- (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 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 Section 304 Part II of the IPC and a sentence of 8 years R.I. along with a fine of Rs. 2,00,000/-
(2.) 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 Section 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 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.
(3.) 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 Section 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, 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.;