REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 801 OF 2012
(Arising out S.L.P. (Crl.) No.10394 of 2010)
Abdul Nawaz …Appellant
Versus
State of West Bengal …Respondent
J U D G M E N T
T.S. THAKUR, J.
1. Leave granted.
2. This 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.
3. Two 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, Chatham. 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 Bambooflat.
4. A 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.
5. At 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.
6. The 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, acquitted.
7. Aggrieved 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.
8. We 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.
9. The 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 on record.
10. In 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 water.
Number of 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.”
11. 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.
12. We 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 proved. The
discrepancies 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.
13. That 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.
14. It 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.
15. The 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.
16. The 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 the deceased. 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 extent succeed.
17. In 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.
……………………….……..……J.
(T.S. THAKUR)
………………………….…..……J.
(GYAN SUDHA MISRA)
New Delhi
May 10, 2012
