Holding

The conviction under IPC s.304 Part II is affirmed, with the sentence reduced to five years' rigorous imprisonment and the fine increased to Rs.5 lakh.

Summary

In 1987 a police constable was stabbed by Mahender and Ram Kumar. The SHO, R.P. Tyagi, detained the accused's family members and beat them, leading to Mahender's death. Tyagi was initially convicted of murder under IPC s.302 and sentenced to death, but the Delhi High Court modified the conviction to culpable homicide not amounting to murder (s.304 Part II) with eight years' rigorous imprisonment and a fine of Rs.2 lakh. The Supreme Court examined whether the evidence supported a murder charge, the applicability of s.120B (common intention), and the impact of the long delay on witness testimony. It held that the High Court's reasoning was sound, upheld the conviction under s.304 Part II, reduced the imprisonment to five years, and increased the fine to Rs.5 lakh, noting the appellant's age, indigent circumstances, and the erosion of prosecution evidence due to delay.

Issues considered

The appropriate charge: IPC s.302 (murder) versus s.304 Part II (culpable homicide not amounting to murder).
The applicability of IPC s.120B (common intention) given acquittal of co‑accused.
Whether the evidence, weakened by the delay, was sufficient to sustain a murder conviction.
The appropriate quantum of sentence and fine in view of the appellant's age, health, and circumstances.

Legislation cited

Indian Penal Code, 1860s. 120B, s. 299, s. 302, s. 304 Part II, s. 307, s. 376

Subjects

custodial deathpolice misconductdelay in trialhostile witnessesculpable homicidesection 304 IPCsection 302 IPCcommon intentionsentencingfine

Judgment

[2009] 15 (ADDL.) S.C.R. 1147

R.P. TYAGI A
--- .... v.
STATE (GOVT. OF NCT OF DELHI)
(Criminal Appeal Nos. 1440-1441 of 2008)

NOVEMBER 12, 2009
B
[HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

.. ..f:
Penal Code, 1860:

s. 304 (part II ) - Conviction under for custodial death -
A person accused of stabbing a police constable, beaten in c
police custody resulting in his death - Erring police officer
convicted uls 302 and sentenced to death - High Court
modifying the conviction to s.304 (part-I/) with sentence of 8
years RI and fine of Rs. 2 lacs - HELD: This case exemplifies
the repeated observations that delay in the disposal of a D
--\
¥ 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
almost all the prosecution witnesses including the relatives
of deceased declared hostile as they had not supported the E
prosecution - It is in this background that both the courts below
had· to stretch the evidence slightly in order to arrive to a
conclusion of guilt against the appellant - However, the
~ reasons recorded by trial court and High Court are germane
,,. and there is no reason to interfere with finding of the fact
F
recorded by courts below -. As regards quantum of sentence,
it has been pointed out that the matter was of the year 1987
- The appellant is presently in jail and has undergone about
3 years of sentence and has paid the fine of Rs. 2 lacs - He
has also been denied his retrial benefits on account of his
conviction and is 67 years of age, and is in extremely indigent G
circumstances - Conviction as recorded by High Court
_j(
confirmed, but sentence reduced from 8 years to 5 years, and
fine increased from Rs. 2 lacs to 5 lacs - Delay in trial - Effect
on evidence.
1147 H
1148 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A Virsa Singh vs. State of Punjab 1958 SCR 1495;
Harjinder Singh vs. Delhi Administration AIR 1968 SC 867; l<r.,-,

and Laxman Kalu Nikalje vs. The State of Maharashtra AIR
1968 SC 1390, cited. 1-
Case Law Reference :
B
1958 SCR 1495 cited Para 7
AIR 1968 SC 867
AIR 1968 SC 1390
cited
cited
Para 9
Para 9 ....
...
c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1440-1441 of 2008.

From the Judgment & Order dated 05.03.2008 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 38 of 2007
D and Death Reference No.1 of 2007.
'1·
- r
Ranjit Kumar, Anil K. Chopra, for the Appellants.

P.P. Malhotra, ASG, Anil Katiyar, Swa Qadri, P.K. Dey,
R. Bastian, S. Bakshi, for-the Respondent.
E
The following Order of the Court was delivered

ORDER l
-4-.

F
1. 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 Jieen
allowed to the extent that the conviction under Sectic-~. 302 of
the IPC recorded by the Additional Sessions Judor: has been
G modified to a conviction under Sec.304 Part II of the IPC and
a sentence of 8 years RI. along with a fine of Rs.2,00,000/-.

2. As per the facts of the case the in~ident happened on
16th August, 1987, (on the day of the Janmashtami festival)
H when Constable Rishipal (OW .1) who was posted in_ police
'!,
R.P. TYAGI v. STATE (GOVT. OF NCT OF DELHI) 1149

station Vivek Vihar, where the appellant was the SHO was A
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 B
enraged by the turn of events the police officers allegedly
picked up the family members and neighbours of Mahender and

.. 'II-
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 c
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
I
of the severe beating, Ram Kumar and Mahender sustained
D
I 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.
E
3. Inquest proceedings were thereafter conducted by the
SOM 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 tn that Ram
/'
" Kumar and Mahender had been beaten by enraged members F
of the public, after they had caused injuries to Rishpal (OW) 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 G
investigation an 'untraced' report was filed in the Court of the
Metropolitan Magistrate, 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
H
1150 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Court of Sessions and a modification in the conviction and
s~ntence by the High Court, which proceedings are now ,l..r'•
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
B 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

c
_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
D
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.

4. Leave was granted by this Court on 29th August, 2008
~
- \

E and while granting leave the following order was made:
"Leave granted.

Issue notice to the appellant as to why the conviction
of the appellant shall not be recorded under Section 302 .i.,·
F 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 I'

Police of the National Capital Territory of Delhi to file an
affidavit before this Court as to what action has been taken
G against the officer(s) concerned in the matter.

Bail application is rejected."
)'.

5. We are told by Mr. P.P. Malhotra, the learned A.S.G.
appearing for the respondent that the affidavit has indeed been
H
R.P. TYAGI v. STATE (GOVT. OF NCT OF DELHI) 1151

filed. Mr. Malhotra has also assisted us on the other question A
that has been raised by the admitting Bench.
6. 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
8
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 C
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 fact
that the conviction had been recorded under Sec.304 Part II of
the IPC and even assuming though not conceding that the D
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 E
show that several Fl Rs including an FIR under Sec.376 etc. of
the IPC. had been registered against them.

7. Mr. Malhotra has, however, supported the judgment of
the High Court and has further submitted that in the light of the F
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.

8. We have heard learned counsel for the parties at length
and gone through the record very carefully. This case G
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 H
1152 SUPREME COURT REPORTS [2009] 15 (ADDL) S.C.R.

A 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
conclusion of guilt against the appellant. We are of the opinion
B 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.

c
9. 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 HarjinderSingh 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:
D
"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
E inten!ion 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
F
deceased. The case case falls within the 3rd part of
Sec. 299 and will be punishable under the second part of
Sec.304."
'
1O. The question as to the quantum of sentence has been
G argued by Mr. Ranjit Kumar with some insistence. He has
pointed out that the matter was of the year 1987. The 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
H denied his retiral benefits on account of his conviction in the
R.P. TYAGI v. STATE (GOVT. OF NCT
,. OF DELHI) 1153

present matter and is now 67 years of age, and is in extremely A
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 B
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.

R.P. Appeals dismissed.
c