REPORTABLE

                  IN THE SUPREME COURT OF  INDIA             CRIMINAL APPELLATE JURISDICTION   

    CRIMINAL APPEAL NOS. 1440-1441   OF 2008

R.P. TYAGI ..  APPELLANT(S)

vs.

STATE (GOVT. OF NCT OF DELHI)..  RESPONDENT(S)

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

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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,

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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 3  rd   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.