# State of U.P v. Radhey Shyam & Ors - **Citation:** (2022) 3 ILRA 452 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-07 - **Case number:** Government Appeal No. 1653 of 2002 - **Bench:** Suneet Kumar, Brij Raj Singh, Brij Raj Singh - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-radhey-shyam-ors-47589 - **Pages:** 3 ## Headnote A. Criminal Law - The Court on finding serious contradictions in the statements of P.W. 1 and P.W. 2 rejected the appeal. Appeal Rejected. (E-10) ## Text 452 INDIAN LAW REPORTS ALLAHABAD SERIES (Order on Appeal) 30. Since the application seeking leave to file an appeal is rejected, the appeal also stands dismissed summarily at the admission stage. ---------- (2022)03ILR A452 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 07.12.2021 BEFORE THE HON'BLE SUNEET KUMAR, J. THE HON'BLE BRIJ RAJ SINGH, J. Government Appeal No. 1653 of 2002 State of U.P. ...Appellant Versus Radhey Shyam & Ors. ...Respondents Counsel for the Appellant: A.G.A. Counsel for the Respondents: A. Criminal Law - The Court on finding serious contradictions in the statements of P.W. 1 and P.W. 2 rejected the appeal. Appeal Rejected. (E-10) (Delivered by Hon'ble Brij Raj Singh, J.) 1. This government appeal has been preferred against a common judgment dated 23 January 2002 passed by the Special Judge/Additional District & Sessions Judge, Bijnor in Sessions Trial No. 39 of 1994 (State Vs. Radheyshyam and others) for offences under Sections 302 read with Section 34 I.P.C., Sessions Trial No. 181 of 1994 (State Vs. Jogendra) only for offences under Section 25 of the Arms Act and in Sessions Trial No. 182 of 1994 (State Vs. Radheyshyam) only for offences under Section 25 of the Arms Act, Police Station Kotwali Dehat, District Bijnor, by which the accused respondents have been acquitted. 2. As per the prosecution case, it is stated that Rajesh along with Radheyshyam, Ram Kumar and Jeet Singh with an intention to kill, earlier made an attempt to murder the complainant Dinesh Singh on 01.10.1993. A report was lodged by the father of the complainant in the police station alleging that the accused attempted earlier to kill his father but they were unsuccessful. The father of the complainant (Phool Singh) had gone outside the house on the call of nature on 16.11.1993 at 5.A.M., and on way back in front of Dharmvir's house, he was apprehended by Radheyshyam, Jitendra, Yogendra and Rakesh. Radheyshyam had 315 Bore Rifle and others had country-made pistol and all the four accused fired at his father. Hearing the sound of fire shots, the complainant and his uncle Suresh and some villagers reached the spot. The accused threatened them to dire consequences, in case they come to save the deceased or anyone who dares to lodge F.I.R. or comes forward as witness. The father of the complainant died on the spot. The villagers did not accompany the complainant to lodge the report, thereafter, the complainant went to his brother Brijpal Singh residing in Village Kiratpur. He took him to the police station and thereafter the report was lodged. 3. The charge sheet was submitted before the C.J.M., under Section 302 I.P.C. The accused denied the charge. The charge sheet was also filed under Section 25 of the Arms Act. 4. Prosecution, in order to prove the charge, produced P.W. -1 (Dinesh) (the complainant), P.W. -2 (Suresh Chandra, the 3 All. State of U.P. Vs. Radhey Shyam & Ors. 453 eye witness), P.W. -3 (Head Constable Chandrashekhar Yadav), P.W. -4 (Subodh Kumar, a Police Official), P.W. -5 (S.I. Bable Singh), P.W. -6 (Vijay Pal Singh S.I. Police), P.W. -7 (S.I. Police Harishchandra Singh), P.W. -8 (Dr. A.K. Kots) and P.W. - 9 (Ramji Mal Sharma, a Police Official). 5. The accused were confronted with the prosecution evidence and the circumstances under Section 313 Cr.P.C. They denied charge and pleaded that have been falsely implicated. 6. The trial court upon examining the prosecution evidence and the statements of witnesses, came to a conclusion that the prosecution failed to prove the charge against the accused respondents. Consequently, acquitted the accused respondents. Hence the present appeal. 7. We have heard Om Prakash Mishra, learned A.G.A. and perused the record with the assistance of the learned counsel. 8. P.W. -8 (Dr. A.K. Kots) conducted the post mortem on 17.11.1993 and noted three injuries on the body of the deceased, which is as under: "(1) Lacerated wound 02 cm x 1.5 cm muscle deep which was inside of forearm, 03 cm above from wrist joint. There was mark of blackening on this wound. (2) Lacerated exit wound 02 cm x 1.5 cm muscle deep above left elbow. Bullet tail was found on opening the wound and bone fractured. (3) Lacerated wound 01 cm x 01 cm cavity deep on left illium ........20 cm above from mid axillary ... no blackening was found and it was entry wound. Blood was clotted near all the wounds." 9. P.W. -8 recovered a bullet (18 gram) from the right side of the chest. The stomach of the deceased was empty. The cause of death opined by the medical expert was due to shock and haemorrhage as a result of excessive bleeding. The P.W. -8 further opined that the death was caused due to injury caused by rifle and country-made pistol. He further expressed an opinion that he was not sure as to how many bullets were fired on the deceased. He found only one bullet. The witness proved that the death was caused by fireshot injury. 10. P.W. -1 (Dinesh) (the complainant) and P.W. -2 (Suresh Chandra), are the witnesses of fact. P.W. -3 to P.W. -9, are formal witnesses, who have proved the documents. P.W. -5 (S.I. Bable Singh) stated before the court that after stopping the car in the village the police party went to the tubewell. P.W. -6 (Vijay Pal Singh S.I.), admitted in the cross examination that the police party reached by a vehicle and thereafter took the path going through the fields of the village to reach the tubewell. The accused were apprehended by them. It is thus, clear that the entire recovery proceeding is highly doubtful. 11. P.W. -1 and P.W. -2 reiterated the version of the F.I.R. in examination in chief, but, P.W. -1 admitted at page -16 of his cross examination that he along with his maternal uncle Suresh Chandra (P.W. -3), while were sitting in their verandah when gun shot fire was heard. P.W. -2 also stated in his cross examination at pages 7-8 that he heard sound of four round of gun shot fire at an interval of 1-2 seconds. He further admitted that to the 454 INDIAN LAW REPORTS ALLAHABAD SERIES eastern side, the house of Phool Singh is situate. When he reached the place of occurrence, deceased had died. Pertinently, from the cross examinations of P.W. -1 and P.W. -2, it is evident that both these witnesses were not present at the place of incident at the time of occurrence. They went to the place of incident after the death of the deceased. Further between the place of incident and the place of presence of the witnesses, there lies a pond and wall, thus the witnesses P.W. -1 and P.W. -2, were not in a position to see the incident as per the site map. 12. P.W. -1 has stated that after the incident the villagers did not support him in lodging the report, therefore, he went to call his brother Brajpal, 14 Kms. away to village Kiratpur. His brother was not found in the village, he thereafter went to the factory, 5 Kms. away from Kiratpur at Nazibabad Road. His brother came back to his village Kiratpur and they both did not go to the police station directly which was situate at Kiratpur. P.W. -1 came to his village along with his brother Brajpal, thereafter, they went to police station and report was lodged. P.W. -1 has admitted that he reached Kiratpur at 11 A.M. and thereafter went to the factory which was 4-5 Kms. away. After 10-15 minutes, Brajpal came from factory and they came back to their village. In contradiction P.W. -2 stated that only he had gone to call Brajpal from Kiratpur. Thus, the statements of both the witnesses are totally contradictory to each other. It is improbable that report was lodged at 11:30 A.M., as the distance of Kiratpur is 14 Kms. from the place of incident and it is admitted that at 11 A.M., P.W.-1 reached Kiratpur. In such a situation, it is improbable to reach the police station at 11:30 within 30 minutes, further, P.W. -1 admitted that his brother Brajpal was not found in the village and he went to the factory, 4 Kms. away to take Brajpal. P.W. -2 (Suresh Chandra), brother in law (Sala) of the deceased, is an interested witness and witness of chance. 13. The recovery of 315 Bore rifle and four live cartridges of 315 Bore from the Radheyshyam is in contradiction to the bundle presented before the trial court. One countrymade SBBL gun and four 315 Bore miss-fired cartridges was produced by the prosecution. The recovery alleged to have been made from the accused is not that was placed before the court. 14. It is evident that there is serious contradictions in the statements of P.W. -1 and P.W. -2. They claim to be occular witness and of having reached the site of the incident. The prosecution failed to prove their presence at the site. The site was not visible from the spot of their presence as per their statement and site map. The F.I.R. also appears to be ante time and at the same time the recovery of fire arm and cartridges employed in the commission of the offence is improbable and doubtful. We are unable to persuade ourselves in taking an opinion different from that of the trial court. 15. The application seeking leave to appeal is rejected. 16. The appeal, in consequence, stands dismissed. ---------- (2022)03ILR A454 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.03.2022 BEFORE THE HON'BLE VIVEK KUMAR BIRLA, J. THE HON'BLE SUBHASH VIDYARTHI, J. Government Appeal No. 2300 of 1984 State of U.P. ...Appellant Versus Phool Singh & Ors. ...Respondents Counsel for the Appellant: