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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  

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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.  2

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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  

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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  

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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.   

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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  

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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  

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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:

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“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  

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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.  

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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  

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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  12

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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  

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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  14

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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  

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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)

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………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi May 10, 2012

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