first accused Ganga Prasad owned a house being

House No. 20, Lal Kurti Bazar, P.S. Cantt. in Kanpur City. While the

landlord and his family resided on the Ground Floor and the Second Floor

of the house, the First Floor was rented out to Badlu Ram, who used to

stay there along with his wife and son. The relations between the landlord

and the tenant were strained and the landlord Ganga Prasad had also filed

a Civil Suit for eviction of Badlu Ram, which Suit was dismissed. The

Learned Counsel points out that the prosecution story was that while Badlu

Ram and his wife Manki were sleeping on two cots and their son was

sleeping on a cot in the Balcony of the house, at about 3 A.M., Badlu Ram

felt irritation in the body and he woke up and saw that his landlord Ganga

Prasad and his son Radhey Shyam were inside his room and Radhey

Shyam was having a bottle in his hand. Badlu Ram immediately raised an

alarm. The father and the son ran away from the room towards the 3

staircase. While they ran, they were seen by the prosecution witnesses.

The two accused ran to their own house and locked themselves in. It was

obvious that Badlu Ram was injured due to the acid being thrown on him,

which had caused him irritation. As many as 4 acid burn injuries were

found on his body and more particularly, on the neck below left ear, chest,

left arm and forearm and on other parts of the body, like left thigh, right side

chest and on the back. The accused were arrested and tried. Ganga

Prasad, accused No. 1 was given the benefit of doubt, however, the Court

found that it was the present appellant, who had poured the acid and

committed offence. It was on this basis, that the sentence of 4 years of

rigorous imprisonment came to be passed.

4. The Learned Counsel urges that the incident is at least 30 years old

and at that time, the accused was a young man of about 23 years. He

further points out that since the initial charge was under Section 307 IPC,

both the accused were arrested and were behind the bar for substantial

time. The Learned Counsel further points out that even after the

conviction, the present appellant was taken in custody and has remained

behind the bars till he was released on bail on the basis of the order

passed by this Court on 5.6.2006. He further pointed out that complainant

Badlu Ram has filed affidavit dt. 5.5.2006, wherein, he had given a clean

chit to the appellant that he could not recognize Radhey Shyam at the time

of incident. Lastly, the Learned Counsel contends that there has been no

Police records as against the appellant, nor has he indulged in any crime 4

and that the incident, if at all took place, was because of the enmity

causing relatively minor injuries to complainant Badlu Ram. In that view,

the Learned Counsel prays that the Court should show leniency in the

matter of sentence, as the appellant has already undergone about 1 year of

sentence.

5. As against this, the State Counsel opposes and points out that the

complainant had suffered serious injuries, disfiguring his face and,

therefore, this Court should not show any leniency.

6. Since the notice issued by this Court was limited to the sentence

alone, we refuse to go to the merits of the conviction, though the feeble

attempt is made by the Learned Counsel to plead innocence on the part of

the appellant. However, insofar as the sentence is concerned, we must

take into account the affidavit sworn by Badlu Ram, the complainant,

practically absolving the appellant. Though it will be of no use at this stage

for pleading the acquittal, it is certain that the relations between the parties

have improved.

7. It is also seen that the incident is 30 years old and after being

released in 2006 on bail, it will not be proper to send the accused back to

jail, more particularly, because nothing has been stated against him

regarding his indulgence in any criminal activity. We are also mindful of

the fact that the accused must have acted under the influence of his father,

who was in fact, the main actor in the whole drama. It was he, who had

filed the Civil Suit and lost. The appellant, therefore, seems to have acted

under the influence of his father. Lastly, there is nothing on record to 5

suggest that the injuries were very serious and endangered the life of

Badlu Ram. In fact, it is only on that ground, that the accused persons

have been charged for offence under Section 326 IPC. In short, even if we

agree that the conviction was justified for the reasons aforementioned, we

lean in favour of the leniency in sentence. Accordingly, we confirm the

conviction, however, limiting the sentence to that, which is undergone by

the appellant. With these observations, the appeal is dismissed.

......................................J. (Tarun Chatterjee)

......................................J. (V.S. Sirpurkar)

New Delhi;

November 18, 2008.