The Telegraph
Since 1st March, 1999
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Question of right legal lane

Where does the Bapi Sen case go from here' Legal opinion appeared divided the day the sergeant lost his last battle.

As the case stood on Monday, the police have booked the five constables who assaulted Bapi on the last night of 2002 under Section 302 (‘culpable homicide’) of the Indian Penal Code.

“We have started a murder case and investigators are gathering evidence for that. But before filing the chargesheet, we will once again review the evidence and decide on the Sections to be applied,’’ said deputy commissioner of police (central) Zulfiquar Hasan.

With Bapi’s death, legal exerts argue that Section 304, culpable homicide amounting to murder, would strengthen the case against the accused. As former Calcutta High Court Justice Bhagabati Prasad Banerjee put it: “In case of Section 302, the police will have to prove four separate elements — intention, preparation, act and commission — and the missing girl who the sergeant tried to save will be an important witness for the prosecution. The other witnesses’ account will not be enough to enforce Section 302. It will be easier for the investigating authorities to prove Section 304.”

Gitanath Ganguly, vice-chairman of the West Bengal Legal Aid Society, expressed apprehension over whether the police had gathered enough evidence to “convince the courts”.

The Bowbazar police, however, claim they have enough proof to pin murder charges on the five constables. “Bapi’s four friends gave separate statements that they saw the constables deliberately hitting Bapi with an intention to kill him,’’ said a senior officer of Bowbazar police station. Taxi driver Boltu and helper Mewalal, too, had recorded similar statements.

Bikash Bhattacharya, advocate-general of Tripura, meanwhile, opined that “if the police were sure they had enough evidence to prove the crime”, they should stick to Section 302 of the Indian Penal Code.

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