Abdul Nawaz vs State Of West Bengal

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.

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.

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.

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.

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.