Singh Vs. J. B. Kataria and Ors  INSC 1427 (11 August 2009)
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.
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 ....2/- - 2 - 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.
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.
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.
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 ....3/- - 3 - 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.
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.
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 ....4/- - 4 -
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.
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.
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 ....5/- - 5 - 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.
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 ....6/- - 6 - be met by enhancing the
sentence awarded to the appellant from 2 years to 5 years.
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.
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]
August 11, 2009.