Radhey Shyam and Another vs State of U.P.

Heard Shri Salil Mohan, learned Counsel for the Appellants, and the learned Additional Government Advocate.

This criminal appeal has been preferred by Appellants Radhey Shyam and Kamlesh alias Kamleshwar against judgment and order dated 12.03.2010 passed by the Additional Sessions Judge, Court No. 3, Sitapur in Sessions Trial Nos. 688 of 2003, 689 of 2003 and 690 of 2003 whereby the Appellants have been convicted u/s 302/34 IPC read with Section 30 Arms Act and have been sentenced for maximum term of life imprisonment with fine stipulation.

We have gone through the judgment and record of lower court, including FIR, statements of prosecution witnesses and forensic expert report.

It comes out that it is a peculiar case where the FIR was lodged by complainant Kedar Nath alleging therein that while he was in a mango grove he was chased by the accused persons, who are six in number. They were armed with firearms and he was able to flee away from the spot, entered into his house, thereafter he ran away from the there and entered into house of one Bharose Chamar and remained hiding there, but the accused persons continued firing upon him due to which one Diwakar (deceased), a boy of three years, received firearm injuries and succumbed to the same. It comes out from the postmortem report that the boy (deceased) received four injuries on his body.

Argument advanced on behalf of the Appellants is that though six persons were named in the FIR, but only two persons (Appellants) have been convicted and sentenced; other four persons, who have also been assigned role of firing, have been acquitted of the charges levelled against them; there was no occasion and evidence on record so as to convicts the Appellants u/s 302 IPC; the licensed guns were recovered from the possession of the Appellants and were sent for forensic test along with cartridges found on the spot and forensic expert opinion/report is to the effect that these cartridges were not fired from the guns of the Appellants; and there was no occasion to fire on a three years old child and, as such, the case of the Appellants will not come within the parameters of Section 302/34 IPC. It is stated that the Appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. It is further stated that there is no likelihood of the appeal being heard and decided in near future.

Taking into consideration overall aspects of the matter we find it a fit case for bail.

Let Appellants Radhey Shyam and Kamlesh alias Kamleshwar, convicts of the aforesaid sessions trial, be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate concerned.

Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the Appellants within one month from the date of their release on bail.

Chief Judicial Magistrate concerned is directed to transmit to this Court photocopies of bonds and sureties filed by the Appellants to be preserved in the record maintained here.