Allahabad High Court
Radhey And Another vs State Of U.P. on 14 February, 2023
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 25.01.2023 Delivered on 14.02.2023 Court No. - 1 Case :- CRIMINAL APPEAL No. - 86 of 1996 Appellant :- Radhey And Another Respondent :- State of U.P. Counsel for Appellant :- S.K.Shukla,Aditya Kumar Shukla,Arvind Kumar,Dilip Kumar Singh Chauhan,Shivendra Pratap Singh Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
(Delivered by Hon'ble Ramesh Sinha, J.) INTRODUCTION (1) Three accused persons, namely, Asha Ram, Radhey and Ram Nath Yadav, were tried by the learned Sessions Judge, Barabanki in Sessions Trial No. 174 of 1992 : State Vs. Asha Ram and others arising out of Case Crime No. 13 of 1992, under Sections 302, 504, 506 I.P.C., Police Station Mohammadpur, Fatehpur, District Barabanki.
(2) Vide judgment and order dated 14.02.1996, the learned Sessions Judge, Barabanki, convicted and sentenced the accused Asha Ram under Section 302 I.P.C. to undergo imprisonment for life, whereas accused Radhey and Ram Nath under Section 302 read with Section 114 I.P.C. to undergo imprisonment for life.
(3) Feeling aggrieved by the aforesaid judgment and order dated 14.02.1996, the accused Asha Ram preferred Criminal Appeal No. 91 of 1996, whereas accused Radhey and Ram Nath preferred the instant Criminal Appeal No. 86 of 1996.
(4) It is pertinent to mention that during pendency of the aforesaid criminal appeals, accused Asha Ram died, hence Criminal Appeal No. 91 of 1996 filed by him stood abated vide order dated 22.09.2021. Accused/appellant no.2 (Ram Nath Yadav) of the instant criminal appeal also died, hence the instant criminal appeal filed on his behalf stood abated vide order dated 21.08.1998.
(5) Now, the instant appeal only survives in respect of accused/ appellant no.1-Radhey.
FACTUAL MATRIX (6) The complainant, Aslam (P.W.1), brother of the deceased Rafiq, lodged a complaint/F.I.R. against the accused persons for having killed his brother Rafiq. It was stated in the complaint/F.I.R. that on 24.01.1992, at about 02:30 p.m., a panchayat to solve a dispute of the land between Laloo Awasthi (P.W.2) and accused Asha Ram was going on the land in dispute situated in eastern side of Keshrai. In the said panchayat, Mohd. Rafiq (deceased), Ram Sumiran, Taj Mohammad (P.W.3), Aslam (P.W.1), Munir, Junid, Mohd. Sanif and others were present. Accused Radhey and Ram Nath Yadav were also present from the side of their brother Asha Ram (accused). It was alleged that during the panchayat, Rafiq (deceased) told to accused Asha Ram that ''U;k; dh ckr djks T;knk xjhc dks er lrkvks' (talk about justice and do not torture poor too much). This was not relished by accused Asha Ram. Thereafter, accused Radhey and Ram Nath Yadav exhorted the accused Asha Ram that ''ekj yks lkys dks ;g ykyw dh rjQnkjh dj jgk gS' (kill the bastered as he is favouring Lalu). On this exhortation, accused Asha Ram fired a shot from his licensee single barrel gun upon Rafiq, as a consequence of which, Rafiq (deceased) sustained fire arm injuries and succumbed to injuries instantaneously. Thereafter, accused, while threatening, fled away towards east. At the place of occurrence, an empty cartridge and a miss cartridge were lying.
(7) Thereafter, complainant Aslam (P.W.1) got the written report (Ext. Ka.1) of the aforesaid incident scribed by Kafil Hasan at Belhara village, who after scribing it read it over to him. He, thereafter, made his signature on it and then he proceeded to Police Station Mohammadpur and lodged it.
(8) The evidence of P.W.6-Ram Chandar Yadav shows that on 24.01.1992, he was posted as Head Moharrir at Police Station Mohammadpur and on the said date, on the basis of written report (Ext. Ka.1) submitted by Aslam (P.W.1), he wrote the chik FIR (Ext. Ka.16) and entered the case in the general diary vide report no. 21 at 17:45 hours (Ext. Ka.17).
(9) A perusal of the chik FIR shows that the distance between the place of incident and police station was 12 kilometers. It is significant to mention that a perusal of the chik FIR also shows that on its basis, a case under Sections 302, 504, 506 I.P.C. was registered against accused persons, Asha Ram, Radhey and Ram Nath Yadav.
(10) The investigation was conducted by SI Balram Saroj (P.W. 5). His evidence, in short, shows as under :-
On 24.01.1992, at 05:45 p.m., in his presence, Aslam (P.W.1) lodged the FIR at Police Station Mohammadpur, district Barabanki, on the basis of which Case Crime No. 13 of 1992 for the offence punishable under Sections 302, 504, 506 I.P.C. was registered. He immediately commenced the investigation and recorded the statement of Aslam (P.W.1), Lalu Awasthi (P.W.2) and Ramsumiran at police station and proceeded to the place of incident but when he reached at the place of occurrence, it was night, therefore, he could not perform panchayatnama. However, he searched the accused but they could not be traced out.
In the morning of 25.01.1992, he prepared the inquest report (Ext. Ka. 3) of the dead body of the deceased Rafiq. He also prepared a letter for C.M.O., challan lash, photo lash at the place of occurrence. Thereafter, he sealed the dead body of the deceased Rafiq and sent it for post-mortem through Constable Nand Kishore and Village Chaukidar Bhagwati. He also seized a missed cartridge and an empty cartridge from the place of occurrence under recovery memo (Ext. Ka.9). From the place of incident, he seized plain and blood stained soil in different containers under a recovery memo (Ext. Ka.10). He, thereafter, inspected the place of occurrence and prepared site plan (Ext. Ka.11). On 26.01.1992, at 11:35 a.m., he arrested accused Asha Ram and Ram Nath from Balhara Bus Station. He seized a single barrel gun and four live cartridges from the possession of accused Asha Ram under the recovery memo (Ext. Ka.12). He recorded the statements of accused Asha Ram and Ram Nath. On 04.02.1992, he got an information that accused Radhey had surrendered himself before the Court on 31.01.1992. On 06.02.1992, he recorded the statement of accused Radhey in jail. After completion of the investigation, he filed charge-sheet (Ext. Ka.15) against the accused persons on 07.02.1992 (11) The evidence of P.W.7-Nand Kishore Gaur shows that on 25.01.1992, he was posted as Constable at police station Mohammadpur, district Barabanki. On the said date, Inspector (P.W.5) prepared the inquest report of the dead body of the deceased Rafiq and thereafter, he and Village Chaukidar Bhagwati were sent along with the sealed dead body of the deceased Rafiq and requisite documents for post-mortem, pursuant to which, both of them brought the dead body of the deceased Rafiq and admitted it to Mortuary, Barabanki. On 26.01.1992, in his presence, seal of the dead body of the deceased was broken by the doctor and he identified the dead body of the deceased.
(12) The autopsy on the dead body of the deceased Rafiq was conducted on 26.01.1992 at 10:45 a.m. by Dr. Prem Prakash (P.W. 4), who found on his person ante-mortem injuries, enumerated hereinafter :-
"Multiple Gun shot wounds of entry having average size being 0.4 cm x 0.4 cm x chest cavity as well as abdominal cavity deep on the front of right side of chest in an area of 20 cm x 18 cm just right to the mid line extending up to the right mid axillary line and 2.5 cm below the right axilla. Margins of wounds are lacerated and inverted. Blackening and scorching is absent around wound."
The cause of death spelt out in the autopsy report of the deceased person was shock and haemorrhage as a result of ante-mortem injuries which he had suffered.
(13) It is significant to mention that in his deposition before the trial Court, Dr. Prem Prakash (P.W. 4) has reiterated the said cause of death and also stated therein that on 26.01.1992, at 10:45 a.m., he conducted the post-mortem of the dead body of the deceased Rafiq. On external examination of the dead body of the deceased, he opined that the deceased died about two days back; he was aged about 24 years; he was of average built; rigor mortis had passed off from the upper extremities and was present in the lower extremities; greenish discoloration was present over both iliac fossa of abdominal wall; both eyes were closed; and bloody fluid was coming out from both the nostrils. On internal examination of the dead body of the deceased Rafiq, he found that 7th right rib was fractured; right pleura was punctured; right pleural cavity contained one pint of blood; the middle and lower lobe of right lung were punctured; 12 metallic shots were recovered; pericardium was punctured; abdominal cavity contained one pint of blood; semi-digested food was present in small intestine; large intestine was half full of faecal matter and the right lobe of liver was punctured and 8 metallic shots were recovered. He proved the post-mortem report (Ext. Ka. 2). He further deposed that the ante-mortem injuries suffered by the deceased person could be attributable by a gun or fire arm on 24.01.1992 at 02:30 p.m., which was sufficient to cause death in ordinary course.
(14) It is pertinent to mention that during the investigation, the blood stained soil and the clothes of the deceased were sent for chemical analysis. The report of analyst (Ext. Ka.8) shows the presence of human blood on the soil collected from the place of occurrence as well as clothes of the deceased. The recovered gun of the accused, missed cartridge and the empty cartridges were also sent to the Ballistic Expert and its report (Ext. Ka.19) shows that the empty cartridge found on the place of occurrence by the Investigating Officer, had been fired from the gun of accused Asha Ram.
(15) The case was committed to the Court of Sessions in the usual manner wherein the accused Asha Ram was charged under Section 302 I.P.C., whereas accused/appellants Radhey and Ram Nath Yadav were charged under Section 302 read with Section 114 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.
(16) During trial, in all, the prosecution examined seven witnesses. Three of them, namely, the complainant Aslam (P.W. 1), Lalu Awasthi (P.W.2), and Taj Mohammad (P.W.3), were examined as eye-witnesses and other three witnesses, namely, P.W.4-Dr. Prem Prakash, who conducted the post-mortem of the deceased Rafiq, P.W.5-Balram Saroj, who conducted the investigation of the case and filed charge-sheet against against accused persons, P.W.6-Ram Chandar Verma, the scribe of the chik F.I.R., P.W.7-Nand Kishore Gaur, who had taken the dead-body of the deceased for post-mortem, were examined as formal witnesses and their testimonies have been referred to hereinabove. From the side of defence, Bihari was examined as D.W.1.
TESTIMONIES OF EYE-WITNESSES (17) P.W.1-Aslam, who is the complainant and cousin of the deceased Rafiq, had deposed before the trial Court that he, Rafiq (deceased) and others had gone to the grove of Lalu Awasthi (P.W.2) in a panchayat. The panchayat was to take place to resolve the dispute of boundary between the grove and field of Asha Ram (accused) and Lalu Awasthi (P.W.2). In the panchayat, there were 10-11 persons, out of which he, Rafiq (deceased), Taj Mohammad (P.W.3), Munir, Sanif Junaid, Asha Ram (accused), Radhey (accused), Ram Nath Yadav (accused), Lalu (P.W.2) and Ram Sumiran were present. During the panchayat, his brother Rafiq (deceased) said to the accused Asha Ram that ''vk'kkjke rqe U;k; dh ckr djks xjhc vkneh dks er lrkvksA' (Ashram talk about justice and do not torture poor too much). On this, accused Asha Ram became annoyed and on seeing his annoyance, accused Radhey and Ram Nath exhorted accused Asha Ram that ''ykyw dh rjQnkjh dj jgk gS ekj yks lkys dksA' (kill the bastered as he is favouring Lalu). Accused Asha Ram, then, fired a shot at Rafiq (deceased) from his licensed single barrel gun, but it got missed. After that accused Radhey and Ramnath again exhorted to kill Rafiq (deceased). Accused Asha Ram, then, removed the missed cartridge from his gun and reloaded another catridge in his gun and fired again at Rafiq (deceased), which hit upon the chest and armpits of Rafiq (deceased), as a consequence of which, Rafiq (deceased) fell down on sustaining injuries and succumbed to his injuries. Thereafter, he (P.W.1) and others tried to apprehend the accused, Asha Ram (accused) again reloaded his gun and threatened them that if they move forward, then, he would also kill them. All three accused, thereafter, fled away towards eastern direction.
P.W.1 had further deposed that lot of blood was present at the place where Rafiq (deceased) fallen down and a missed catridge and an empty catridge were also present there. After the incident, he went to the police station Mohammadpur Khala and on the way at village Belhara, he got the report (Ext. Ka.1) scribed by one Kafil Hasan and lodged the same at police station Mohammadpur Khala. The Inspector had recorded his statement at the police station.
(18) P.W.2-Lalu Awasthi had deposed before the trial Court that his land was situated at the hamlet of village Kesrai. On the south side of his field, grove of accused Asha Ram was situated. The southern boundary of his field and the northern side of the garden of accused Asha Ram are the same. His dispute with Asharam was that his field was about 4-5 logs ahead in width on south side of the garden of Asha Ram. Kanoongo/Lekhpal had told it after measuring the same and after measuring, Kanoongo/Lekhpal had made a mark of it in the field. He, therefore, wanted to build a med (boundary) on that mark, but Asha Ram did not allow him to build the med (boundary). After that, he called the panchayat. In the panchayat, he called Sanif, Munir, Aslam (P.W.1), Taj Mohammad (P.W.3), Rafiq (deceased), Junid, Ram Nath (accused), Asha Ram (accused), Radhey (accused), Lalu and Sumiran. At around 1:30 pm, Ram Nath, Asha Ram, Radhey, Lalu and Ram Sumiran reached at his field i.e. the place of occurrence. After that, at around 02:15 p.m., six persons including Rafiq (deceased) reached there. Rafiq (deceased) said that '';s xjhc vkneh gS] fdruh ijs'kkuh ls bldks uiok;k gS blfy, bldk eku fy;k tkos ijs'kku u fd;k tkosA tc dkuwuxks o ys[kiky uki x, gS rks gd dk Qslyk gS eku fy;k tkosA' On this, accused Asha Ram got annoyed. Accused Radhey and Ram Nath exhorted that ''ykyw egkjkt dk i{k dj jgk gS bls ekj nksA' Accused Asha Ram, then, fired from his licensed gun at Rafiq (deceased), but it was missed. After that accused Asha Ram again reloaded his gun and fired at Rafiq (deceased), which hit on the chest of Rafiq (deceased), as a consequence of which, Rafiq fell down on earth and died. When he and others tried to apprehend the accused, Asha Ram again reloaded his gun and fled away towards eastern direction while threatening them. The blood was present at the place where Rafiq (deceased) fell down. The Inspector had come around 08:00 p.m. at the place of occurrence and interrogated him.
(19) P.W.3-Taj Mohammad had deposed before the trial Court that on the date of the incident, he, Rafiq (deceased), Juned, Sanif, Munir, Aslam (P.W.1) went to the grove of Asha Ram for panchayat. When they reached there, he found that Lal Pandit, Asha Ram, Ram Nath, Radhey and Ram Sumiran were already present there. In the panchayat, Rafiq (deceased) told to Asha Ram that ''xjhc dks er lrkvks ys[kiky us tks fu'kku yxk fn;k gS mls eku yksA' On this, Asha Ram got annoyed. Accused Ram Nath and Radhey, then, exhorted that ''e`rd ¼jQhd½ ykyw dh rjQnkjh dj jgk gS bldks ekj nks' Accused Asha Ram, then, fired from his gun but it was missed. Asha Ram, again, removed the missed cartridge and reloaded another cartridge in his gun and fired, which hit the right chest of Rafiq (deceased), as a consequence of which, Rafiq fell down and died. Thereafter, when they tried to apprehend Asha Ram, he again reloaded his gun. Then, on account of fear, they did not move forward. The blood was present at the place where Rafiq fallen down and a missed cartridge and an empty cartridge were also present there.
STATEMENTS OF ACCUSED RECORDED UNDER SECTION 313 Cr.P.C.
(20) The statements of accused persons, namely, Asha Ram, Radhey and Ram Nath Yadav, under Section 313 Cr.P.C. were recorded. Accused Asha Ram had stated in his statement that no panchayat took place and that he had himself gone to lodge the report and was detained by the police. Accused Asha Ram further stated that Taj Mohammad (P.W.3), Aslam (P.W.1), Rafiq (deceased), Lalu (P.W.2) and Ram Sumiran were constructing a mend in his grove and when he protested, Lalu (P.W.2) exhorted others to kill him and, thereafter, Rafiq (deceased) armed with kanta and others armed with farwa run towards him and Rafiq (deceased) raised his kanta to give a blow to him. He then fired shot from his licensed single barrel gun in his self-defence.
Accused/appellant no.1-Radhey had stated in his statement that he was not present on the spot and has been falsely implicated so that his property may be usurped.
Accused/appellant no.2-Ram Nath had stated in his statement that he has been falsely implicated due to enmity.
DEFENSE WITNESS (21) D.W.1-Bihari had deposed before the trial Court that on the date of the incident, at around 02:00-02:30 p.m., he was going to the house of his maternal uncle situated in village Jaswant Nagar. When he reached near the grove of Asha Ram, then, he saw Lalu (P.W.2), Ram Sajiwan, Taj Mohammad (P.W.3), Rafiq (deceased) and others digging a nali in the grove of Asha Ram (accused), which was protested by Asha Ram (accused), on which these persons challenged Asha Ram (accused) and said that ''bUgs ekj nks vkSj lc dCtk dj yksA' Rafiq (deceased), then, ran towards Asha Ram (accused) and raised his kanta, on which Asha Ram (accused) fired a shot from his gun in his self-defence. This shot hit Rafiq (deceased) and he was shot dead.
FINDINGS OF THE TRIAL COURT (22) The trial Court believed the evidence of complainant P.W.1-Aslam, P.W.2-Lalu Awasthi and P.W.3-Taj Mohammad and discarded the defence version of self-defence and convicted and sentenced the accused persons in the manner stated in paragraph-2 here-in-above by means of the impugned judgment.
(23) Heard Shri Arvind Kumar, learned Counsel for the convict/appellant no.1-Radhey and Shri Arunendra, learned Additional Government Advocate for the State.
ARGUMENTS (24) Learned Counsel for the convict/appellant no.1 has argued that three prosecution witnesses, P.W.1, P.W.2 and P.W.3 had given convict/appellant no.1-Radhey the role of exhortation only and no further overt act has been assigned to him and it was only stated by the prosecution witnesses as well as the prosecution that he and appellant no.2-Ram Nath exhorted the co-accused Asha Ram to kill the deceased Rafiq and the fire arm was used by co-accused Asha Ram. His submission is that the prosecution witnesses had falsely implicated the convict/ appellant no.1-Radhey only because they wanted to put the accused persons behind the bars because of the land dispute between the parties.
(25) Making the aforesaid submission, learned Counsel for the appellant has submitted that the prosecution has failed to prove the charges levelled against appellant no.1-Radhey beyond reasonable doubt, hence the the conviction and sentence of the appellant no.1-Radhey is liable to be set-aside.
(26) Per contra, learned Additional Government Advocate has submitted that in the facts and circumstances of the case, the trial Court has not committed any error while convicting appellant no.1-Radhey. He has submitted that appellants, Radhey and Ram Nath Yadav as well as co-accused Asha Ram were named in the FIR. All the three eye-witnesses, PW 1, PW2 and PW3 had supported the prosecution story and in their testimonies, they categorically stated that it was on the exhortation of appellants, Radhey and Ram Nath Yadav, co-accused Asha Ram fired upon the deceased Rafiq from his licensed single barrel gun, as a consequence of which, Rafiq died on spot on account of fire arm injuries. He further aruged that the presence of the accused persons has been established and proved by the prosecution by examining PW1, PW2 and PW3, who are the eye witnesses and their evidence has been believed by the trial Court. Thus, the trial Court has rightly come to the conclusion that it is a case of intentional murder and further the motive has been established and proved by the prosecution, hence the trial Court has rightly convicted the appellant no.1-Radhey under Section 302 read with Section 114 I.P.C. The instant criminal appeal is liable to be dismissed.
FINDINGS (27) We have examined the submissions advanced by the learned Counsel for the parties and gone through the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statements of the appellants recorded under Section 313 Cr.P.C; and the impugned judgment as well as lower Court record.
(28) It would become manifest from the aforesaid that the trial Court has based the conviction of the appellant no.1-Radhey on the ocular account testified by P.W. 1-Aslam coupled with the evidence of Lalu Awasthi (P.W. 2) and Taj Mohammad (P.W. 3).
(29) It is required to be noted that in the present case, right from the very beginning, the name of appellants and co-accused Asha Ram were disclosed by the prosecution. There are three eye witnesses to the incident, namely, PW1, PW2 and PW3 and all the prosecution witnesses have named appellant no.1-Radhey, appellant no.2-Ram Nath and co-accused Asha Ram. P.W.1-Aslam had stated that co-accused Asha Ram and appellant no.1-Radhey are the real brothers and there is no third brother other than these two brothers. Co-accused Asha Ram has no issue, whereas appellant no.2-Radhey is a bachelor.
(30) All the prosecution witnesses, P.W.1, P.W.2 and P.W.3, have stated before the trial Court in their deposition that 10-11 persons including P.W.1, P.W.2, P.W.3, Rafiq (deceased) and three accused persons, namely, Asha Ram, Radhey and Ram Nath, were present in the Panchayat, which was held to resolve the land dispute arose between accused Asha Ram and Lalu Awasthi (P.W.2). During the panchayat, co-accused Asha Ram said to Asha Ram (co-accused) that ''talk about justice and not torture the poor'. Co-accused Asha Ram, then, got annoyed. Appellants, Radhey and Ram Nath, then, exhorted Asha Ram saying that ''ekj yks lkys dks ;g ykyq dh rjQnkjh dj jgk gSA' On this exhortation, Asha Ram fired a shot from his licensed single barrel gun at Rafiq (deceased) but it was missed, upon which appellants, Radhey and Ram Nath, had again exhorted Asha Ram to kill Rafiq (deceased) and then Asha Ram had removed the missed cartridge from his gun and again reloaded his gun and fired at Rafiq (deceased), as a consequence of which, Rafiq died on spot.
(31) From perusal of the testimonies of eye-witnesses, P.W.1, P.W.2 and P.W.3, it transpires that Rafiq (deceased) had no enmity with the accused persons but the accused persons had enmity with Lalu Awasthi (P.W.2) in regard to dispute of land. In the panchayat, 10-11 persons were present. Accused Asha Ram was armed with his licensed single barrel gun, whereas appellants and other persons including the prosecution witnesses present at the place of occurrence were not armed with any weapon. The incident had occurred due to saying of Rafiq to Asha Ram that ''talk about justice and not to torture poor'. When appellants, Radhey and Ram Nath, exhorted Asha Ram to kill Rafiq, then, Asha Ram fired from his single barrel gun, but it was missed. At that moment, the distance between the accused Asha Ram and Rafiq was about 7-8 steps. In the site plan (Ext. Ka.11), Rafiq (deceased) was shown to be standing adjacent to Lalu Awasthi (P.W.2), whereas accused Asha Ram was shown to be standing 4 steps away from Rafiq (deceased) and Lalu Awasthi (P.W.2) and other persons were not shown in the site plan. None of the prosecution witnesses have stated in their testimonies that the accused persons have also tried to kill Lalu Awasthi (P.W.2) from whom enmity of land arose with the accused persons.
(32) There is also no dispute to the fact that when the first fire was made by accused Asha Ram from his single barrel gun on the exhortation of appellants, Radhey and Ram Nath and the same was missed, Rafiq went behind about 2-3 steps but he was not trying to ran away and was standing there till the second fire hit him nor Rafiq tried to catch Asha Ram in order to save him when the first fire got missed nor other persons, who were present there, were also tried to catch Asha Ram or stopped Asha Ram to reload his gun and again fire. The circumstances cast doubt about the story of the prosecution, particularly the fact that prosecution has failed to show cogent motive/intention of the accused persons to kill Rafiq, who had no previous enmity with the accused persons.
(33) From the aforesaid discussion coupled with the testimonies of the prosecution witnesses, it transpires that three prosecution witnesses had given the appellant no.1-Radhey the role of exhortation only and no overt act has been assigned to him and, therefore, there might be an exaggeration of his role and false implication by the witnesses in order to see that accused Asha Ram and his son Radhey are to put behind the bars because of the land dispute between the parties.
(34) It is difficult to separate falsehood from the truth, where some material aspects of the occurrence seem to have been deliberately withheld. It is a well- established principle of criminal jurisprudence that when two possible and plausible explanations co-exist, the explanation favourable to the accused should be adopted.
(35) For the aforesaid reasons, we are of the considered view that the appellant no.1-Radhey is entitled to get the benefit of doubt.
CONCLUSION (36) Accordingly, the instant criminal appeal filed on behalf of appellant no.1-Radhey is allowed. The impugned judgment and order dated 14.02.1996 passed by the Sessions Judge, Barabanki in Sessions Trial No. 174 of 1992 so far as it relates to appellant no.1-Radhey is hereby set-aside.
Appellant no.1-Radhey is acquitted for the charges under Section 302 read with Section 114 I.P.C. He is on bail and he need not surrender. His bail bonds are cancelled and sureties discharged.
Appellant No.1-Radhey is directed to file a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973.
(37) Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
(Mrs. Renu Agarwal, J.) (Ramesh Sinha, J.)
Order Date :- 14th February, 2023
Ajit/-