RADHEY SHYAM versus STATE OF U.P.

Citation: [2008] 16 S.C.R. 131 · Decided: 18-11-2008 · Supreme Court of India · Bench: TARUN CHATTERJEE, V.S. SIRPURKAR · Disposal: Dismissed

Judgment (excerpt)

[2008] 16 S.C.R. 131 
RADHEY SHYAM 
v. 
STATE OF U.P. 
(Criminal Appeal No. 1833 of 2008) 
NOVEMBER 18, 2008 
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B 
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[TARUN CHAITERJEE AND V.S. SIRPURKAR, JJ.] 
< 
PENAL CODE, 1860: 
s. 326 - Father and son were prosecuted uls 307 /PC 
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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 
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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, 
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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. 
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 1833 of 2008. 
., 
131 
H 
132 
SUPREME COURT REPORTS 
[2008] 16 S.C.R. 
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From the final Judgment and Order dated 8.12.2005 of the 
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High Court of Judicature at Allahabad in Criminal Appeal No. 
1909 of 1981. 
Kirpal Singh and K.S. Rana for the Appellant. 
S.N. Pandey and Chandra Prakash Pandey for the 
Respondent. 
The following Order of the Court was delivered : 
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 I PC 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. 
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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 
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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 
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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 
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about 3 AM., Badlu Ram felt irritation in the body and he woke 
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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 
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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 h

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