The High Court dismissed an appeal against conviction under Section 308 IPC for assault with a knife at a railway station. The Court held the prosecution proved guilt beyond reasonable doubt based on eyewitness testimony and recovery of the weapon, despite blank CCTV.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.848 OF 2018
Farid Shaikh @ Firoz Shaikh
s/o Mohd. Ahmed Shaikh @ Yusuf
Aged 25 yrs., Occ : Nil
R/o: Sangam Nagar Zopadpatti,
Near Kirana Shop, Antop Hill,
Wadala (E), Mumbai – 37
(At present – Byculla prison jail).... Appellant
versus
1. The State of Maharashtra
2. The Senior Inspector of Police Dadar Railway Police Station .... Respondent
Mr. Aniket A. Gawand i/b. R. P. Javanjal, Advocate for Appellant.Mr. S. R. Agarkar, APP for the State/Respondent.CORAM: SARANG V. KOTWAL, J.
DATE: 09th JANUARY, 2023
JUDGMENT:
1. The Appellant has challenged the Judgment and Order dated 10/05/2018 passed by Additional Sessions Judge, Greater
MANUSHREE V
NESARIKAR
Digitally signed by MANUSHREE V NESARIKAR Date: 2023.01.13 11:51:35 +0530
Mumbai, in Sessions Case No.695 of 2016. The Appellant was
convicted for commission of offence punishable u/s 308 of the
Nesarikar
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Indian Penal Code and was sentenced to suffer rigorous
imprisonment for 7 years. He was also convicted for the offence
punishable u/s 135 r/w 37(1)(3) of the Maharashtra Police Act
and was sentenced to suffer simple imprisonment for 1 year and
in default of payment of fine to suffer simple imprisonment for
15 days. He was acquitted from the charges of commission of
offence punishable u/s 85(1) of the Maharashtra Prohibition
Act. Charge u/s 307 of the Indian Penal Code was also framed
against the Appellant besides other charges. But he was
convicted u/s 308 of the Indian Penal Code instead. Both the
sentences were directed to run concurrently. He was given set
off u/s 428 of Cr.P.C.
2. The prosecution case is that, on 17/07/2016, the first
informant Pooja Balkrishna Pakhare was walking on a platform
at Dadar Railway Station (Central). The Applicant was present
at the door of a local train. The local train was moving. The
Appellant wielded a knife in the air, thereby causing injury to
the neck of the first informant. The Appellant got down at
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Matunga railway station and climbed another compartment.
P.W.8, who was also travelling in the same train, saw all this. He
got down at Sion Railway station and climbed the same
compartment where the Appellant had climbed. He caught the
Appellant and with the help of others, the Appellant was
brought down on the platform. The police came there. He was
taken to the police chowky. In the meantime, the first informant
arrived at Sion railway station on the same platform in another
local train. She identified the Appellant. The Appellant’s clothes
were seized. He was found carrying a knife. It was seized. The
first informant was sent for medical treatment. Her FIR was
registered vide C.R.No.174/2016 at Dadar railway police
station. The Appellant was put under arrest. Statements of the
witnesses were recorded. Various Panchanamas were recorded
and at the conclusion of the investigation, the charge-sheet was
filed. The case was committed to the Court of Sessions.
3. During trial, the prosecution examined in all 12
witnesses, including the first informant and the P.W.8 as the
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eyewitness. Besides them, different Panchas, Medical Officer and
the police officers were examined. The CCTV footage of the
platform at Dadar railway station was procured and produced
on record. However, when the DVD was played in the Court
room, it did not show anything. The defence of the Appellant
was that he had not committed any offence and he was
implicated falsely. He admitted that he was travelling in the same
train, but he had done nothing. Somebody else had committed
that offence and he was falsely implicated in the case.
4. Learned Trial Judge considered the evidence and the
statement of the Appellant. He recorded the finding that the
offence u/s 307 of the IPC was not committed, but the Appellant
had committed an offence u/s 308 of the IPC. He then recorded
his findings and his order of conviction and sentence.
5. The important witness in this case is P.W.1 Pooja
Pakhare. She has deposed that she had gone for a picnic to Virar
with her friends in the morning of 17/07/2016. While returning
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from Virar, she boarded the Virar to Churchgate train at 07.10
p.m. She got down at Dadar at 8.20 p.m. She was walking on
the platform No.2. At that time, a local train to Kalyan had
stopped at that platform. She saw a person with something in
his hand. He was in the train. The train started moving. She
realized that the said person had given a blow of something on
her neck. She sustained bleeding injury. The passengers on the
platform advised her to go to a hospital. She waited for some
time as she was frightened. She allowed one more local train to
pass and then caught the next train for going to Sion as she was
resident of Sion. She got down at Sion railway station. At that
time, she saw that one person was caught by the mob and that
person had some instrument like knife in his hand. She
identified him as the same man who had caused injury to her
neck. He was taken to police chowky at Sion platform. She
narrated the incident to the police officer. She gave her
complaint. It is produced on record at Ex.22. She was taken to
Dadar railway station for showing the spot of incident. She
identified the Appellant in the Court. She produced her blood
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stained clothes on the next morning before the police. Her FIR at
Ex.22 substantially corroborates her version. It was registered at
01.42 a.m. in the night between 17/07/2016 and 18/07/2016.
It was registered after P.W.1 was given some treatment at Sion
hospital. The FIR mentions that the police had asked the
Appellant his name. At that time, he had told his name as Firoz
Yusuf Shaikh. P.W.1 had also given details of her name and
address which are mentioned in the FIR.
In the cross-examination she stated that the blow was
sustained by her when the train started. She was walking on the
platform at that time. She identified the assailant at the railway
platform of Sion railway station. She had told the police that he
was the same assailant. She denied the suggestion that she did
not identify him and came to know about him from the other
passengers that he was the assailant. She volunteered that she
had seen the assailant as he had got in the train when the train
had started. In the FIR, she had not mentioned that the knife
was seized by the police in her presence.
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6. P.W.8 Sumeet Aarak was an eyewitness to the incident.
He has deposed that he boarded the Kalyan local train from
Dadar at about 08.30 p.m. His friend boarded the ladies
compartment. As the train started, one person took out a knife
and had moved that knife in the air. He saw that a girl was
walking on the platform. The person with the knife was standing
at the door of the next compartment. P.W.8 was also standing at
the door of another compartment. The person with the knife
gave blow on the neck of the girl walking on the platform. The
other passengers started shouting. The train stopped at Matunga
station. The assailant got down from the train and again
boarded the train. But this time he boarded ladies compartment,
in which P.W.8’s friend was travelling. P.W.8 heard shouts from
the ladies compartment. The train reached Sion station. As the
train slowed down, P.W.8 and others got down from the train
and straight away went to the ladies compartment and caught
the assailant. He was dragged out of the train on platform No.1.
The mob started assaulting him. The police came there. Within
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3-4 minutes P.W.1 came there in another local train. She came
towards them. She saw the person who was apprehended by
them. She informed the police. She had sustained bleeding
injury on her neck. The assailant gave his name as Firoz Shaikh.
The police took P.W.1 to hospital. P.W.8 then went to police
chowky at Sion railway station along with the Appellant. On
personal search of the Appellant, a knife was recovered. Then he
was taken to Dadar railway police station. There were some
minor omissions pointed out to him from his police statement.
He had not stated before the police that the Appellant had
boarded the ladies compartment. The word ‘ladies’ was missing
from his police statement. Apart from that, there is hardly any
effective cross-examination.
7. P.W.2 Salauddin Daruwala was the Pancha in whose
presence the clothes of the victim were seized at about 09.30
a.m. on 18/07/2016. It was a ‘T’ shirt and a handkerchief.
8. P.W.3 Sundar Krishna Naidu was a Pancha in whose
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presence, the Appellant was arrested at 09.00 p.m. on
17/07/2016. At that time, the knife was recovered from his
person.
9. P.W.4 Anand Anil Sande was another Pancha in whose
presence, the blood stained clothes of the P.W.1 were seized at
about 07.00 a.m. on 18/07/2016. The Panchanama is produced
on record at Ex.31. Those clothes were blood stained. Ex.32 was
a Panchanama of CCTV footage. It was admitted by the defence.
The CCTV footage was of the railway platform of Dadar railway
station, where the incident had taken place in between 08.26
p.m. to 08.30 p.m. However, the prosecution examined P.W.12
Raja Shriniwas Mulakala, who was a railway Engineer to prove
the recording of the CCTV footage on a DVD. But when this DVD
was played in the Court, it was found to be blank. Therefore this
particular circumstance was not held against the Appellant.
10. P.W.5 Dr. Gopi Shankar, had examined P.W.1. She stated
that P.W.1 had sustained injury on the neck of the size 8 x 1 x 0.5
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cm. She was treated as an outdoor patient at Sion hospital. It
was a simple injury. The medical certificate is produced on
record at Ex.35.
11. P.W.6 Police Naik Mangesh Ayare, was examined to
prove that prohibitory order was issued by the Commissioner of
Police, Mumbai, on 04/07/2016 and it was pasted at railway
station from 07/07/2016 onwards. This evidence was accepted
by the Trial Judge.
12. P.W.7 Sachin Rajaram Honkhambe was on duty at Sion
railway station at the relevant time. When he was present on the
platform, he saw that the mob was beating a person. P.W.8 had
caught that person. P.W.7 went there and took that person in
their custody. He was the Appellant. Within a short time, P.W.1
came there. She had sustained injury on her neck. She pointed
towards the Appellant and informed that he had assaulted her.
P.W.1 and the Appellant were taken to police chowky. A knife
was recovered from the Appellant’s person.
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13. P.W.9 ASI Laxman Tukaram Mhaskar had recorded the
statement of P.W.1 and registered the offence.
In the cross-examination he stated that the Appellant
was in the police lockup throughout the night after his medical
examination was done. When the complaint was recorded, the
Appellant was present in the police station.
14. P.W.10 ASI Dashrath Ganpatrao Shinde had also gone
to the platform where the Appellant was apprehended by the
mob. He made enquiries with the P.W.1. Then they went to the
police chowky. This witness sent the P.W.1 with PC Honkamble to
Sion hospital. This witness then took personal search of the
Appellant. A knife was seized from his person.
15. P.W.11 PI Dattu Namdev Shinde, was the Investigating
Officer. He prepared the Arrest Panchanama. He conducted to
the Spot Panchanama at Dadar railway station. During
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investigation, it transpired that the Appellant had given a wrong
name. Therefore they collected his school certificate. Thereafter
it was revealed that the Appellant’s correct name was Farid
Mohd. Ahmed Shaikh. He also collected the CCTV footage and
collected the certificate issued in respect of that footage. The
investigation was completed and the charge-sheet was filed by
this witness.
16. As mentioned earlier, P.W.12 Raja Shriniwas Mulakala
was the Engineer with the Railway. He had recorded the CCTV
footage on DVD and had given certificate u/s 65-B of the Indian
Evidence Act.
This in short is the evidence led by the prosecution.
17. Heard Mr. Aniket A. Gawand, learned counsel for the
Appellant and Mr. S. R. Agarkar, learned APP for the State.
18. Learned counsel for Appellant submitted that the
evidence shows that P.W.1 herself had not seen the Appellant
actually assaulting her. She had not made any complaint
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immediately to Dadar police station. There is delay in lodging
the FIR. The knife was not seized in front of her. The
commission of offence by the Appellant was told by the other
people to the police officer. The C.A. report does not show that
the knife was blood stained. It was a simple injury and therefore
offence u/s 307 or 308 of IPC is not made out. The Appellant
was not caught immediately at Matunga Police station. P.W.8 was
a chance witness. He was not reliable. The DVD produced before
the Court was blank and therefore adverse inference be drawn
in that respect.
19. Learned APP opposed these submissions. According to
him, the evidence of P.W.1 is corroborated by evidence of P.W.8.
The Appellant was caught immediately at Sion railway station
and therefore there was no dispute about his identity. He was
caught by the mob. P.W.8 had seen the entire incident. The
Appellant was found with a knife. There is no explanation as to
why the Appellant had carried the knife.
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20. I have considered these submissions. The main
evidence in this case, of course, is that of the P.W.1 and P.W.8.
P.W.1 has clearly described the incident. She was walking on the
platform. The Appellant was standing at the door and from the
moving train, he gave blow with knife on her neck. It had
caused injury which was 8 cm in length. Therefore, though it is
described as a simple injury, it was on the vital part caused with
a deadly weapon and therefore it cannot be said that only a
minor offence was committed.
21. P.W.8 has described the further incident because he was
travelling in the same train in the next compartment. He had
actually seen the assault. He had seen that the Appellant had got
down at Matunga railway station and had boarded another
compartment. There were shouts from that compartment.
Therefore at Sion station, P.W.8 and others entered that
compartment and caught the Appellant. He was brought down
on the platform at Sion railway station. Immediately, the police
rushed there. The evidence of the police officers also
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corroborates the version of P.W.8. Within a short time, P.W.1
arrived there in another local train. All these events corroborate
each other and the evidence of P.W.1 and P.W.8 is supported by
the two police officers, who had reached the platform when the
Appellant was caught by the mob. After that, the Appellant was
taken to police chowky. His personal search led to the recovery
of weapon i.e. knife. Though C.A. report does not show presence
of blood, the prosecution case is that it was a slash injury and
the knife was kept in the pocket of the pant. The pocket of the
pant does show presence of ‘A’ group blood, which was the same
group of the P.W.1. Therefore not finding blood on the knife in
this particular case, would not affect the prosecution adversely.
In fact, finding of the knife with the Appellant itself is an
incriminating circumstance. The Appellant has not offered any
explanation and it corroborates the evidence of P.W.1 and P.W.8.
Within a short time he was taken to police station and the knife
was immediately recovered. There is no delay in all these steps
and therefore there was no scope for concoction or creation of
any false evidence.
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22. The other corroborative piece of evidence i.e. CCTV
footage is held to be not proved by the learned Trial Judge by
giving valid reasons. He has discussed as to how the DVD was
blank. No acceptable reason was offered by the prosecution.
However, it was only a corroborating piece of evidence. Even
leaving aside that particular piece of evidence, the prosecution
has been successful in establishing the guilt of the Appellant
beyond reasonable doubt based on the evidence of P.W.1 and
P.W.8 and the other police officers.
23. Learned Trial Judge has convicted and sentenced the
Appellant u/s 308 of the IPC and not u/s 307 of the IPC. There
is no challenge to that particular finding made by the State by
way of Appeal against Acquittal. Even otherwise, the fact
remains that the Appellant had committed the act causing injury
on the neck of the victim i.e. P.W.1. Therefore, ingredients of
section 308 of IPC are proved in any case. There is nothing to
show that the Appellant was knowing the P.W.1. Therefore, the
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offence assumes more seriousness because it was committed in a
crowded place and an innocent passenger was needlessly
assaulted. Therefore, there is no further scope to show leniency
as far as sentence is concerned. The offence u/s 135 of the
Maharashtra Police Act is also held to be proved. Learned Judge
has given sufficient reasons for that findings.
24. Considering all these aspects, I am of the opinion that the prosecution has proved its case beyond reasonable doubt. I do not find any merit in the Appeal. The Appeal is accordingly dismissed.
(SARANG V. KOTWAL, J.)
3 issues framed by the court
Whether the High Court is justified in dismissing the appeal against conviction under Section 308 of the Indian Penal Code for attempting to cause grievous hurt with a knife.
Whether the discrepancy in the CCTV footage disentitles the victim to the benefit of the doubt since the Appellant was caught by the mob.
Whether the Appellant is entitled to further leniency in sentencing considering the injury was committed on a vital part in a crowded place.
2 provisions across 2 enactments
Farid Shaikh
State of Maharashtra
SARANG V. KOTWAL
MANUSHREE V NESARIKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court