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2010 Supreme(Cal) 1095
HIGH COURT OF CALCUTTA
S. K. MUKHERJEE, DIPANKAR DATTA, JJ.
Appanna - Appellant
Versus
State - Respondent
C.R.A. No. 1 of 2010 C.R.A. No. 2 of 2010 C.R.A. No. 3 of 2010 C.R.A. No. 5 of 2010
Decided on : Aug 30, 2010
N.N. Adhikari, A.K. Ray, Krishna Rao, Tulsi Lall, Joymalya Bagchi, Deep Chain Kabir, Mohd. Tabraz, Santosh Kumar Mandal
Headnote:
The Court upheld the conviction of Nawaz for murder and dismissed his appeal. The Court set aside the conviction of A-1, A-2, and A-3 for causing hurt and declined to order fresh charges under Section 186, IPC.
Fact of the Case:
Nawaz and others were charged with murder, causing hurt, and theft of diesel. The prosecution alleged that Nawaz and others attacked the victim, a policeman, with a dao and pushed him into the sea, causing his death. The defense contended that Nawaz was falsely implicated, that the prosecution witnesses were unreliable, and that the investigation was biased.
Finding of the Court:
The Court found that the prosecution had proved beyond reasonable doubt that Nawaz had assaulted the victim with a dao and pushed him into the sea, resulting in his death. The Court rejected the defense's arguments that Nawaz was falsely implicated and that the prosecution witnesses were unreliable. The Court also found that the investigation was conducted in a biased manner and set aside the conviction of A-1, A-2, and A-3 for causing hurt.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that Nawaz had committed murder. 2. Whether the defense had established that Nawaz was falsely implicated. 3. Whether the prosecution witnesses were reliable. 4. Whether the investigation was conducted in a biased manner.
Ratio Decidendi: 1. The Court held that the prosecution had proved beyond reasonable doubt that Nawaz had assaulted the victim with a dao and pushed him into the sea, resulting in his death. The Court relied on the testimony of eyewitnesses who identified Nawaz as the assailant and on the medical evidence which showed that the victim had died from drowning. 2. The Court rejected the defense's argument that Nawaz was falsely implicated. The Court found that there was no evidence of enmity between Nawaz and the victim and that the prosecution witnesses had no motive to falsely implicate Nawaz. 3. The Court found that the prosecution witnesses were reliable. The Court noted that the eyewitnesses had consistently identified Nawaz as the assailant and that their testimony was corroborated by other evidence, such as the medical evidence and the radio log. 4. The Court found that the investigation was conducted in a biased manner. The Court noted that the Investigating Officer was not competent to investigate a murder case and that he had conducted the investigation in a manner that was prejudicial to the accused.
Final Decision: The Court upheld the conviction of Nawaz for murder and dismissed his appeal. The Court set aside the conviction of A-1, A-2, and A-3 for causing hurt and declined to order fresh charges under Section 186, IPC.
Dipankar Datta, J.
1. ALL these appeals are directed against the judgment and order dated December 31, 2009 and January 1, 2010 respectively passed by the Sessions Judge, Andaman and Nicobar Islands at Port Blair, while deciding Sessions Case No. 48 0f 2008, arising out of Chatham Police Station Case No. 66 0f 2008 dated March 20, 2008, and hence shall stand disposed of by this common judgment and order. Shri Appanna (hereafter A-1), Shri Ganeshwar Lall alias Ganesh Lall (hereafter A-2) and Shanta Ram (hereafter A-3) have been convicted under Sections 332/34 of the Indian Penal Code (hereafter IPC) and each have been sentenceee) years and to pay a fine of Rs.15,000/- (Rupees fifteen thousand only) each, in default to suffer further simple imprisonment for 1 (one) year each. Abdul Nawaz (hereafter Nawaz), has been convicted under Section 302 for murdering G. Shaji (hereafter the victim), a policeman (head constable) in uniform, and, accordingly, sentenced to suffer imprisonment for life and to pay a fine of Rs.50,000/- (Rupees fifty thousand only), in default to suffer further rigorous imprisonment for 2 (two) years.
2. CHATHAM Police Station Case No. 66 0f 2008 dated March 20, 2008 was registered on the basis of an oral complaint of Ratan Kumar Singh (PW-1), the scribe whereof was G. Madhav Rao (PW-53). The First Information Report (hereafter the FIR), marked as Exhibit 1 in course of trial, reveals that PW-1 and Gregory John Topno (PW-3), who are both police constables, were on patrol duty on March 19, 2008. They had left CHATHAM Police Station at about 22.00 hours with VHF set and torch light on a motor cycle. They conducted patrolling of Haddo, Delanipur, Buniyadabad and defence area and when they reached old CHATHAM jetty at about 23.50 hours, they felt the odour of diesel. They suspected that something was wrong nearby and accordingly, stopped the motor cycle. Search of the surroundings, by walk, led to a dinghy being found standing beside M.V. Pillokunji, a vehicle ferry boat (hereafter the said vessel), stationed at the jetty. Meanwhile, a PCR van (Power-3) also reached there and they asked it to stop. Head Constable Sunil Kumar (PW-2) and Constable K. Vijay Rao (PW-5) alighted therefrom. PWs 1 and 3 told PWs 2 and 5 that diesel was being taken out from the said vessel. They also felt the odour of diesel. The driver of the PCR van, Apoorva Das (PW-6) also reached the spot and then PWs 1, 2, 3, 5 and 6 landed on the said vessel. Two dinghies were found to be tied with the said vessel. One was loaded with 20 drums and one man was present on the said dinghy. In the other dinghy, there were 14 drums which were being filled with diesel through plastic pipe line from the said vessel by starting its pump engine. In this dinghy, 3-4 persons were present. As the police party reached near these dinghies, those four persons jumped on the other dinghy, which was stationed by its side. The rope of the dinghy was cut with a dao and after starting the engine, it fled away. While PW-1 was informing the matter to Alfa 71 Police Station, CHATHAM and Mike 1 Police Control Room through VHF, A-1, A-3 and A-2 (Engineer, Master and Laskar of the said vessel respectively) attempted to snatch the VHF set from him. At this stage, PW-3 and staff of the PCR van came to the spot and caught them. After sometime, at about 00.30 hours, the victim and constable Amit Talukdar (PW-4) reached the place of incident from Police Station, CHATHAM. PW-1 narrated the entire incident to them. The victim then informed the matter to the Station House Officer, CHATHAM Police Station through mobile phone and requested him to reach the spot immediately. After that the victim and PW1 boarded the dinghy and A- 1, A-2 and A-3 were left under the vigil of PWs 2, 3, 4 and 6. PW-2 went to the control room by PCR van for giving information. At that juncture, a mobile phone lying on the dinghy started ringing which was recovered by the victim. It was a mobile phone o
