Dismissed

Mohammad Azad Alam Diljad Ansari v. the State of Maharashtra

Bombay HC16 Feb 2018APPA/80/2018

Case brief

AI extract

What is this about?

Single judge application for bail during pendency of appeal against conviction under Section 307 IPC. Court upheld conviction as attempt to murder involving serious injury while pushing victim from moving train, rejecting bail application due to crime's serious nature.

What did the court decide?

Application for suspension of sentence and bail rejected; hearing of appeal expedited.

Mohammad Azad Alam Diljad Ansari Vs the State of… — Murder and Culpable Homicide | Bombay HC (2018)

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(4)APPANo.802018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.80 OF 2018 IN

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CRIMINAL APPEAL NO.128 OF 2018

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Mohammad Azad Alam Diljad Ansari … Applicant V/s.

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The State of Maharashtra ... Respondent

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Mr.Umashankar R. Singh with Mr.C.M.Lokesh, Advocate for the Applicant.

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Mr.S.V.Gavand, APP for the Respondent/State.

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CORAM : A.M.BADAR J.

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DATED : 16^th FEBRUARY 2018.

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P.C. :

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1 This is an application for suspension of sentence imposed on the applicant and releasing him on bail during pendency of the appeal filed by him, which is already admitted for final hearing by this Court.

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2 The applicant/accused was convicted of the offence punishable under Section 307 of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years on that count.

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3 Heard the learned Advocate appearing for the applicant/accused at extenso . He took me through the entire evidence on record and contended that the case falls in Exception IV to Section 300 of the IPC as the act was without premeditation in a sudden fight and in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel manner. Therefore, if ultimately, the victim would have died, the applicant would not have been guilty of the offence punishable under Section 302 of the IPC. The learned Advocate further argued that no offence punishable under Section 307 as such is made out and to buttress this contention, he placed reliance on following Judgments :

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(i) _Hari Kishan and State of Haryana v. Sukhbir Singh & Ors._** reported in AIR 1988 Supreme Court 2127 .

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(ii) State of Maharashtra v. Sujay Mangesh Poyarekar, reported in 2009 ALL MR (Cri.) 2238 .

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(iii) Shriram s/o. Pandurang Neware v. State of Maharashtra, reported in 2009 ALL MR (Cri.) 3614 .

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4 The learned Advocate further argued that the evidence on record shows that another person gave slap on back side of the head of the applicant/accused and this fact borne from record is also indicating the fact that the act alleged against the present applicant/accused is not making out an offence punishable under

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Section 302 of the IPC. The learned Advocate for the applicant/accused argued that cross-examination of the complainant itself shows that he is a patient of blood pressure and at the time of entering into boogie his blood pressure has raised. In all probability, the victim of the crime in question fell down from the boogie because of giddiness suffered because of increase in blood pressure.

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5 The learned Advocate further argued that the Investigator has not prepared the spot panchanama and evidence of P.W.No.1 Nandkumar Joshi as well as P.W.No.9 Vivek Bhor shows that they both were at the entrance of the boogie. P.W.No.9 Vivek Bhor has stated that the applicant/accused was at the partition of the boogie. P.W.No.4 Ashwin Purohit was in the middle of the boogie and as such, the incident of alleged push by the applicant/accused to the victim is improbable, as the victim was at the partition of the boogie.

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6 The learned Advocate further argued that the prosecution has not collected monthly passes or the railway tickets of the victim as well as the alleged eye-witnesses and, therefore, their evidence is unreliable.

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7 It is further argued that the applicant/accused has undergone jail sentence of twenty months. The appeal is not likely to be heard in near future. The applicant/accused is tailor by

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occupation and his family is dependent on his earnings. The applicant/accused has no criminal antecedents. Counter case in respect of injuries on the applicant/accused was not investigated. The applicant/accused is ready and willing to abide by all conditions.

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8 The learned Advocate further argued that evidence of P.W.No.9 Vivek Bhor is suffering from omissions and contradictions and he has not stated to police that the applicant/accused gave two pushes on the chest of P.W.No.1 Nandkumar Joshi causing a fall as well as the leg blow.

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9 The learned Additional Public Prosecutor opposed the application by contending that as the omissions and contradictions were not got proved by putting necessary questions to the Investigating Officer and as such, such omissions cannot be taken into consideration.

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10 I have carefully considered the rival submissions and also perused the entire evidence as well as the impugned Judgment and Order of conviction and resultant sentence.

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11 Conviction is for the offence punishable under Section 307 of the IPC and it is well settled that it is sufficient to justify such conviction if there is present an intent coupled with an overt

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act in consequence of such intent. To make out this offence, causing bodily injury likely to cause death is absolutely not essential.

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12 Section 300 of the IPC defines murder. Clause fourthly of that Section provides that if the person committing the act knows that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or injury as aforesaid is guilty of causing murder of such person. Exception IV to Section 300 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

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13 Let us, test the case in hand on these parameters in order to ascertain whether prima facie the offence punishable under Section 307 of the IPC is made out against the applicant/accused. The incident in question took place after Kasara bound local left Dombivali. It happened in a boogie reserved for handicapped person. The applicant is undisputedly not a handicapped person. Evidence of P.W.No.9 Vivek Bhor shows that present applicant had boarded that train even prior to Dombivali and he was quarreling with the co-passengers. He was

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speaking arrogantly with them. The co-passengers were asking him to alight from the boogie as it was reserved for handicapped persons. The victim P.W.No.1 Nandkumar Joshi an aged person entered in that train at Dombivali. His evidence shows that the applicant/accused was quarreling with the co-passengers and, therefore, he tried to pacify the applicant. P.W.No.1 Nandkumar Joshi has stated that while he was attempting to pacify the quarrel, the applicant pushed him from the boogie of that train. Evidence of P.W.No.9 Vivek Bhor eye-witness shows that three pushes were given by the present applicant in order to throw the P.W.No.1 Nandkumar Joshi out of the running train. Alleged Omissions and Contradictions are not of any consequence unless and until they are put in cross-examination to the Investigating Officer and the Investigating Officer confirms such facts. Prima facie, it is seen that this exercise is not done. That apart, evidence of P.W.No.9 Vivek Bhor to the effect that the applicant/accused has given three pushes to the injured is not at all coming on record by way of omission.

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14 Evidence of Motorman i.e. P.W.No.7 Ramgopal VVerma shows that at the time of the incident in question the local train was running at a speed of 100 k.m. per hour. The case prima facie, therefore, falls within clause fourthly of Section 300 of the IPC, which is referred by me in the foregoing paragraphs and the same is falling in Exception IV to that Section. The quarrel by the applicant/accused with the co-passengers was going on since

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long even prior to the victim entering into boogie of the train. The extensive damage caused to P.W.No.1 Nandkumar Joshi is reflected from the evidence of P.W.No.10 Dr.Majetia. The act of pushing the victim out of the train running at the speed of 100 k.m. per hour reflects intention of the applicant as required by Section 307 of the IPC.

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15 In this view of the matter, it cannot be said that no offence punishable under Section 307 of the IPC is made out. The prime consideration for releasing the applicant/accused on bail is nature and seriousness of crime. In the case in hand, a senior citizen was thrown out of the running local train by the present applicant, who is an able bodied young and strong person when compared to the victim of the crime in question. The victim was no doubt a patient of blood pressure, but he has categorically denied the suggestion that as his blood pressure shoot up because of the incident and he fell down because of giddiness. The admission given by the victim in the crime in question to the effect that he is a patient of blood pressure cannot be construed to mean that the blood pressure of the victim shoot up at the time of the incident and he fell down out of giddiness. That apart, the act of throwing the victim from the running train is witnessed by two copassengers, who are P.W.No.4 Ashwin Purohit and P.W.No.9 Vivek Bhor. In criminal cases, proof of mathematical precision is not required and, therefore, non-production of railway tickets or

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monthly passes of the victim of the crime in question as well as these eye-witnesses is of no assistance to the defence.

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16 The incident in question is a serious incident which had endangered the life of the victim. Had he not got the medical treatment immediately, he would have certainly died. Fortunately for him, no other train was running on the opposite track. Such incidents are rampant in Mumbai. Local trains are referred to as the life lines of tinsel town – Mumbai. Majority of population of Mumbai use local trains to reach different corners of the city. Such type of offences in local trains are increasing day-by-day and are wreaking havoc in Mumbai. Almost daily local commuters are losing their lives or limbs at the hands of such offenders. Commuters in rush hours in local train always feels unsecured due to such instances which are occurring frequently. Releasing the applicant/accused on bail for such serious offence which is proved before the trial Court will certainly give a wrong signal to the Society.

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17 The application is, therefore, rejected. However, hearing of the appeal is expedited.

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(A.M.BADAR J.)

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Mohammad Azad Alam Diljad Ansari v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Mohammad Azad Alam Diljad Ansari v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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