Abdul Nawaz Vs. State
of West Bengal
[Criminal Appeal No.
801 of 2012 arising out S.L.P. (CRL.) No.10394 of 2010]
J U D G M E N T
T.S. THAKUR, J.
appeal by special leave arises out of a judgment and order dated 30th August,
2010 passed by the High Court of Calcutta whereby Criminal Appeal No.5 of 2010
filed by the appellant assailing his conviction under Section 302 of the IPC
and sentence of life imprisonment with a fine of Rs.50,000/- and a default
sentence of rigorous imprisonment for two years has been dismissed.
policemen deployed on patrol duty examined at the trial as PWs 1 & 3
reached Chatham Jetty at about 23.50 hrs. on the 19th of March, 2008. While at
the Jetty they started smelling diesel odour and suspecting that something
fishy was going on, parked their motor cycle to take a walk in the surrounding
area. Soon they noticed that two dinghies were tied to M.V. Pillokunji, a
vehicle ferry boat stationed at the jetty. In one of these dinghies there were
20 drums besides a man present on the dinghy while in the other there were
three to four men and 14 drums, which were being filled with diesel using a
plastic pipeline drawn from the vessel mentioned above.
The suspects jumped
in to one of the two dinghies and escaped, when they saw the approaching policemen
that included Head Constable Sunil Kumar (PW-2) and Constable K.Vijay Rao
(PW-5). The police party, it appears, tried to contact police station Chatham
and the Control Room. While they were doing so the Engineer, Master and the Laskar
of the said vessel attempted to snatch the VHF set from them. The police party,
therefore, caught hold of these persons as they appeared to be in league with
the miscreants, who had escaped. Soon thereafter arrived Constable Amit
Talukdar (PW-4) and the deceased Head Constable Shri Shaji from Police Station,
After hearing the
version from the patrolling constables and the PCR van personnel who too had arrived
on the spot the deceased informed the SHO, Chatham police station and requested
him to reach the spot. In the meantime, the deceased and PW-1 boarded the dinghy
that had been left behind by the miscreants leaving the three crew members of the
vessel under the vigil of the remaining members of the police party. PW-1 who
accompanied the deceased on to the dinghy firmly tied the rope of the dinghy
but while both of them were still in the dinghy, the other dinghy that had
earlier fled away returned to the spot with four persons on board.
The prosecution case
is that the appellant and one Abdul Gaffar were among those who entered the
dinghy and got into a scuffle with the deceased to secure the release of the dinghy.
In the course of the scuffle the appellant is alleged to have picked up a dao
(sharp edged weapon lying in the dinghy) and inflicted an injury on the head of
the deceased. The appellant is then alleged to have pushed the deceased into the
sea. The rope of the dinghy was cut by the miscreants to escape in the dinghy towards
search for the deceased was launched by the SHO after he arrived on the spot
which proved futile. His dead body was eventually recovered from the sea by the
Coast Guard Divers on 20th March, 2008 at about 6.15 hours. The inquest was
followed by the post-mortem examination of the dead body conducted by Dr.
Subrata Saha. Statements of witnesses were recorded in the course of
investigation and the dao recovered culminating in the filing of a charge-sheet
against as many as seventeen persons for offences punishable under Sections
302/392/411/201/120B/341/109 IPC. The case was, in due course, committed for
trial to the court of Sessions Judge, Andaman & Nicobar Islands at Port
Blair before whom the accused pleaded not guilty and claimed a trial.
the trial, the prosecution examined as many as 66 witnesses apart from placing
reliance upon an equal number of documents marked at the trial apart from
material exhibits. The accused did not examine any witnesses but produced a few
documents in support of their defence.
Trial Court eventually convicted the appellant for an offence of murder
punishable under Section 302, IPC and sentenced him to undergo imprisonment for
life. A-1 to A-3 were also similarly convicted but only for offences punishable
under Sections 332/34 of the IPC. The remaining accused persons charged with commission
of offences punishable under Sections 392/409/411 of the IPC were, however,
by the conviction and sentence awarded to them, A-1 to A-3 and the appellant herein
preferred appeals before the High Court of Calcutta, Circuit Bench at Port Blair.
By the impugned judgment under appeal before us, the High Court has while
allowing three of the appeals filed by the other convicts, dismissed that filed
by the appellant herein thereby upholding his conviction and the sentence of life
imprisonment awarded to him.
have heard Mr. Jaspal Singh, learned senior counsel for the appellant and Mr.
Ashok Bhan, learned senior counsel appearing for the respondent-State who have
taken us through the judgments under appeal and the relevant portions of the evidence
adduced at the trial. It was contended by Mr. Jaspal Singh that the prosecution
case rests primarily on the depositions of PWs 1 & 2 as the remaining police
witnesses were admittedly at some distance from the place of occurrence. Out of
these witnesses PW-1, according to Mr. Jaspal Singh, was not worthy of credit and
could not, therefore, be relied upon.
A draft FIR was, according
to the learned counsel, prepared by PW65-the investigating officer which PW1 is
said to have signed without even reading the same. This implied that the version
given in the FIR was not that of the witness, but of the person who had drafted
the same. It was further contended that although the FIR was recorded at 1:30
a.m., the body of the deceased was recovered only at about 5:40 a.m. In the
intervening period it was not known whether the deceased was alive or dead.
The FIR purportedly
registered at about 1:30 a.m. all the same alleged the commission of an offence
under Section 302 IPC. This, according to Mr. Singh, indicated that the FIR was
actually registered much after the recovery of the body. Mr. Jaspal Singh,
further, contended that PW-2 was not an eye-witness and had not corroborated the
version given by PW-1. He had instead improved his own version given in the statement
under Section 161 Cr.P.C. He further contended that the name of the appellant had
been introduced subsequently as the contemporaneous documents showed that the
name of the assailant was not known.
Trial Court has viewed the occurrence in two distinct sequences. The first
sequence comprises the police party’s arrival on the spot and discovering the
process of removal of diesel from the bigger vessel into the dinghies carrying
drums with the help of a pipe and a pump and the escape of the four persons
from the place after the police went near the spot.
The second sequence
comprises three crew members of the vessel being detained by the police party,
the arrival of the deceased head Constable Shaji from police station-Chatham,
the deceased entering the second dinghy left behind by the miscreants, the
return of the four persons including the appellant to the place of occurrence, a
scuffle ensuing in which the deceased was hit on the head and pushed into the sea.
The Trial Court considered
the evidence on record carefully in the context of the above two sequences and
came to the conclusion that the return of the appellant to recover the second
dinghy, a scuffle taking place between the appellant and the deceased Head
Constable-Shaji on board the second dinghy, and the deceased being hit with a
dao by the appellant and being pushed into the sea was proved by the evidence
appeal, the High Court re-appraised the evidence adduced by the prosecution and
affirmed the findings recorded by the Trial Court as regards the presence and
return of Nawaz to recover the second dinghy left behind by the miscreants, the
assault on the deceased with a dao and his being pushed into the sea. The High
Court found that the depositions of PWs1 and 2 to the extent they proved the above
facts was cogent and consistent hence acceptable.
The High Court
observed: “From the above versions of the prosecution witnesses, it seems to be
clear that the victim had been assaulted by a dao and then pushed into the sea
water and it was thereafter that PW-2, for sending message, left for the PCR
van. It is in the evidence of PWs 1 and 2 that they noticed Nawaz to be the
assailant of the victim. While PW-1 was categorical that Nawaz pushed the victim
into the sea water, PW-2 did not specifically say who pushed the victim into the
sea water but having regard to the sequence of events sighted by him which support
the version of PW-1, it would not be unreasonable to conclude based on the
version of PW-1 that it was Nawaz who had also pushed the victim into the sea
similarities appear from a reading of the respective versions of PWs 1 and 2,
viz. that PW-2 and other staff who were on the vehicle approaching the jetty
were stopped by PW-1; that there were 20 drums on one dinghy and 14 drums on
the other; that through green coloured pipe, diesel was being supplied to the drums
from the said vessel; that the victim picked up the mobile phone lying in the
detained dinghy; that PW-1 had come over to the said vessel for tying the
dinghy; that both recognized Nawaz as the person who picked up the dao from the
dinghy and hit the victim.
These are some
evidence tendered by PWs 1 and 2 which are absolutely mutually consistent. That
apart, the other witnesses present at the spot (though had not recognized Nawaz
or been informed about the identity of the assailant), had heard that the
victim was assaulted with a dao.
Relying upon the decision of this Court in Bharwada Bhoginbhai Hirjibhai v.
State of Gujarat, (1983) 3 SCC 217, the High Court held that minor
discrepancies in the depositions of witnesses which did not go to the root of
the matter cannot result in the entire prosecution case being thrown out.
do not see any palpable error in the approach adopted by the High Court in appreciating
the evidence adduced by the prosecution. The deposition of PWs 1 & 2
regarding the presence of the appellant at the place of occurrence, his getting
into a scuffle with the deceased in an attempt to recover the dinghy and the
assault on the deceased, who was then pushed into the sea is, in our opinion, satisfactorily
indicated by Mr. Jaspal Singh in the recording of the FIR, or the offence under
which it was registered are not of much significance and do not, in our view,
affect the substratum of the prosecution case. We accordingly affirm the
findings of the two Courts below to the extent that the appellant was indeed
one of the four persons who returned to the place of occurrence to recover the
second dinghy that had been left behind by them and finding the deceased-Head Constable
Shaji inside the dinghy assaulted him in the course of a scuffle and eventually
took away the dinghy with the help of his companions, after the deceased was assaulted
and pushed into the sea.
brings us to the second limb of Mr. Jaspal Singh’s contention in support of the
appeal. It was contended by him that the evidence on record established that
the appellant had not come armed to the place of occurrence. The dao allegedly
used by him for assaulting the deceased was even according to the prosecution lying
within the dinghy. That the appellant had not repeated the act and the
intensity of the dao blow was not severe enough inasmuch as it had not caused
any fracture on the skull of the deceased.
was further argued that there was no evidence medical or otherwise to prove
that the injury inflicted by the appellant was in the ordinary course of nature
sufficient to cause death. As a matter of fact, the injury had not itself
caused the death, as according to the trial Court, the victim had died of
drowning. It was urged that while according to PW-1 the deceased was pushed
into the sea that version had not been supported by PW2.
To top it all the
prosecution case itself suggested that there was a sudden fight between the
deceased and the appellant and his companions and it was in the course of the
said fight that an injury was sustained causing the death of the deceased
thereby bringing the case under exception 4 to Section 300 of the IPC. Relying
upon the decisions of this Court in Chinnathaman v. State [2007 (14) SCC 690], Muthu
v. State [2009 (17) SCC 433], Arumugam v. State [2008 (15) SCC 590] and Ajit Singh
v. State of Punjab [2011 (9) SCC 462] and judgment of this Court in Elavarasan v.
State [2011 (7) SCC 110] it was contended that the conviction of the appellant
under Section 302 of the IPC was erroneous in the facts and circumstances of
the case and that the evidence at best made out a case punishable under Section
304 Part II of the IPC, and in the worst case scenario, one punishable under
Section 304 Part I.
contention urged by Mr. Jaspal Singh is not wholly without merit to be lightly
brushed aside. The prosecution case clearly is that the appellant and his
companions had returned to the place of occurrence only to recover the second
dinghy which they had left behind while they had escaped from the spot in the
other dinghy. It is not the case of the prosecution that there was any
pre-mediation to commit the murder of the deceased. It is also common ground
that the appellant was not armed with any weapon.
The weapon allegedly
used by him to assault the deceased was even according to the prosecution case lying
in the said dinghy. The nature of the injury inflicted upon the victim has not been
proved to be sufficient in the ordinary course of nature to cause death. The
blow given by the appellant to the deceased had not caused any fracture on the skull.
The two courts below have, all the same, accepted the prosecution story that
after the deceased was given a dao blow, the appellant pushed him into the sea.
That finding has been affirmed by us in the earlier part of this judgment.
The question, however,
is whether this act of pushing the deceased into the sea after he was given a
blow on the head, no matter the blow was not proved to be severe enough to
cause death by itself, would be suggestive of an intention to kill. According to
Mr. Jaspal Singh the answer is in the negative. That is so because, the main purpose
of the appellant returning to the place of occurrence was not to kill any one, but
only to have the dinghy back. The obstruction caused in the accomplishment of
that object could be removed by pushing the deceased who was resisting the
attempt made by the appellant into the sea. The fact that the deceased was
pushed into the sea, should not, therefore, be seen as indication of an intention
to kill the deceased.
appellant was interested only in having the dinghy back. That could be done
only by removing the obstruction caused by the deceased who was resisting the
attempt. Pushing the deceased into the sea could be one way of removing the
obstruction not necessarily by killing the deceased. Having said that we cannot
ignore the fact that the deceased had sustained a head injury and was bleeding.
Pushing a person into the sea, with a bleeding head injury may not have been
with the intention to kill, but it would certainly show the “intention of causing
a bodily injury as was likely to cause death”, within the meaning of Sections
300 & secondly 304 Part I of the IPC.
The appellant having
assaulted the deceased with a dao and having thereby disabled him sufficiently
ought to have known that pushing him into the sea was likely to cause his
death. Pushing the deceased into the sea was in the circumstances itself tantamount
to inflicting an injury which was likely to cause the death of the deceased. The
High Court has gone into the question whether the deceased knew or did not know
swimming. But that issue may have assumed importance if the deceased was not disabled
by the assault on a vital part of his body. In the case at hand he was assaulted
with a sharp edged weapon on the head and was bleeding. His ability to swim,
assuming he knew how to swim, was not, therefore, of any use to him. The injury
on the head and the push into the sea have, therefore, to be construed as one
single act which the appellant ought to have known was likely to cause death of
Even so exception 4
to Section 300 of the IPC would come to the rescue of appellant inasmuch as the
act of the appellant even when tantamount to commission of culpable homicide will
not amount to murder as the same was committed without any pre-meditation and in
a sudden fight, in the heat of passion, in the course of a sudden quarrel
without the offender taking undue advantage or acting in a cruel or unusual manner.
The prosecution evidence sufficiently suggests that a scuffle had indeed taken
place on the dinghy where the appellant and his companions were trying to recover
the dinghy while the deceased was preventing them from doing so.
In the course of this
sudden fight and in the heat of passion the appellant assaulted the deceased and
pushed him into the sea eventually resulting in his death. The act of the appellant
is more appropriately punishable under Section 304 (I) of the IPC instead of
Section 302 of the Code invoked by the Courts below. The appeal must to that
the result, we allow this appeal in part and to the extent that while setting
aside the conviction of the appellant for the offence of murder under Section
302 of the IPC, we convict him for culpable homicide not amounting to murder
punishable under Section 304 (I) of the IPC and sentence him to undergo
imprisonment for a period of eight years. Sentence of fine and imprisonment in default
of payment of fine is, however, affirmed.
(GYAN SUDHA MISRA)