# Radhey Shyam & Ors v. State

- **Citation:** (2022) 2 ILRA 614
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-04
- **Case number:** Criminal Appeal No. 947 of 1982
- **Bench:** Ramesh Sinha, Vivek Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-ors-v-state-48142
- **Pages:** 20

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 201challenge to-conviction-Both PW-1 and
PW-2 stated that the wife and nephew of
the deceased were present at the time of
incident but these witnesses were not
produced
before
the
trial
courtprosecution failed to explain why wife
and nephew did not go to lodge the
report rather it was lodged by PW-1
(villager)-statement of PW-2 with regard
to the assault of the deceased with Banka
three and four times is contrary to the
report
of
the
post-mortem
of
the
headless body of the deceased-inquest
report of the head recovered has been
signed by PW-1 but the same denied in
his statement , PW-1 failed to explain
how his signature was mentioned on the
report, even he denied the recovery of
head-weapon
of
assault
was
not
recovered by the Investigating officer nor
unknown recovered head was sent for
D.N.A. test which shows the conduct of
the Investigating Officer, head could not
be connected due to negligence of the
Investigating
officer-no
satisfactory
evidence about motive in sofar as the
illicit relations of wife, if she was wife of
the deceased then she definitely inherited
the property but land of the deceased was
inherited by sister of the deceasedprosecution failed to bring home the guilt
of the appellant beyond reasonable doubtappellant deserves the benefit of doubt-he
is acquitted from the charges levelled
against him.(Para 1 to 52)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,780 of 67,419. This is a partial read: ask again with offset=39780 for what follows._

614 INDIAN LAW REPORTS ALLAHABAD SERIES
from the date of passing of the judgement.
In default of payment of fine accusedappellant
shall
undergo
two
months
imprisonment.

20. Appeal is partly allowed in the
above terms.

21. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.
----------
(2022)02ILR A614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 947 of 1982

Radhey Shyam & Ors. ...Appellants
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri K.K. Dixit, Dharm Trivedi, Jai Pal Singh,
Amicus Cure, Om Prakash Dixit, Poonam
Singh, Reetesh Singh, Smriti

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 201challenge to-conviction-Both PW-1 and
PW-2 stated that the wife and nephew of
the deceased were present at the time of
incident but these witnesses were not
produced
before
the
trial
courtprosecution failed to explain why wife
and nephew did not go to lodge the
report rather it was lodged by PW-1
(villager)-statement of PW-2 with regard
to the assault of the deceased with Banka
three and four times is contrary to the
report
of
the
post-mortem
of
the
headless body of the deceased-inquest
report of the head recovered has been
signed by PW-1 but the same denied in
his statement , PW-1 failed to explain
how his signature was mentioned on the
report, even he denied the recovery of
head-weapon
of
assault
was
not
recovered by the Investigating officer nor
unknown recovered head was sent for
D.N.A. test which shows the conduct of
the Investigating Officer, head could not
be connected due to negligence of the
Investigating
officer-no
satisfactory
evidence about motive in sofar as the
illicit relations of wife, if she was wife of
the deceased then she definitely inherited
the property but land of the deceased was
inherited by sister of the deceasedprosecution failed to bring home the guilt
of the appellant beyond reasonable doubtappellant deserves the benefit of doubt-he
is acquitted from the charges levelled
against him.(Para 1 to 52)

The appeal is allowed. (E-6)

List of Cases cited:

1. Shaikh Nabab Shaikh Babu Musalman & ors.
Vs St. of Mah. (1993) Supp. (2) SCC 217

2. Vijaysing Dharamdas Thakar Vs St. of Guj
(1996) Crl. L.J. 2932

3. Surendra Pratap Chauhan Vs Ram Nail & ors.
(2001) Crl. L.J. 98

4. Shivaji Dayanu Patil Vs St. of Mah. (1989)
AIR 1762

5. The St. of U.P. Vs Jaggo @ jadgish (1971)
AIR SC 1586

6. Habeeb Mohammed Vs The St. of Hyderabad
(1954) AIR 51

7. Ganesh Bhawan Patel Vs St. of Mah. (1979)
AIR 135

(Delivered by Hon'ble Ramesh Sinha, J.)
2 All. Radhey Shyam & Ors. Vs. State
615

(A) INTRODUCTION

(1) Four accused persons, namely,
Radhey Shyam, Raj Kumar, Jagdish and
Siyaram, were tried by the VII Additional
Sessions Judge, Hardoi in Sessions Trial
No. 791 of 1981 : State Vs. Radhey Shyam
and others, arising out of Case Crime
No.210 of 1981, under Sections 302 and
201 of the Indian Penal Code , 1860
(hereinafter referred to as "I.P.C.") at
police station Pihani, District Hardoi.

(2) Vide judgment and order dated
02.12.1982, the learned VII Additional
Sessions Judge, Hardoi, convicted and
sentenced the accused persons in the
manner as stated herein below :-

"Accused Radhey Shyam
and Siyaram

i. Under Section 302 I.P.C. to
undergo life imprisonment; and

ii. Under Section 201 I.P.C. to
undergo three years' R.I."

"Accused Jagdish and Raj
Kumar

i. Under Section 302 readwith
Section
34
I.P.C.
to
undergo
life
imprisonment; and

ii. Under Section 201 I.P.C. to
undergo three years' R.I."

Their sentences were directed to
run concurrently."

(3) Feeling aggrieved by the judgment
and
order
dated
02.12.1982,
the
convicts/appellants
have
preferred
the
instant appeal. During pendency of the
instant appeal, convict/appellant no.1Radhey Shyam, convict/appellant no.3Jagdish and convict/appellant no.4-Siyaram
died, hence their appeal stand abated vide
orders dated 01.02.2021, 02.07.2015 and
02.07.2015, respectively. Now, the instant
appeal survives only with regard to
appellant no.2-Raj Kumar.

(B) FACT

(4) Shortly stated, the prosecution
case runs as under :-

On 19.09.1981, at about 07:00
am, informant Raj Bahadur (P.W.1) and his
brother Sumnesh Chandra were going
towards their field for cutting Urd (mnZ).
Sripal (deceased) and his wife Madhu were
going to village Sirsa for taking medicine
from Dr. Sobaran and when they reached
near the field of Leela Seth situated on the
southern side of the village of chak road
leading to village Sirsa, accused persons
Jagdish son of Chhotey, Radhey Shyam
and Raj Kumar son of Hansraj, and
Siyaram son of Ram Gulam, village
Bargawan, police station Biswan, District
Sitapur, came out from the field of Jonhari
(tksUgjh ds [ksr) of Ram Prasad and on
coming to chak road, accused Radhey
Shyam challenged Sripal that "idM yks ekj
Mkyks" (he should be catched and killed).
Accused Radhey Shyam and Siyaram were
armed with banka and accused Jagdish and
Raj Kumar were armed with lathies. It has
been stated that at about 07:00 a.m., all the
four accused persons surrounded Sripal
(deceased) and tried to catch him and
started
scuffling,
thereupon
Sripal
(deceased) and his wife also raised alarm.
On hearing the alarm, informant Raj
Bahadur (P.W.1), his brother Sumnesh, his
village Pradhan Jaswant Singh, Rajnish,
Leela
and
other
villagers
ran
by
616 INDIAN LAW REPORTS ALLAHABAD SERIES
challenging them. By that time, all the
accused persons dropped Sripal (deceased)
on chak road, caught him and accused
Siyaram and Radhey Shyam cut his neck
with banka, whereas accused Raj Kumar
and Jagdish were catching him. Thereafter,
Radhey Shyam (accused) took away the
head of Sripal along with his companions
and ran towards the eastern side. They tried
to catch them but they were threatened and
they could not apprehend them. Angauchha
(vaxkSNk) belonging to Radhey Shyam
and a torn piece of cloth of the bushirt of
Siyaram were lying on the place of
occurrence. The dead body of Sripal
(deceased) was lying in the supervision of
Rajneesh and others.

It has also been stated that Sripal
(deceased) had married Madhu about five
months ago from this occurrence. Madhu is
aged about 14-15 years, who has an illicit
connection with Siyaram (accused) and due
to that Siyaram (accused) and Sripal
(deceased) had a lot of bickering with each
other. Mother-in-law of Sripal, namely,
Smt. Sarojani was also living with Sripal
(deceased). Sripal (deceased) was alone
and he had none else in his family. He had
a lot of land and property and to take away
his wife and property, all these four
accused
collusively
murdered
Sripal
(deceased).

(5) The evidence of P.W.1-Raj
Bahadur shows that Pradhan Jaswant
Singh had sent him to the police station
for giving information in respect of the
incident. Thereafter, he went to police
station; narrated the whole incident to
Munshi of the police station; whatever he
told to Munshi was written by him and
read it to him by the Munshi; and
thereafter Munshi got his signature
thereon.

(6) It transpires from the record that
based on the aforesaid report/information,
First Information Report (Ext. Ka.1) was
registered as Case Crime No. 210 of 1981,
under Sections 302, 201 I.P.C., at police
station Pihani, district Hardoi, against all
the four accused persons Jagdish, Radhey
Shyam, Raj Kumar and Siyaram, on
19.09.1981 at 10:00 a.m.

(7) The investigation of the case was
conducted by SI Shiv Murti Singh (P.W.7).
His evidence runs as under :-

On 19.09.1981, he was posted as
Sub-Inspector, police station Pihani. The
case was registered at police station on
19.09.1981 at 10:00 a.m. in his presence.
The investigation of the case was taken by
him on the date itself. He recorded the
statement
of
informant
Raj
Bahadur
(P.W.1) at police station and proceeded to
the place of occurrence. On reaching the
place of occurrence, he prepared the
panchayatnama (Ext. ka.4) of the dead
body of the deceased Sripal, photo lash
(Ext. ka. 5) and challan lash (Ext. Ka.6).
Thereafter, the dead body of the deceased
Sripal was sealed and was sent for postmortem along with a letter to CMO (Ext.
Ka.8) through Constable Ram Naresh and
Chaukidar Bhagwandeen. He, thereafter,
inspected the place of occurrence; recorded
the statement of the witnesses; prepared the
site plan (Ext Ka.9); and collected the
blood stained earth and plain earth from the
place of occurrence in a two separate
containers (Ext. Ka.10). He also collected
the blood stained earth of groundnut and
plain earth from the field of Sunder (Ext.
Ka.11). He also recovered the cloth of the
victim near the dead body under recovery
memo (Ext. Ka.12). He also collected the
aungaucha (vaxkSNk) and a piece of
bushirt of the accused near the dead body
2 All. Radhey Shyam & Ors. Vs. State
617
of the deceased under recovery memo (Ext.
Ka.13).
He,
thereafter,
searched
the
accused persons but he could not find them.

On 27.09.1981, information about
lying of a human head near the village
Akohara was received by him, he reached
the place, from where he recovered it in the
presence of the witnesses. He prepared
panchayatnama (Ext. Ka.16), photo lash
(head) (Ext. Ka. 17), challan lash (Ext.
Ka.18) and letter to CMO (Ext. Ka.20).
Thereafter, the recovered head was sealed
and was sent for post-mortem. He inspected
the place of recovery of head and prepared
the site plan (Ext. Ka.22). On 28.09.1981,
accused persons surrendered themselves in
the Court. He sent the blood stained earth
and original clothe etc. to Chemical
Examiner for examination. He received the
report of Chemical Examiner (Ext. Ka. 22
and ka 23). On 01.10.1981, accused
Jagdish surrendered in the Court. After
completing the investigation, he submitted
the charge-sheet (Ext. Ka.24) against the
accused persons.

Sri Owais Ahmad was posted as
Head Moharrir along with him at the police
station; he is familiar with the handwriting
and signature of Sri Owais Ahmad; the chik
Ext. Ka.1 has been written in the
handwriting and the signature of Sri Owais
Ahmad.

(8) The evidence of P.W.3-Constable
Ram Naresh shows that he was posted as
Constable in September, 1981 at police
station Pihani. On 19.09.1981, he brought
the sealed dead body of the deceased Sripal
with documents from village Akohara to
District Hospital, Hardoi and presented it in
a sealed condition before the doctor.
Chaukidar Bhagwandin was also with him.

In
cross-examination,
P.W.3Constable Ram Naresh has deposed that
when he reached at the place of occurrence,
dead body was lying there. Four Constables
and two Inspectors were there. Chaukidar
met at the place of occurrence.

(9) The post-mortem of the dead body
(headless body) of the deceased Sripal was
conducted on 20.09.1981, at 01:15 p.m., in
District Hospital, Hardoi by Dr. J.V. Singh
(P.W.5), who found the following antemortem injuries on his person :-

"Ante-mortem injuries of the
deceased Sripal

1) Incised wound 14 cm x 10 cm
x through & through at the level of C-7. C7
is clear cut. Margins of wound clean cut
clotted blood present in & around the
wound. The wound on cutting the skin subcutaneous tissue is congested. All distal
structure at thorax inlet are cut (clean). The
circumference of wound is 32 cms.

2) Incised wounds two on top of
shoulder right parellel to each 0.5 cm above
obliquely placed 4 cm medial to right
around clavicular joint. Each measuring 2.5
cm x 0.8 x skin deep clotted blood present.

3) Abrasion 2 cm x 0.5 cm on
back of left shoulder 1 cm below acronic
clavicular joint left.

4) Abrasion 4 cm x 0.7 cm
obliquely placed on left side of abdomen
laterally 6 cms above light iliac crest.

5) Incised wound on web of
thumb and index finger of left hand 3 cm x
1 cm x skin deep with clean cut margins
coggsion clotted blood.
618 INDIAN LAW REPORTS ALLAHABAD SERIES

6) Incised wound on index finger
terminal with phalageal joint palmer and
medial aspect 2 cm x 1 cm x bone deep left
hand cut clotted blood.

7) Incised wound on terminal
phalynix of middle finger left hand 1 cm x
0.7 cm x muscle tender deep on palmer
aspect clean cut margins with cogssion and
clotted blood."

As per the opinion of Dr. J.V.
Singh (P.W.5), deceased Sripal died due to
shock & haemorrhage as a result of antemortem injuries sustained by him.

(10) It is significant to mention here
that in his examination-in-chief, P.W.5 Dr.
J.V. Singh has reiterated the aforesaid antemortem injuries and cause of death of the
deceased Sripal and has also deposed that
on 20.09.1981, he was posted as Surgeon in
District Hospital, Hardoi and on the said
date, at about 01:15 p.m., he conducted the
post-mortem of the dead body of the
deceased Sripal, which was brought by
Constable Ram Naresh (P.W.3) of police
station Pihani and Village Chaukidar
Bhagwandin and they identified the dead
body of the deceased Sripal. He further
deposed that the deceased Sripal was aged
about 45 years and died 1 & 1/4 days ago.
The body structure of the deceased Sripal
was average built. The stiffness after death
on the upper part was gone and was present
at the bottom. The stomach was slightly
bloated. The skin was coming out from
somewhere. The head was missing from the
neck. He further deposed that on internal
examination, it was found that the seventh
cervical vertebra was cut across. Trachea
was cut across the seventh cervical
vertebra. The swallowing tube was also cut
across the seventh cervical. The stomach
was empty. In the small intestine, there was
liquid faecal matter and gas and there was
faecal matter and gas in the large intestines.
He further deposed that he took out dhoti
from the dead body of the deceased Sripal
and sealed it in a cloth and sent it to the
Station Officer. He has proved the postmortem report Ext. Ka.2. He further
deposed that the death of the deceased
could be attributable on 19.09.1981 at
07:00 a.m.; injury no.1 was sufficient to
cause death; injuries no. 1, 2, 5, 6 and 7
could be caused by banka; abrasion could
be caused from the rubbing of the rough
ground; and there could be a difference of
about six hours of the death.

In cross-examination, P.W.5 Dr.
J.V. Singh has deposed that injury no.1,
which
is
incised
wound,
could
be
attributable to one blow and was not a
result of more than one blow. He deposed
that paper no.A5/11 was received by him
along with the dead body, upon which he
mentioned Enclosure 10 and put his
signature on 20.09.1981 and also marked it
as Ext Kha.2.

(11) The evidence of P.W.4-Sri
Shashidhar Rai shows that he was posted as
Constable in September, 1981 at police
station Pihani. On 27.09.1981, he brought
the sealed human head from village
Akohara at Sadar Hospital, Hardoi and
placed it before the doctor.

(12)

The
post-mortem
of
the
recovered human head was conducted on
28.09.1981, at 03:30 p.m., in District
Hospital, Hardoi by Dr. B.L. Sahani
(P.W.6), who found the following on the
unknown human head :-

"On the scalp at few places the
scalp tissue including skin is present that
too is very loose. On this at few places hair
2 All. Radhey Shyam & Ors. Vs. State
619
are adhered about 3 cm in size. Subcutareous are separated. Cartilege of the ear
and nosal septum missing. There is no
brain matter or membrances in the skull.
8th maid bone is missing. The upper jaw is
lacerated and almost separated out. There
are seven (7) teeth attached to it. The
zygomatic bones are absent both side orbit
are empty. The lower jaw is attached to the
skull with few very loose ligaments it
contains eight (8) teeth including third
molar (teeth) in upper and lower jaws are
very loose. The soft tissue on face absent
and ligaments most of it eaten away. The
neck contains only upper four cervical
vertebra
are
attached
to
skull
and
connecting with few very loose ligaments
(connecting)
soft
tissue
except
few
ligaments absent. Vertebras are eroded at
places and lower most part of the 4th
vertebra probably eaten away. The mental
foramen in the mandible is in between mid
part of the upper and lower part of the
body.
Mastard
process
and
occiptal
protuberance are prominent. The angle of
the mandible is slightly everted."

As per the opinion of Dr. B.L. Sahani
(P.W.6), the cause of death could not be
ascertained, hence the skull and vertebrae
was preserved.

(13) It is significant to mention that Dr.
B.L. Sahani (P.W.6) has reiterated the
aforesaid opinion and report on the
examination
of
human
skull
in
his
deposition and has deposed that on
28.9.1981, he was posted as Emergency
Medical Officer in Sadar Hospital, Hardoi
and on that date, at 03:30 p.m., he conducted
the post-mortem of an unknown human
head, which was brought by Constable
Sashidhar Rao, police station Pihani, district
Hardoi in a sealed condition. He deposed
that the age of the head was of a normal
male adult who had died about nine days
ago. He has proved the post-mortem report
of the head (Ext. Ka. 3). He deposed that on
19.09.1981 the person could have died. He
further deposed that he could not tell how
and in what manner the lower part of the
neck was cut. He was shown the postmortem report (Ext. Ka.2) prepared by Dr.
J.V. Singh, Sadar Hospital, Hardoi and
asked him whether he can relate this skull in
any way with the post-mortem report (Ext.
Ka. 2), he deposed that it is not possible
because in the post-mortem report (Ext.
Ka.2), the 7th cervical vertebra was found to
be cut, whereas according to his postmortem report, the bone was present till the
4th cervical vertebra and the 5th, 6th and 7th
vertebra were missing. This head could also
be of a man of about 45 years of age.

In cross-examination, P.W.6-B.L.
Sahani has deposed that this male skull
could also be above 36 years. The maximum
age could be 60 or 65. He stated that he
could not tell. The duration of death
according to the recovered head was about
two to three days old. The teeth begin to
loosen from about four days after death and
may also start falling from the twenty-four
days. The skin of the scalp starts to loosen
from the fifth to the sixth day and there is a
possibility of separation from the seventh to
the eighth day. He stated that it is wrong to
say that it is about 25-25 days old. He knows
about
the
bones.
After
scientific
examination, he found it to be the head of a
man. The bone at the back of the skull was
prominent and the mandibular angle tilted
outwards, because of which, he wrote the
dead body was of male as the upper bones of
the female is not prominent.

In cross-examination, he has
deposed that he had not found any injury
on the skull.
620 INDIAN LAW REPORTS ALLAHABAD SERIES

(14) The case was committed to the
Court of Session by the Chief Judicial
Magistrate, Hardoi on 23.12.1981 and the
trial
Court
framed
charges
against
accused/appellants Raj Kumar and Jagdish
under Section 302 read with section 34
I.P.C. and under Section 201 I.P.C. and
against accused/appellants Radhey Shyam
and Siyaram under Sections 302 and 201
I.P.C. They pleaded not guilty to the
charges and claimed to be tried. Their
defence was of denial.

(15) During the trial, in all, the
prosecution examined seven witnesses.
Two of them, namely, the informant Raj
Bahadur (P.W. 1) and Jaswant Singh
(P.W.2) were examined as witnesses of fact
and other witnesses, namely, P.W.3 Ram
Naresh, P.W.4 Shri Shashidhar Rai, P.W.5
Dr. J.V.Singh, P.W.6 Dr. B.L. Shahni and
P.W.7 SO Shiv Murti Singh were the
formal witnesses and their evidence has
been discussed hereinabove.

(16) We would first like to deal with
the evidence of informant Raj Bahadur
(P.W. 1), who is the witness of fact. He
deposed that accused Radhey Shyam and
Raj Kumar are brothers. Accused Jagdish is
the friend of accused Radhey Shyam.
Accused Siyaram is the brother-in-law of
the accused Jagdish. At the time of the
incident, all the four accused persons were
living at village Akohara. Village Sirsa is
one mile away in southern direction of
village Akohara. He knew the deceased
Sripal, who was living in Akohara. Sripal
(deceased) got married before the incident
with Madhu. Sripal (deceased) had lot of
agricultural land in the village.

It is a matter of thirteen months
ago and about 07:00 a.m., he was going to
cut Urd (mnZ) and along with him, his
brother Sumnesh was also there. They were
on the chak road. They listened to the alarm
and at that time, they were on chak road
near the eastern field of Leela. On listening
the alarm, they saw that four accused
persons Radhey Shyam, Siyaram, Jagdish
and Raj Kumar came out from the Jonhari
field (tksUgjh dk [ksr) of Ram Prasad.
Radhey Shyam and Siyaram were armed
with Banka, whereas Raj Kumar and
Jagdish were armed with lathies. At the
relevant time, Sripal was going ahead of
them on the same chak road and with him
was his wife Madhu. Accused Radhey
Shyam challenged Sripal and all accused
persons clinging to Sripal. Sripal and his
wife
raised
alarm.
Accused
persons
dropped Sripal on the chakroad and
accused Radhey Shyam and Siyaram cut
the neck of Sripal with Banka. Accused Raj
Kumar and Jagdish were catching to Sripal.
Apart from them, Jaswant Singh Pradhan,
Rajnish and Leela were also coming there.
Thereafter, all of them challenged the
accused
persons,
thereupon
accused
persons threatened them. Radhey Shyam
took Sripal's severed head and went to the
east with the remaining three accused.
Thereafter, all of them went there, where
the dead body was lying. Blood was
pouring out of the corpse. There was also a
bushirt cloth and a handkerchief called
Agouchha lying there. Pradhan Yashwant
Singh sent him to the police station to
inform. Rajneesh, Yashwant, Leela and his
brother Sumnesh were left with the corpse.

He went to the police station and
informed the incident and whatever he was
told, Munshi wrote down the same and
after reading it to him, Munshi got his
signature.

Accused Siyaram had an illicit
relationship with the wife of Sripal,
2 All. Radhey Shyam & Ors. Vs. State
621
namely, Madhu and Sripal was killed for
grabbing his land. Sripal had no children.
Sripal did not even have parents.

In cross-examination, P.W.1- Raj
Bahadur has deposed that accused Radhey
Shyam and Raj Kumar are the sons of Hans
Ram. Radhey Shyam and Jagdish had no
relationship but they are friend. P.W.1-Raj
Bahadur has deposed before the trial Court
that before one year's ago, a skirmish took
place between him and Kanchan Pasi
resident of Sirsa and in this regard, a
complaint was lodged against him by
Kanchan Pasi. In that case, a report against
his brother Sumnesh, his uncle Fafan and
Ganesh, his cousin brother Jagdish, Shyam
Mohan and Brahmosh were also lodged.
The police had also submitted charge-sheet
in that case. According to him, at the time
of the murder of the deceased Sripal, the
said case was not decided. P.W.1 has also
stated that Ketuka is the real sister of
deceased Sirpal and she was married to
Kunj Bihari resident of Aagolapur, which is
situated at a distance of 8-9 mile from his
village. Rajneesh, who is the witness of this
case, is the son of Ketuka. According to
him, Ketuka had filed an application for
mutation of her name in respect of the
property/land of Sripal. The deceased
Sripal had 50-55 bighas of land, out of
which, he sold out some land to Sukhlal
son of Fatte. He denied that Sripal used to
play gamble and he may have spent the
money which got from the selling of
agricultural land, in gambling.

P.W.1 has also deposed that
Madhu is the daughter of Sarojini, to whom
Sripal married. Sarojini is said to be a
resident of Neri village, which is situated in
district Sitapur. Sarojini is a widow. He
stated that he did not know whether Sipahi
was the husband of Sarojini or not but he
knows that the husband of Sarojani was
murdered. Sarojini was living in his village
for two to three years before the incident of
this murder and she stayed at the place of
Vimlesh Lohar of his village. Sarojani is a
Brahmin by caste. According to him, when
Sarojani came to his village, Surendra
Lohar resident of Mafia was also coming
along with her. Sarojini had brought her
daughter Madhu and a boy Umri of 10-11
years with her. Surendra Lohar is in jail for
5-6 months before the incident. He stated
that he did not know that Surendra Lohar
enticed Sarojini Lohar. When Surendra
Lohar was caught, Sarojini along with her
boy and girl were started living at the place
of deceased Sripal. Sripal had no relation
with Sarojini of man and woman. He
denied that Sripal was not married to
Madhu daughter of Sarojini and also
Sarojini was having relation with Sripal.

P.W.1 has further deposed in his
cross-examination that witness Rajneesh
had asked him to report, then, he said that
the corpse be saved and then he said that he
would not save the corpse. Thereafter, he
said that if the corpse will disappear, then,
who will be responsible and therefore, he
left Rajneesh there and went to lodge the
report. He further deposed that he asked
Madhu to lodge report but due to illicit
relations, she had not gone to lodge the
report. He further deposed that he went
along at police station and he did not tell
the peoples present there that there was any
enmity with accused persons, hence they
would go for lodging the report because he
had no enmity with the accused persons.
He is an illiterate person and only can sign.
He further stated that the Inspector had not
met him at police station and when he
lodged the report, thereafter the Inspector
met him at police station. He further stated
that he had got the chick FIR before he met
622 INDIAN LAW REPORTS ALLAHABAD SERIES
with Inspector. He had no conversation
concerning this incident with the Inspector
at police station. He returned to the village
from the police station and Inspector was
also coming along with him. After
returning, they had come to the place where
the dead body was lying around 11:30 a.m.
He stayed on the spot till about two o'clock
and by that time, Inspector had sent the
dead body for post-mortem and thereafter,
he went home. Rajneesh had come with the
body for post-mortem. He did not have a
conversation with Inspector from 11:00
a.m. to 02:00 p.m. He thereafter did not go
to the police station on that day and after
that, he never went to the police station. He
further deposed that the Inspector had come
along with him and Constable on the spot
through a Jeep but the Constable who wrote
the FIR had not come along with them.

P.W.1 has further deposed that
after the murder and before going to police
station, he did not have any conversation
with Madhu. After the murder, Madhu and
his mother Sarojini are not living in his
village and he did not know where they
reside. He further deposed that on that date,
Sripal was going to Madhu's medical
treatment. Sripal used to tell that his
woman is sick and he used to go for
medicine. This has been told to him by
Sripal before two days of the incident.
Sripal had not told him on which day he
would go for medicine. He denied the
suggestion that on that day, Sripal was
going with his sister Ketuka and Madhu
was along with her.

P.W.1 has also stated that he had
sickle for cutting Urd and Sumnesh had
also his sickle. He did not reach his field,
then, he heard the noise. Neither he nor
Sumnesh had thrown sickle upon accused
persons. He went to the police station after
giving sickle to his brother Sumnesh. When
he reached the place of occurrence along
with Inspector, his brother Sumnesh was
there. Leela was also present there and his
plow and bull were also in the field of
Leela which is situated at a distance of 115
steps from the place of occurrence.

P.W.1 has further stated that on
seeing all the four accused persons coming,
Sripal did not try to run away. At the time
when Sripal was killed, Madhu was 10-15
steps to the north behind Sripal. Madhu did
not run to save Sripal and till then she kept
seeing to beat Sripal and got clinging to
Sripal from the distance of 10-15 steps and
when the killer ran after killing Sripal, then,
Madhu came at the corpse. Madhu,
thereafter, crying and she did not bend on
the dead body of her man. Madhu, while
crying, was standing at a distance of 6-7
steps. At the time of the incident, Madhu
was aged about 14-15 years, whereas Sripal
was aged about 50-55 years.

(17) P.W.2-Jaswant Singh, in his
examination-in-chief, has deposed that he
is the Pradhan of Village Akohara and was
also Pradhan at the time of occurrence.
About 13 months ago, at about 07:00 a.m.,
he went towards the Southern side of his
village for call of nature and with him was
also Rajneesh. After easing themselves,
they were near the field of Leela and they
saw that Sripal was going on chakroad
towards northern side and behind him, his
wife Madhu was going and at the same
time, they saw that four persons came out
from the Jawar's field of Ram Prasad and
they all began grappling with Sripal. Sripal
and his wife made noise. All the witnesses
saw this occurrence. Raj Bahadur and
Sumnesh were on the chakroad. All the
four accused fell down Sripal and began
cutting his head. Jagdish had caught his
2 All. Radhey Shyam & Ors. Vs. State
623
feet on the eastern side and Raj Kumar
caught his head on the western side and
northern side Siyaram and on the southern
side Radhey Shyam was cutting his head.
They all made noise and challenged the
accused. They were also threatened by
them that if they proceeded they will be
killed. Radhey Shyam took away the cut
head by catching it from his hair by
hanging it in his hands along with other
accused towards the eastern side. Then,
they went near the dead body of Sripal.
From the eastern side of the dead body, one
Agauncha belonging to accused Radhey
Shyam and a piece of cloth of bushirt
belonging to accused Siyaram were lying
there. Raj Bahadur went to lodge the report
at the police station and they remained with
the dead body. He identified Agauncha
(Ext. 10) and a piece of bushirt coloured
(Ext. 21) and has stated that the same lying
near the dead body.

In
cross-examination,
P.W.2Jaswant Singh deposed that he went from
the home for call of nature at 07:00 a.m.
His farm is about a furlong away from the
house. Rajneesh met him in the chak of
Leela where he went to call of nature.
Rajneesh had gone to call of nature along
with him also. It took 10-15 minutes for
easing out. His way is from the side of the
farm of Leela. There was no one else to
ease out. His farm is 50 steps away from
Leela's farm, wherein the groundnut and
cowpea crop was there. His farm is at the
North-East corner of Leela's farm. There
are 4-5 fields in the middle. He deposed
that it is wrong to say that his farm is
situated about two furlong away from
Leela's farm. Thereafter, they came to the
place where the incident took place. When
he saw the incident, he was at the eastern
side of Leela's farm and at the time, Sripal
was 110-115 steps away from him.
Accused dropped Sripal in the corner of the
field of Leela on eastern side.

P.W.2 has further deposed in
cross-examination that where he was
standing, neither he nor Rajneesh was
having any lathi and they were having only
lota (a round water pot). Raj Bahadur and
Sumnesh were armed with hasiya (sickle)
and they were going to cut Urd. They were
running 50-60 steps towards the place of
the incident when clinging took place. Raj
Bahadur and Sumnesh were also running
30 steps towards the place of the incident.
Leela was also 30-40 steps ahead. He
deposed that accused Radhey Shyam and
Siyarm were cutting the head of Sripal with
banka by standing and bowing down and
both had assaulted three-three, four-four
blow of banka and he did not see the blow
of banka on earth. Four accused ran
towards the east north corner. Blood was
falling from his head in Leela's field. They
have not chased the accused persons.

P.W.2 has further deposed in
cross-examination that after the murder,
Madhu did not cry by clinging to Sripal but
she stood away and crying. Ram Bahadur
went to police station. Police and Ram
Bahadur came from police station to the
place of the incident and at that time,
Ketuka and his members were not coming
there. Rajneesh was residing in his village.
Police went from the place of the
occurrence at about 3-4 p.m. Raj Bahadur
did not go along with the police.

(18) In the statement under Section
313 of the Code of Criminal Procedure, the
accused persons have denied all the
allegations made against them. Accused
Radhey Shyam has stated that his brother
Onkar stood witness against Pradhan
Jaswant Singh and Raj Bahadur; and his
624 INDIAN LAW REPORTS ALLAHABAD SERIES
brother was a witness against Raj Bahadur,
informant of this case and due to that
enmity, they falsely deposed against them
and this case has been falsely launched
against them. Accused Raj Kumar has also
stated that due to enmity, he has been
implicated by the informant in this case.
The same has also been stated by accused
Jagdish. Accused Siyaram has also stated
that due to enmity with his brother-in-law
Jagdish, has been falsely implicated in this
case. He has denied that he had any illicit
connection with Smt. Madhu said to be the
wife of Sripal. It is also denied that to grab
the land and Madhu, they committed this
offence. Accused Siyaram has also stated
that he did not know that Sripal had
married Madhu before this occurrence.
Jagdish had denied that Madhu was
married to Sripal. Raj Kumar and Radhey
Shyam have also denied that Madhu had
married with Sripal.

(19) The learned trial Court believed
the evidence of Raj Bahadur (P.W.1) and
Jaswant Singh (P.W.2) and found the
appellants Radhey Shyam and Siyaram
guilty for the offences punishable under
Sections 302 and 201 I.P.C., whereas
appellants Jagdish and Raj Kumar for the
offences punishable under Section 302 read
with Section 34 I.P.C. and 201 I.P.C. and,
accordingly, convicted and sentenced the
appellants
in
the
manner
stated
in
paragraph-2.

(20) As mentioned earlier, aggrieved by
their convictions and sentences, appellants
preferred the instant appeal and during the
pendency of this appeal, appellant nos. 1, 3
and 4 died and their instant appeal stand
abated. The present appeal is surviving on
behalf of the appellant no.2-Raj Kumar, thus,
this Court proceeds to hear the appeal on
behalf of the appellant no.2-Raj Kumar.

(C) APPELLANTS' CASE

(21) On behalf of appellant no.2-Raj
Kumar, Sri Jai Pal Singh, learned Amicus
Curiae has argued that :-

A)
P.W.1-Ram
Bahadur
and
P.W.2-Jaswant Singh are interested witnesses
as the brother of accused Radhey Shyam,
namely Onkar stood witness against Pradhan
Jaswant Singh (P.W.2) and Raj Bahadur
(P.W.1) and his brother was a witness against
Raj Bahadur (P.W.1) and due to that enmity
and just to take revenge, P.W.1-Ram Bahadur
and P.W.2-Jaswant Singh gave false evidence
against the appellants. According to him,
P.W.1-Ram Bahadur and P.W.2-Jaswant
Singh are not the eye-witness. Moreso, both
P.W.1 and P.W.2 have criminal record. In
this regard, learned Amicus Curiae appearing
on behalf of the appellants has placed
reliance upon Shaikh Nabab Shaikh Babu
Musalman and others Vs. State of
Maharashtra : 1993 Supp. (2) SCC 217;
Vijaysing Dharamdas Thakar Vs. State of
Gujarat : 1996 Crl. L. J. 2932; Surendra
Pratap Chauhan Vs. Ram Nail and others
: 2001 Crl. L. J. 98.

B) The medical evidence is not
corroborated with the statement of the
prosecution
witnesses.
P.W.2-Jaswant
Singh, in his examination-in-chief, in
paragraph-8 has stated that "eqfYteku jk/ks';ke
o fl;kjke [kMs gq, >qddj ckadk ls Jhiky dk lj
dkV jgs FksA rhu&rhu] pkj&pkj ckadk nksuks us pyk;s
gh FksA eSus ckadk ds fu'kku tehu ij ugh ns[ksA"
Whereas P.W.5 Dr. J.V. Singh, who
conducted the post-mortem of head less
body
of
the
deceased
Sripal,
has
categorically deposed in paragraph-11 that
"pksV ua0 1 ,d gh okj ls igqpk;h gqbZ FkhA vf/kd
okj ls igaqpkbZ gqbZ ugh FkhA" In these
backgrounds, his submission is that this
itself belies the prosecution case.
2 All. Radhey Shyam & Ors. Vs. State
625

C) P.W.5-Dr. J.V. Singh, who
conducted the post-mortem of the head less
body of the deceased Sripal, has stated in
his examination-in-chief in para-5 that on
internal examination, it was found that on
the seventh cervical vertebra, both carotid
arteries were cut across; the swallowing
tube was also cut across the seventh
cervical; the stomach was empty; in the
small intestine, there was liquid faecal
matter and gas; and there was faecal matter
and gas in the large intestines. PW.5, in
cross-examination, has stated that there
may be a difference of six hours here and
there of the death of the deceased. Thus,
this belies the prosecution case and perhaps
the
deceased
Siyaram
was
assaulted
sometime in the night while gone for call of
nature.

D) The incident occurred on
19.09.1981 at 07:00 a.m. The inquest of the
head
less
body
was
conducted
on
19.09.1981. The head was recovered on
27.09.1981 on the pointing out of Sumkesh
Chandra, who is the brother of informant
P.W.1-Ram Bahadur, by the police. P.W.6B.L. Sahani, who conducted the postmortem of the head on 28.09.1981, has
stated that he could not tell that as to how
and in what manner, the lower portion of
the neck was being cut. This witness was
also shown the post-mortem report of the
head less body of the deceased Sripal
(Ext.Ka.2) prepared by Dr. J.V. Singh
(P.W.5) and a specific question was asked
from him as to whether the unknown
recovered head had in any manner related
to the headless body of the deceased Sripal,
he (P.W.6) has stated that it could not be
ascertained because in the post-mortem
report (Ext. Ka.2), 7th cervical vertebra
was cut, whereas in his report, only bones
of 4th cervical vertebra was present and
5th, 6th and 7th vertebra were not present.
Further, the head was of a man of about 45
years. In his cross-examination, P.W.6 has
stated that the unknown recovered head
could be of a man of 36 years and the
maximum age of that man could be 60
years or 65 years. His submission is that the
investigation is tainted and both P.W.1 and
P.W.2 had prejudiced the mind of the
Investigating Officer by fixing the identity
of the head of Sripal after nine days of the
incident but no D.N.A. test report or no
expert opinion was obtained to the effect
that Head and Headless body belong to the
same person, even though the head was
found in a decomposed position.

E) Madhu, the so-called wife of
the deceased Sripal and Rajneesh, who is
the nephew of the deceased Sripal, have not
lodged the F.I.R. nor produced them before
the Court for recording their evidence by
the prosecution, although they have been
made a witness in the charge-sheet.

F) Appellant-Raj Kumar has no
motive
to kill
the
deceased
Sripal.
According to the prosecution, the only
allegation against appellant-Raj Kumar is
that he and Jagdish caught hold of the
deceased Sripal and there is no allegation
against them of causing injuries to the
deceased Sripal. According to him, after
the death of Sripal, Madhu along with her
mother and brother left the village
Akohara. He has stated that no marriage
was taken place of Madhu with the
deceased Sripal. The deceased Sripal was
aged about 45 years and Madhu was aged
about 14-15 years only at the time of the
incident.