IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.976-977 OF 2002

Bhoopat Singh                     ...Appellant(s)

Versus

J.B. Katariya                            ...Respondent(s)

With Criminal Appeal Nos.980-981 of 2002 and 978 of 2002

O  R  D  E  R

By this order we are disposing of the appeals filed  

by  the  complainant,  State  of  U.P.  and  one  of  the  three  

accused, namely, J.B. Katariya (hereinafter referred to as  

`the appellant’) against judgment dated 14.2.2002 rendered  

by the Division Bench of Allahabad High Court in Criminal  

Appeal Nos.2350 of 1997, 22 of 1998 and 1315 of 1998.

The appellant was tried for offences under Sections  

302 and 342 of the Indian Penal Code, 1860 (for short `the  

I.P.C.’)  and  Sections  7  and  13  of  the  Prevention  of  

Corruption Act.  The other two accused, namely, Ghanshyam  

Sharma and Ram Narain were tried for offences under Sections  

302 read with Section 34 and 342 I.P.C. The trial Court  

convicted  the  appellant  under  Section  302  I.P.C.  and  

sentenced  him to  undergo imprisonment  for life.   He  was  

further convicted under Section 342 I.P.C. and sentenced to  

undergo  rigorous  imprisonment for six months.  However, he

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was  acquitted  of  the  charge  under  Section  7  read  with  

Section 13 of the Prevention of Corruption Act.  Ghanshyam  

Sharma and Ram Narain were acquitted of the charge under  

Section 302 read with Section 34 I.P.C. but were convicted  

under Section 323 read with Section 34 I.P.C. as also under  

Section  342  I.P.C  and  sentenced  to  undergo  rigorous  

imprisonment for six months.  All the sentences were ordered  

to run concurrently.

The accused filed two appeals (one by the appellant  

and  the  other  by  Ghanshyam  Sharma  and  Ram  Narain)  to  

challenge their conviction by the trial court.  State of  

U.P.  also  filed  an  appeal  against  the  acquittal  of  the  

appellant  under  Section  7  read  with  Section  13  of  the  

Prevention of Corruption Act and that of Ghanshyam Sharma  

and Ram Narain of the charge under Section 302 read with  

Section 34 I.P.C.

The High Court dismissed the appeal filed on behalf  

of the State but allowed the one filed by Ghanshyam and Ram  

Narain and set aside their conviction under Section 302 read  

with Section 34 I.P.C. and Section 342 I.P.C.  So far as the  

appellant is concerned, the High Court allowed his appeal  

in-part and altered his conviction from Section 302 I.P.C.  

to Section 304 Part II I.P.C. and sentenced him to undergo  

rigorous imprisonment for two years.  The High Court also  

directed him to pay a fine of Rs.25,000/- and in default, to  

undergo further imprisonment for six months.   

Learned counsel for the parties took us through the  

entire evidence and made their submissions.  Shri Jaspal  

Singh, learned senior counsel appearing for the complainant  

and Shri Ratnakar Dash, learned senior counsel appearing for  

the  State  of  U.P.  argued  that  charge  under  Section  302  

I.P.C. was established against the appellant beyond any pale

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of  doubt  and  the  High  Court  committed  serious  error  by  

converting his conviction from one under Section 302 I.P.C.  

to Section 304 Part II I.P.C.  Shri Jaspal Singh emphasized  

that the appellant’s case falls under clause III of Section  

300 inasmuch as he had inflicted as many as 18 injuries on  

the person of the deceased and the same were sufficient to  

cause  death  in  the  ordinary  course  of  nature.  Learned  

counsel submitted that after arresting the deceased Virendra  

Singh in a false case registered under Section 307 I.P.C.,  

the appellant mercilessly assaulted him while in custody and  

inflicted injuries on different parts of his body which were  

sufficient to cause death in the ordinary course of nature.  

Shri Jaspal Singh made a pointed reference to paragraph 6 of  

the statement of Dr. C.N. Shukla (PW-8) and argued that in  

view  of  unequivocal  assertion  of  the  witness  that  the  

injuries  inflicted  on  the  person  of  the  deceased  were  

sufficient to cause death, the High Court was not justified  

in  altering  the  appellant’s  conviction  from  Section  302  

I.P.C. to Section 304 Part II I.P.C.  Both, Shri Jaspal  

Singh and Shri Ratnakar Dash argued that even if this Court  

comes  to the  conclusion that  the High  Court has  rightly  

altered the conviction of the appellant, the sentence of 2  

years  of  imprisonment  awarded  to  him  is  wholly  

disproportionate  to  the  seriousness  of  the  crime  and,  

therefore, the same should be suitably enhanced.

Shri  S.C.  Birla,  learned  senior  counsel  appearing  

for the appellant pointed out that none of the 18 injuries  

found on the person of the deceased was on the vital part  

and  submitted that  the appellant  only wanted  to teach  a  

lesson to the deceased because he had assaulted a man in  

uniform  and  the  High  Court  did  not  commit  any  error  by  

convicting  him  under  Section 304  Part II I.P.C.  He then

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argued that sentence awarded by the High Court may not be  

enhanced because the appellant has already reached the age  

of  64  years  and  he  suffered  burn  injuries  while  he  was  

posted in Varanasi District.  In support of this argument,  

learned  senior  counsel  placed  before  the  Court  affidavit  

dated  3.8.2009  of  the  appellant  which  is  accompanied  by  

certificate dated 30.7.2009 issued by Medical Officer, CMO  

Office, Allahabad.

We  have  considered  the  respective  submissions  and  

carefully  scrutinized  the  entire  record.   There  is  no  

dispute  that the  deceased was  taken into  custody on  the  

accusation of committing an offence under Section 307 I.P.C.  

and he died while in police custody.  Both, the trial Court  

and High Court have concurrently held that the appellant had  

inflicted injuries on the person of the deceased.  While the  

trial Court, on a detailed analysis of the evidence came to  

the conclusion that charge under Section 302 I.P.C. is made  

out  against  the  appellant,  on  a  re-appreciation  of  the  

evidence,  the  High  Court  opined  that  the  appellant’s  

conviction under Section 302 I.P.C. is not sustainable and  

that he was guilty of offence under Section 304 Part II  

I.P.C.   

In the context of the argument of learned counsel  

for the complainant and the State that the statement of Dr.  

C.N.  Shukla  (PW-8)  who  along  with  Dr.  Singhal  conducted  

post-mortem on the  body of the deceased is sufficient for  

convicting the appellant under Section 302 I.P.C. and the  

High Court gravely erred in altering his conviction from  

Section 302 to Section 304 Part II I.P.C., it is apposite to  

mention that in his examination-in-chief itself PW-8 made  

apparently  conflicting  statements.   In  paragraph  3  Dr.  

Shukla stated, “in our opinion,  the  death  of the deceased

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may  have  been caused due to ante-mortem injuries, bleeding  

and shock.”  In paragraph 6, Dr. Shukla opined that the  

injuries on the body of the deceased could be caused by  

lathi  and  that  ante-mortem  injuries  were  ordinarily  

sufficient to cause death.   In view of this, it is not safe  

to  rely  on  the  testimony  of  PW-8  for  recording  a  firm  

conclusion  that  injuries  inflicted  by  the  appellant  were  

sufficient to cause death in the ordinary course of nature  

and the High Court cannot be said to have erred in altering  

the appellant’s conviction from Section 302 to Section 304  

Part II I.P.C.   

However,  we  are  convinced  that  the  High  Court  

committed  serious  error  in  awarding  sentence  of  2  years  

imprisonment only to the appellant.  Though, it may appear  

repetitive, we consider it necessary to mention that the  

appellant had taken undue advantage of his position as a  

police officer and mercilessly assaulted the deceased while  

he was in police custody.  As many as 18 injuries were  

inflicted on the person of the deceased.  There was internal  

bleeding in at least 5 injuries.  The appellant whose duty  

was to protect life and property of the public had, instead,  

caused death of a young person, aged 20 years.  Therefore,  

notwithstanding, the fact that the incident had taken place  

22 years ago and the appellant is now 64 years of age, we  

are of the view that the sentence awarded to the appellant  

deserves  to  be  suitably  enhanced.   The  affidavit  and  

certificate produced by the learned senior counsel for the  

appellant cannot be relied upon for approving the sentence  

awarded by the High Court because the same appears to have  

been procured by the appellant at the last moment to earn  

sympathy  of  the  Court.  Taking  into  consideration  the  

totality of circumstances, we feel that ends of justice will

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be met by enhancing the sentence awarded to the appellant  

from 2 years to 5 years.   

Accordingly, Criminal Appeal Nos.976-977 of 2002 and  

Criminal Appeal Nos.980-981 of 2002 are partly allowed and  

the sentence of imprisonment awarded to the appellant by the  

High Court is enhanced from 2 years to 5 years imprisonment.  

Criminal Appeal No.978 of 2002 is dismissed.  Bail bonds of  

the  appellant,  J.B.  Katariya  are  cancelled  and  he  is  

directed to be taken in custody forthwith to serve out the  

remaining period of sentence.

......................J.              [B.N. AGRAWAL]

......................J.              [G.S. SINGHVI]

New Delhi, August 11, 2009.