RADHEY SHYAMversusSTATE OF U.P.

                            [2008] 16 S.C.R. 131


                             RADHEY SHYAM                               A
                                      v.
                              STATE OF U.P.
                    (Criminal Appeal No. 1833 of 2008)
                           NOVEMBER 18, 2008
                                                                         B
i         [TARUN CHAITERJEE AND V.S. SIRPURKAR, JJ.]

            PENAL CODE, 1860:

              s. 326 - Father and son were prosecuted uls 307 /PC C
        for pouring acid on their tenant - Trial Court convicting the
        son and ·sentencing him to 4 year rigorous imprisonment
        u/s 326 and acquitting his father - High Court maintaining
        the conviction and sentence - In appeal before Supreme
        Court notice issued with regard to sentence only - Plea for D
        leniency in sentence - Affidavit sworn by complainant
        practically absolving the accused - HELD: The incident is
         30 years old and after being released in 2006 on bail, it
         would not be proper to send the accused back to jail, more
        particularly, when nothing has been stated against him E
         regarding his indulgence in any criminal activity - The convict
         must have acted under the influence of his father who had
         filed the civil suit and lost - There is nothing on record to
         suggest that the injuries were very serious and endangered .
    <    the life of the complainant - In fact, it is only on that ground, F
         that the accused persons were charged with offence uls 326
         /PC - Even if the conviction is held to be justified, the
         circumstances suggest leniency in sentence - Accordingly,
         while confirming the conviction, sentence is limited to the
         period already undergone.                                         G

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
        No. 1833 of 2008.                   .,

                                       131                                H
     132        SUPREME COURT REPORTS                [2008] 16 S.C.R.


 A       From the final Judgment and Order dated 8.12.2005 of the
     High Court of Judicature at Allahabad in Criminal Appeal No.
     1909 of 1981.

           Kirpal Singh and K.S. Rana for the Appellant.
 B       S.N. Pandey and Chandra Prakash Pandey for the
     Respondent.

           The following Order of the Court was delivered :

 c                                 ORDER

           1. Leave granted.

         2. By the instant appeal, appellant Radhey Shyam, S/o
   Ganga Prasad, original accused No. 2 challenges his
D 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
E 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 Court was challenged
  before the High Court, where the verdict of conviction and
F 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.

G     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
H was that the first accused Ganga Prasad owned a house being
          RADHEY SHYAM v. STATE OF U.P.                    133


House No. 20, Lal Kurti Bazar, P.S. Gantt. in Kanpur City. While A
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 Pratad had also filed a Civil Suit for B
eviction of Ba.dlu 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 AM., Badlu Ram felt irritation in the body and he woke C
 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
 staircase. While they ran, they were seen by the prosecution D
 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 wen~ found on his
  body and more particularly, on the neck below left ear, chest, E
  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 F
  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        G
of about 23 years. He further points out that since the initial
charge was under Section 307 IPC, both the accused were
arrestec;l and were behind the bar for substantial time. The
Learn°ed Co~ris.el further points out that even c.fter the
conviction, the present appellant was taken in custody and has    H
      134       SUPREME COURT REPORTS                 [2008] 16 S.C.R.


   A 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
·. B incident. Lastly, the Learned Counsel contends that there has
      been no Police records as against the appellant, nor has he
      indulged in any crime 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
   C 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
 0 ·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,
E though the feeble attempt is made by the Learned Counsf.!I 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       7
F 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 se~d
G the accused back to jail, more particularly, because nothing has
  beeri 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
H the 'civil Suit and lost. The appellant, therefore, seems tb !lave'
                RADHEY SHYAM v. STATE OF U.P.                     135


     acted under the influence of his father. Lastly, there is nothing   A
     on record to 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     B
'
}-   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 ..
                                                                         c
     R.P.                                        Appeal dismissed.




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