RADHEY SHYAM Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) I agree with the opinion of my brother Hon'ble M. A. Khan, J. that both the appeals be allowed and the conviction as well as the sentences imposed upon the appellants be set aside. However I would like to add few words.

(2.) P.W. 14 Suresh Kumar (husband of the deceased Smt. Nirmala Chaudhary) lived in house No. KD-41 Kavi Nagar along with his four brothers including P.W. 2 Virendra Nath Agarwal. It has come in the testimony of P.W. 2 Virendra Nath Agarwal that there were seven servants who were working in the house and they all resided in two rooms which were towards the back side of the main residential building. P.W. 6 Lekhraj Singh who was working as chowkidar has also admitted that at the relevant time 7-8 servants were employed and were working. P.W. 2 Virendra Nath Agarwal has deposed that he conducted a search in the servant quarter on 1-12-1980 and at that time Sudhir Kumar had accompanied him. During the course of search, he recovered a diary from the possession of Balbir appellant and a post-card from the possession of Radhey Shyam appellant. P.W. 4 Radha Krishna Agarwal has deposed that at about 5 p.m. on 2-12-1980 the appellant Radhey Shyam, who was in police custody, led them to his room (servant quarter) and gave a pant, a baniyan (Ex. 3 and Ex. 4) to the Investigating Officer of the case. These clothes were hanging on a 'algani' (a rope or cord tied at both the ends over which clothes are hung). Thereafter Balbir accused who was also in custody, gave a shirt, baniyan, pant and a underwear (Ex. 5, Ex. 6. Ex. 7 and Ex. 8) which were hanging on a peg fixed in the wall. According to the prosecution, there were blood stains on these clothes but the same had been washed. It looks extremely surprising that the appellants kept their so-called blood stained clothes either on the algani or on the peg which was visible to everyone and that too in the room which they shared with other servants. According to P.W. 2 Virendra Nath Agarwal, he had conducted a search of the servant quarter a day earlier on 1-12-1980 and he recovered such small articles like a diary and a post-card from the possession of the appellant. There is no reason why he could not locate or find out the blood stained clothes which were hanging on a algani or on a peg and had not been kept concealed in a box or in some secret place. Therefore the recovery of the clothes at the pointing out of the accused subsequently in the evening of 2-12-1980, looks highly suspicious.

(3.) The prosecution had also relied upon the testimony of P.W. 3 Kashi Ram to whom Radhey Shyam appellant is alleged to have made an extra-judicial confession, Kashi Ram was working as chowkidar in A.D.B. School and was not a regular servant in the house of the deceased. He has deposed that he used to look after the cow in the bungalow No. KD-41 for which he was being paid Rs. 70.00 per month. According to his statement. Radhey Shyam met him next day in the afternoon and informed that he along with Balbir appellant had committed the murder of Nirmala Devi and had concealed the cash amount stolen from there. His statement shows that though the confession was made to him by Radhey Shyam on 29-11-1980 but he disclosed this fact after three days to the Investigating Officer. His statement does not show that he made any disclosure about this to any family members of the deceased like P.W. 14 Suresh Kumar or P.W. 2 Virendra Nath Agarwal. Three family members and inmates of the house namely P.W. 2 Virendra Nath Agarwal, P.W. 14 Suresh Kumar and P.W. 11 Smt. Kamlesh Agarwal (wife of Vijay Kumar who is brother of Suresh Kumar) have been examined in the case and no one has stated that P.W. 3 Kashi Ram told them anything about the confession alleged to have been made by Radhey Shyam appellant to him. If Radhey Shyam appellant had really made any confession to him, his first reaction should have been to inform the family members of the deceased about the said fact. The evidence is completely silent about it and the only inference possible is that he did not disclose the said fact to any family member though after three days he claims to have informed the Investigating Officer of the case about the alleged confession. There appears to be no reason why Radhey Shyam appellant would make a confession to him. The testimony of P.W. 3 Kashi Ram does not at all inspire confidence.