Farid Shaikh @ Firoz Shaikh S/O. ... vs The State Of Maharashtra
2023 Latest Caselaw 274 Bom

                                                      1 / 17                   204-APEAL-848-18.odt

                                     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 Mumbai, in Sessions Case No.695 of 2016. The Appellant was NESARIKAR Digitally signed by MANUSHREE V NESARIKAR Date: 2023.01.13

convicted for commission of offence punishable u/s 308 of the 11:51:35 +0530

Nesarikar 2 / 17 204-APEAL-848-18.odt

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 3 / 17 204-APEAL-848-18.odt

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 4 / 17 204-APEAL-848-18.odt

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 5 / 17 204-APEAL-848-18.odt

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 6 / 17 204-APEAL-848-18.odt

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.

7 / 17 204-APEAL-848-18.odt

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 8 / 17 204-APEAL-848-18.odt

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 9 / 17 204-APEAL-848-18.odt

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 10 / 17 204-APEAL-848-18.odt

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.

11 / 17 204-APEAL-848-18.odt

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 12 / 17 204-APEAL-848-18.odt

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 13 / 17 204-APEAL-848-18.odt

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.

14 / 17 204-APEAL-848-18.odt

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 15 / 17 204-APEAL-848-18.odt

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.

16 / 17 204-APEAL-848-18.odt

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 17 / 17 204-APEAL-848-18.odt

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.)