IMPORTANT POINT
Application of S. 304 Part I, IPC.

JUDGMENT

T.S. Thakur, J.-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 (PW5). 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 appe