R.P.Tyagi vs State (Govt.Of Nct Of Delhi)

O R D E R

This appeal by way of special leave has been filed

impugning the judgment of the Delhi High Court dated 5th

March, 2008, whereby the death reference with respect to

the appellant's case has been declined and his appeal has

been allowed to the extent that the conviction under

Section 302 of the IPC recorded by the Additional Sessions

Judge has been modified to a conviction under Sec.304 Part II of the IPC and a sentence of 8 years R.I. along with a

fine of Rs.2,00,000/-.

As per the facts of the case the incident happened

on 16th August, 1987, (on the day of the Janmashtami

festival) when Constable Rishipal (DW.1) who was posted in

police station Vivek Vihar, where the appellant was the

SHO was stabbed by the deceased Mahender and his accomplice

Ram Kumar. Information about the stabbing incident was

received in the police station and a case under Sec.307

etc. was registered against the two. The police thereafter

launched a manhunt to trace the culprits but were unable to

do so and enraged by the turn of events the police -2-

officers allegedly picked up the family members and

neighbours of Mahender and Ram Kumar and confined them in

the police station Vivek Vihar where they were beaten and

humiliated and were told that until and unless the

absconding duo surrender they would not be released. It is

the case of the prosecution that two persons were produced

in the police station on 24th August, 1987 at 7.45 a.m. and

were administered a very severe beating by the appellant

and by some of the others present at his instance. On

account of the severe beating, Ram Kumar and Mahender

sustained serious injuries and were taken to the Swami

Dayanand Hospital, Shahdara and examined by Dr. A.K.Verma,

(DW-11) but as Mahender was in critical condition he was referred to the Lok Nayak Jai Prakash Hospital where he

died the next day.

Inquest proceedings were thereafter conducted by the

SDM S.S. Rathore, (PW.1) who indicted the police officers.

A second inquest proceeding was also held by Parimal Rai

(DW.7) who, however, gave a contrary finding in that Ram

Kumar and Mahender had been beaten by enraged members of

the public, after they had caused injuries to Rishpal (DW)

and it was on account of these injuries that Mahender had

died. It appears that due to public pressure, however, a

case under Sec.304/34 of the IPC was registered against

several persons including the appellant herein, on 11th

February, 1988, and after investigation an`untraced' report

was filed in the Court of the Metropolitan Magistrate, -3-

Karkardooma, who accepted the same. Tika Ram, Mahender's

father, thereupon filed a criminal complaint in the

Magistrate's Court which ultimately led to a trial,

conviction and sentence of death for the appellant by the

Court of Sessions and a modification in the conviction and

sentence by the High Court, which proceedings are now

impugned before us. The High Court has, in the course of

very lengthy judgment, examined the evidence threadbare and

noted that almost all the prosecution witnesses including

the mother, the brothers and other close relatives of the

deceased, who had all been picked up by the police as hostages to secure the arrest of Mohinder and Ram Kumar had

not supported the prosecution and had been declared hostile

and as Ram Kumar and Tika Ram the complainant had also

died before the trial concluded , there was little evidence

in favour of the prosecution except the formal evidence of

PW.1. S.S.Rathore, the SDM and the evidence of PW.8, 17

and 38 who too were not eye witnesses to the incident and

whose evidence was purely circumstantial in nature. The

Court thereupon looked for corroboration to the evidence of

some of the police witnesses who had supported the

prosecution and also fell back on the statements of some of

the defence witnesses, and re-appraised the evidence to

come to its conclusions.

Leave was granted by this Court on 29th August, 2008 and while granting leave the following order was made:

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"Leave granted.

Issue notice to the appellant as to why the conviction of the appellant shall not be recorded under Section 302 of the Indian Penal Code and sentence be enhanced. We, in exercise of jurisdiction under Article 142 of the Constitution of India further direct the Commissioner of Police of the National Capital Territory of Delhi to file an affidavit before this Court as to what action has been taken against the officer(s) concerned in the matter.

Bail application is rejected."

We are told by Mr. P.P. Malhotra, the learned A.S.G. appearing for the respondent that the affidavit has indeed

been filed. Mr. Malhotra has also assisted us on the other

question that has been raised by the admitting Bench.

Mr. Ranjit Kumar, the learned counsel for the

appellant has raised several arguments during the course of

the hearing. In particular he has submitted that the

appellant had been roped in under Sec.302/120-B of the IPC

and as all the co-accused had been acquitted, the question

of the applicability of Sec.120-B had to be ruled out. He

has also submitted that there was absolutely no evidence

which could involve the appellant in the matter and the

courts below had been primarily influenced by the fact that

the appellant was a police officer and he had apparently

beaten a suspect to death while he was in police custody. He has further argued that the sentence awarded to the

appellant was in any case excessive in the light of the

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fact that the conviction had been recorded under Sec.304

Part II of the IPC and even assuming though not conceding

that the appellant was responsible in some way in the

injuries that had been caused to Mahender which ultimately

lead to his death, the fact that Mahendr and his accomplice

Ram kumar were bad characters had been proved on record.

Mr. Ranjit Kumar has also referred us to various defence

documents on the file which show that several FIRs including an FIR under Sec.376 etc. of the IPC. had been

registered against them.

Mr. Malhotra has, however, supported the judgment of

the High Court and has further submitted that in the light

of the judgment of this Court in Virsa Singh vs. State of

Punjab (1958 SCR 1495) a case of murder had been clearly

spelt out against the appellant.

We have heard learned counsel for the parties at

length and gone through the record very carefully. This

case exemplifies the repeated observations that a delay in

the disposal of a criminal case leads to the destruction of

the prosecution case. The incident happened in the year

1987, and the evidence was recorded in the year 2004.

Little wonder therefore, that the almost all the prosecution witnesses including the mother, brothers,

uncles, etc. of Mahender and Ram Kumar had been declared

hostile as they had not supported the prosecution. It is

in this background that both the courts below had to

stretch the evidence slightly in order to arrive to a

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conclusion of guilt against the appellant. We are of the

opinion however that the reasons recorded by the trial

Court and High Court are germane and there is no reason to

interfere with the finding of the fact recorded by the

Courts below.

Mr. Malhotra's reliance on Virsa Singh's case is, however, misplaced. Virsa Singh's case was on its own

peculiar facts and its effect has in any case been whittled

down in Harjinder Singh vs. Delhi Administration (AIR 1968

SC 867) and Laxman Kalu Nikalje vs. The state of

Maharasthra (AIR 1968 SC 1390). In Laxman Kalu Nikalje vs.

State of Maharashtra it was held:

"Section 299 is in three part; first takes in the doing of an act with the intention of

causing death. As it was clear Laxman did not intend causing death and first part of Sec.299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause and that also, as we have shown above was not the intention of accused. The act which was done, was done with the knowledge the accused was likely by such act to cause death of deceased. The case case falls within the 3rd part of Sec.299 and will be punishable under the second part of Sec.304."

The question as to the quantum of sentence has been

argued by Mr. Ranjit Kumar with some insistence. He has

pointed out that the matter was of the year 1987. The

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appellant is presently in jail as per the orders of the

trial court and the High Court and has undergone about 3

years of the sentence and has paid the fine of

Rs.2,00,000/-. He has also been denied his retiral benefits

on account of his conviction in the present matter and is

now 67 years of age, and is in extremely indigent circumstances. Mr. Ranjit Kumar, accordingly, prays that

there should be some reduction in the sentence. In the

background of the above facts and that the conviction has

been made under Sec.304 Part II of the IPC, we confirm the

conviction as recorded by the High Court but reduce the

sentence from 8 years to five years and increase the fine

from rupees two lacs to five lacs. In default of payment of

fine, the appeals will be deemed to be dismissed in toto.

The fine if deposited shall be paid as compensation to

Mahender's mother PW.9, Raj Kali.

.................J. (HARJIT SINGH BEDI) .................J. (J.M. PANCHAL) New Delhi, November 12, 2009.