Full Judgment Text
2022:BHC-AS:28673
1 of 21 205-apeal-128-18 (Judgment)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 128 OF 2018
Mohammad Azad Alam Diljad Ansari ..Appellant
Versus
The State of Maharashtra ..Respondent
__________
Mr. Swapnil Ovalekar, (Appointed Advocate) for Appellant.
Mr. S. R. Agarkar, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
nd
DATE : 22 NOVEMBER 2022
JUDGMENT :
1. The Appellant has challenged the Judgment and order
dated 11/09/2017 passed in Sessions Case No.152 of 2015 by
learned Additional Sessions Judge, Kalyan. The Appellant
convicted for commission of offence punishable U/s.307 of I.P.C.
and was sentenced to suffer R.I. for 7 years and to pay fine of
Rs.3000/- and in default of payment of fine to suffer S.I. for 3
months. He was given benefit of set off U/s.428 of the Cr.p.c. The
Appellant was acquitted from the Charges of commissio
offence punishable U/s.150, 152 and 155 of the Indian Railways
Act.
Gokhale
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2. Heard Shri. Swapnil Ovalekar, learned appointed
Advocate for the Appellant and Shri. Agarkar, learned APP for the
State.
3. Learned APP has submitted a report from the
Superintendent of Nashik Road Central Prison dated 18/07/2022.
It is mentioned in the report that the Appellant had suffered actu
imprisonment of 5 years, 4 months and 8 days till 15/05/2022.
After that he was released on Covid-19 parole and then he has n
surrendered.
4. The prosecution case is that the injured Nandku
Joshi in this case was travelling in a bogie for handicapped perso
in Kasara bound local train. He boarded the train at Dombivali. A
that time, the Appellant was standing at the door. It was difficult
for the injured to enter the bogie and, therefore, there was some
heated exchange of words. The other passengers supported the
injured. One of them even slapped the Appellant. Ther
further trouble. The Appellant scuffled with others and pushed th
injured Joshi from the bogie from a running train. Joshi fell down
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and suffered compound fracture of his right elbow. He
suffered injuries on his head. The co-passengers caught
appellant in the bogie itself. Somebody pulled the chain. The tra
stopped at Kalyan station. In the meantime, the injure
walked back upto Dombivali railway station. He was helped by
railway police. The Appellant was brought from Kalyan and was
handed-over to the police. The F.I.R. was lodged. The investigati
was carried out. The charge-sheet was filed and the case w
committed to the court of Sessions.
5. During trial, the prosecution examined 13 witnes
including the injured Nandkumar Joshi, two eye witnesses, the
Motorman and the Guard of the local train, two Medical officers,
G.R.P. personnels, Deputy Station Master of Kalyan Railway stati
and two Investigating Officers.
6. The defence of the Appellant was that, he was travelling
in that local train in a bogie for handicapped people. A passenge
asked him to get down. He told him that he would get down on
the next station, but the passengers started abusing and beating
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him with kicks and fist blows, though he was standing at the inne
side of the bogie. A false case was lodged against him. He has no
committed anything wrong.
His defence was not accepted by learned trial Judge.
He believed the evidence of the prosecution. According to learne
trial Judge, all the ingredients of Section 307 of I.P.C. were made
out. After recording his conclusion, he convicted and sentenced t
Appellant, as mentioned earlier.
7. The prosecution case unfolds through the evidence of
PW-1 Nandkumar Joshi. He has deposed that, he was having issu
of blood pressure. He boarded a fast local train going towards
Kasara at 7.19p.m. on 09/01/2015 from Dombivli railway station
He boarded a bogie for handicapped persons. The Appellant was
standing at the door obstructing the entrance. PW-1 requested h
to shift aside, but the Appellant started abusing and assaulting h
with fists. The other passengers tried to pacify him, but he was n
in a mood to listen. One of the co-passengers slapped
Appellant on the back side. PW-1 tried to intervene and stop the
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5 of 21 205-apeal-128-18 (Judgment)
quarrel, but the Appellant was angry with him due to the inciden
at the entrance of the bogie. He pushed the PW-1 from the bogie
PW-1 fell down. His right hand was fractured at the elbow joint.
He also received six severe injuries to his head. He went towards
Dombivli by walking. According to him, the incident took place between
Dombivali and Thakurli railway station. He reached the platform
No.2 of the Dombivali railway station. Somebody took him to the
railway police on platform No.3. A memo from the Station Maste
was obtained and the PW-1 was taken to Shastri Nagar Hospital.
The Medical Officer gave him first aid treatment and referred him
to Sion Hospital. Till then his relatives came there. Then he was
taken to Sai Sadan Hospital, Kalyan; where he was treated furthe
The police came to Sai Sadan Hospital and recorded his F.I.R. Th
F.I.R. was produced on record at Exhibit 15. He was hospitalized
for about 9 to 10 days. He identified his own blood stained clothe
in the Court. He also identified the Appellant in the Court.
In the cross-examination, he deposed that, whi
lodging his F.I.R. he had mentioned that the said boy scuffled wit
him when he entered the bogie, however, that particular portion
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6 of 21 205-apeal-128-18 (Judgment)
was not mentioned in his statement before the police and he cou
not assign any reason as to why the word ‘scuffle’ w
mentioned in his statement. He was suffering from high blood
pressure and he agreed that if his blood pressure shot up, he felt
giddiness and usually fell down. On 09/01/2015, his blo
pressure was high. He accepted that, because of heavy crowd th
was no place to sit in the bogie. He denied the suggestion that, h
fell down due to giddiness suffered because of blood pressure.
After the incident, he saw the Appellant for the first time while h
evidence was recorded in the Court. His F.I.R. at Exhi
substantially corroborated his evidence.
8. PW-4 Ashwin Purohit was one of the co-passengers. He
has deposed that, he was travelling in the same bogie at the tim
of incident. PW-1 boarded the bogie at Dombivli railway station.
There was exchange of words between the Appellant and PW-1.
During that quarrel somebody shouted that, ‘uncle fell down from
the train’. PW-4 and others tried to pull the chain, but the train d
not stop. Some passengers caught the Appellant. The local train
arrived at Kalyan station. Then they alighted at Kalyan railway
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station and approached the R.P.F. office and reported the inciden
The Appellant was handed-over to R.P.F. officials. Then he was
handedover to Dombivli police. This witness stated that, he was
not in a position to identify the Appellant because he had seen h
only once at the time of the incident. Thus, his evidence describe
the incident in general and is not of much help to either the
prosecution or the defence. Its Evidentiary value is limited. It onl
corroborates the prosecution case to a certain extent a
demonstrates that the incident had taken place.
9. PW-9 Vivek Bhor is another important eye witness. He
has deposed that the incident took place on 09/01/201
caught the Kasara local train at Mulund station at 07.08p.m. One
physically normal boy entered their bogie. The others told him to
get down, but he started quarreling with them. At Do
railway station, PW-1 boarded the bogie. He also asked
Appellant why he had boarded that bogie and there was quarrel.
The Appellant started scuffling and beating PW-1. This witness h
further deposed that, the Appellant pushed PW-1 thrice. He push
on his chest and therefore, PW-1 fell down. Then he also pushed
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PW-1’s legs. PW-1 fell down between Thakurli and Kalyan. The
other passengers caught the Appellant. One Ashwin Pur
(PW-9) travelling in the train pulled the chain and also caught th
Appellant. The others also helped him in catching the Appellant.
The local train did not stop at Thakurli station, but stopped at
Kalyan railway station at about 7.30p.m. Then railway officers
along with R.P.F. came there. The Appellant was handed over to
them. This witness identified the Appellant in the Court as the
person who had pushed the PW-1 from the train. There
certain portions of his depositions which were not mentioned by
him in his police statement. Those portions in the form
omissions were put to him. He could not explain as to why those
portions were not appearing in his police station. He could not
explain why it was not mentioned that, PW-1 was talking with th
Appellant angrily, or that the Appellant beat PW-1, or that the
Appellant pushed PW-1 thrice, or that he had given two jerks on
the chest and one jerk on the leg. All these omission
important, however, the defence has not taken care to prove the
omissions through the evidence of the Investigating of
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9 of 21 205-apeal-128-18 (Judgment)
Therefore, those omissions cannot be used by the defence in this
case.
From the evidence of these three witnesses i.e. PW-1,
PW-4 and PW-9 the incident is established as to how the PW-1 w
pushed by the Appellant outside the running train. The
evidence is mostly supportive in nature.
10. PW-2 Harjiram Menon was Deputy Station Master at
Kalyan Railway station. He has deposed that the concerned loca
arrived at Kalyan at 7.28p.m. The motorman gave a specific sou
indicating an emergency and seeking help. The railway officials
went to the local train and heard the noise from the coach for
handicapped persons. They went there and found that
Appellant was caught by some passengers. The R.P.F. personnel
were called. The boy was handedover to them and then he was
taken to G.R.P. police station, Kalyan. This witness identified the
Appellant in the Court. Thus, this witness has not deposed about
the main incident, but has given evidence about handing over of
the Appellant to the police officers.
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11. PW-3 Sachin Ugale was attached to G.R.P. Kalyan. He ha
deposed in a similar fashion as deposed by PW-2. He has depose
that, after the co-passengers had apprehended the Appellant, he
was handed over to G.R.P. police station at Kalyan railway statio
The co-passengers Vivek Bhor – PW-9 and Ashwin Purohit – PW-4
were with him. The incident had taken place within th
jurisdiction of G.R.P. Dombivli police station and, therefore, the
Appellant was taken there and was handed over to P.
Dombivali G.R.P. police station.
12. PW-5 Suresh Jadhav was a point-man on platform Nos.4
and 5 of Kalyan railway station. He has also spoken about the co
passengers having caught the appellant. He has suppor
evidence of PW-2 and 3.
13. PW-6 Soheb Shaikh was a pancha in whose presence
personal search of the Appellant was conducted and then clothe
of the injured PW-1 were seized. Those panchanamas w
produced on record at Exhibit 33 and 34.
14. PW-7 Ramgopal Verma was a Motorman of the said loca
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train. He has deposed that the train halted at Dombivli platform
7.25p.m. Thereafter it started from Dombivli and had r
around Thakurli. He noticed the buzzer and audio soun
indicating chain pulling. According to him, at that time, the spee
of his local train was upto 100 Kms. per hour, but because of tha
sound he reduced the speed to about 20Kms. per hour. Then he
gave a signal to the Guard who responded by giving normal buzz
after verifying the situation. Therefore, he took the train to Kalya
railway station. Then he gave whistle sound indicating
trouble. The Station Master responded and then the Appellant w
arrested.
15. PW-8 Prakash Swami was the Guard on that train. He
has deposed similar to PW-7.
16. PW-10 Dr. Majetia Shamjibhai and PW-11 Dr. Swapnil
Zambre were examined by the prosecution to prove injuries. Bot
of them had treated the injured PW-1. It is hardly in dispute that
the injured PW-1 had suffered following injuries:
i) Compound fracture injury on right forearm.
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ii) Multiple C.L.W. on scalp over left ear-pinna.
In the cross-examination of PW-10, he accepted that if
the blood pressure shoots up the person may feel giddiness and
because of fall due to giddiness these injuries were possible. He
also accepted that there was no abnormalities in the brain of PW
17. PW-11 Dr. Zambre elaborated and deposed that, there
was Grade 3 B open fracture of radius ulna with bone loss. Size o
the injury was 8cm x 6cm x bone deep. The nature of injury was
grievous and dangerous to life. The injuries were possible if a
person was pushed from a running train. The second stage surge
failed and the patient was advised for third stage surgery, but th
patient did not respond positively. All the medical papers were
produced on record. This witness also accepted that PW-1 was
suffering from blood pressure and those injuries were possible if
person fell down from a running train because of giddiness cause
by blood pressure.
18. PW-12 P.S.I. Jayant Dumbre was attached to Dombivali
(Railway) police station. He has deposed that, PW-1 came to the
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police station at about 10.00p.m. to 10.15p.m. and narrated the
incident. PW-1 was sent to Shastri Nagar Hospital, Dombivli alon
with memo issued by the Station Master of Dombivli
station. The report of PW-1 was reduced into writing i
hospital. This witness had carried out personal search
Appellant brought by two passengers. The clothes of the victim
were seized. The medical papers were collected by him
identified the Appellant before the Court.
19. PW-13 Mahesh Bagve was the next Investigating Officer
He had recorded the statements of various witnesses. He carried
out the remaining investigation and had submitted the charge-
sheet.
20. Learned counsel for the Appellant made followin
submissions.
That the prosecution has not proved its case beyond
reasonable doubt. The evidence of PW-1, PW-4 and PW-9 is not
consistent. PW-9 himself has given contrary answers and there a
major omissions in his evidence. The injuries could have been
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possible because of the fall caused by high blood pressure. The
nature of injuries do not match with the description o
incident.
21. Learned APP, on the other hand, submitted tha
prosecution has proved its case through the evidence of PW-1, P
4 and PW-9. Rest of the evidence sufficiently corroborates their
version. The Appellant was caught at the spot by co-passengers.
The PW-4 and PW-9 have specifically deposed about his arrest.
22. I have considered these submissions. The evidence of
PW-1, PW-4 and PW-9 is consistent on major aspects. Though the
are minor discrepancies regarding some minor details, the incide
as a whole is consistently deposed by them. There ar
omissions in the evidence of PW-9 Vivek Bhor, but as mentioned
earlier, these omissions are not proved through the evidence of
Investigating Officer. Even if those omissions are ignore
consistent fact which is proved by the prosecution bey
reasonable doubt is that, after PW-1 boarded the train there was
quarrel between him and the Appellant. There was also scuffle a
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15 of 21 205-apeal-128-18 (Judgment)
quarrel between the Appellant and other passengers. In
incident the Appellant deliberately pushed the PW-1 fro
running train. The PW-1 fell down and suffered these injuries.
Though, PW-4 had not actually seen the PW-1 falling from the
train, the PW-1 himself has deposed that, because of the push
given by the Appellant, he had fallen down. To that extent, the P
9 has supported the version of PW-1. Thus, the prosecution has
proved that, because of the quarrel the appellant got angry and
deliberately pushed the PW-1 from a running train.
23. The Appellant was caught in the bogie itself b
passengers. This fact is consistently deposed and proved throug
the evidence of PW-4 and PW-9. In that behalf, both
witnesses corroborate each other. They are further corroborated
the evidence of PW-2 the Deputy Station Master of Kalyan Railwa
station, PW-3 Sachin Ugale – G.R.P. personnel and PW-5 Suresh
Jadhav. These witnesses have deposed as to how the Appellant w
already caught by the co-passengers and how he was taken in th
custody by the officers. Thus, the prosecution has also proved th
the Appellant was caught by the co-passengers in the bogie itsel
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16 of 21 205-apeal-128-18 (Judgment)
after he had pushed the PW-1 from a running train. Though, PW-
has not identified the Appellant, the PW-1, PW-9 and
witnesses have identified the Appellant. Thus, the prosecution ha
proved that the co-passengers had caught the Appellant in the
bogie after the incident. He was immediately caught at the scen
of offence.
24. The medical evidence is also clear enough. The PW-11
has deposed that the injury was grievous and dangerous to life.
The injuries suffered by PW-1 are undisputed. Though, the injurie
are possible by falling from a running train; it is also established
that the Appellant had pushed the PW-1 and, therefore, he has
caused those injuries to PW-1.
25. PW-7 Ramgopal Verma was a Motorman and in spite of
having received an indication of chain pulling, he went ahead up
Kalyan railway station because of the signal given by the Guard.
He has deposed that the train was running at a speed of 100 Km
per hour when he received the signal of chain pulling. The incide
had taken place soon after the train had left the Dombivli railway
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17 of 21 205-apeal-128-18 (Judgment)
station. The train was gathering speed. But when the PW-1 fell
down, the prosecution has not proved that, at that point of time
the train was running at a speed of 100 Kms. per hour. The chai
was pulled after the PW-1 had already fallen down from the bogi
Thus, the prosecution has not proved that, at that point of time t
train was running in a high speed. What is proved by
prosecution is that the injured PW-1 was pushed from a running
train and that itself was dangerous. The prosecution has also not
established whether the injured PW-1 fell on another railway trac
or on the side where there was no to and fro traffic of the local
trains. This aspect is important in considering whether
Appellant had requisite intention necessary U/s.307 of I.P.C.
Thus, from the above discussion, I am of the opinion
that the prosecution has proved beyond reasonable doubt that, i
the quarrel and scuffle the Appellant had deliberately pushed the
PW-1 from a running train, causing grievous injury.
26. The next crucial question is whether the offence would
fall within the four corners of Section 307 of I.P.C. In that behalf,
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18 of 21 205-apeal-128-18 (Judgment)
the prosecution evidence is lacking. The prosecution ca
short of proving offence U/s.307 of I.P.C. From the ev
discussed above, it is clear that the Appellant was not knowing t
injured PW-1. There was no premeditation and no preparation fo
commission of offence. The incident had taken place suddenly as
result of sudden quarrel. In that quarrel the Appellant got angry
and pushed PW-1 from a running train. Therefore, his intention o
knowledge cannot be stretched to conclude that he attempted to
commit murder of PW-1. Though, it is proved that the injured PW
1 had suffered grievous injury, which was even dangerous to his
life, the requisite intention and knowledge mentioned U/s.307 of
I.P.C. is not proved. From the nature of evidence, in my view,
though the ingredients of Section 307 of I.P.C. are not proved, th
ingredients of Section 308 of I.P.C. are proved by the prosecution
Section 308 of I.P.C. reads thus:
“308. Attempt to commit culpable homicide -
Whoever does any act with such intention or
knowledge and under such circumstances that, if
he by that act caused death, he would be guilty of
culpable homicide not amounting to murder, shall
be punished with imprisonment of either
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description for a term which may extend to three
years, or with fine, or with both; and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either description
for a term which may extend to seven years, or
with fine, or with both.”
27. As mentioned earlier, it was a sudden fight an
therefore, there was no premeditation or preparation. At the sam
time, the Appellant had pushed the injured from a running train,
therefore, he can be attributed knowledge that his act
endangering to life of the PW-1. Therefore, his act wo
within the meaning of Section 308 of I.P.C. To that extent, the
conviction recorded against the Appellant needs to be modified
and instead of Section 307 of I.P.C. the Appellant will have to be
convicted U/s.308 of I.P.C. which is a lesser offence. Since, in the
incident hurt is caused to PW-1, the maximum punishment
prescribed U/s.308 of the I.P.C. can extend to 7 years. But in the
present case, looking at the nature of injuries suffered by PW-1,
is not a case where maximum punishment is required
imposed on the Appellant. At the time of arrest, the Appellant wa
hardly of 22 years old. He was recently married and was blessed
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with a child only a few days before the incident. These are the
mitigating circumstances in deciding the quantum of sentence. T
Appellant has already suffered 5 years, 4 months and 8 days of
imprisonment for his act. Thus, the sentence can be reduced to t
period he has already undergone.
28. With the result, following order is passed:
O R D E R
i) The Appeal is partly allowed.
ii) The conviction and sentence of the Appella
recorded U/s.307 of the I.P.C. is set aside.
iii) Instead, the Appellant is convicted for commission
of offence punishable U/s.308 of the I.P.C.
sentence is reduced to the period which he has
already undergone.
iv) The imposition of fine of Rs.3000/- and in default
of payment of fine, sentence to suffer S.I. for 3
months is maintained.
v) The Appellant is granted benefit of Section 428 of
the Cr.p.c.
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vi) The Appeal is accordingly disposed of.
(SARANG V. KOTWAL, J.)
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1 of 21 205-apeal-128-18 (Judgment)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 128 OF 2018
Mohammad Azad Alam Diljad Ansari ..Appellant
Versus
The State of Maharashtra ..Respondent
__________
Mr. Swapnil Ovalekar, (Appointed Advocate) for Appellant.
Mr. S. R. Agarkar, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
nd
DATE : 22 NOVEMBER 2022
JUDGMENT :
1. The Appellant has challenged the Judgment and order
dated 11/09/2017 passed in Sessions Case No.152 of 2015 by
learned Additional Sessions Judge, Kalyan. The Appellant
convicted for commission of offence punishable U/s.307 of I.P.C.
and was sentenced to suffer R.I. for 7 years and to pay fine of
Rs.3000/- and in default of payment of fine to suffer S.I. for 3
months. He was given benefit of set off U/s.428 of the Cr.p.c. The
Appellant was acquitted from the Charges of commissio
offence punishable U/s.150, 152 and 155 of the Indian Railways
Act.
Gokhale
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2 of 21 205-apeal-128-18 (Judgment)
2. Heard Shri. Swapnil Ovalekar, learned appointed
Advocate for the Appellant and Shri. Agarkar, learned APP for the
State.
3. Learned APP has submitted a report from the
Superintendent of Nashik Road Central Prison dated 18/07/2022.
It is mentioned in the report that the Appellant had suffered actu
imprisonment of 5 years, 4 months and 8 days till 15/05/2022.
After that he was released on Covid-19 parole and then he has n
surrendered.
4. The prosecution case is that the injured Nandku
Joshi in this case was travelling in a bogie for handicapped perso
in Kasara bound local train. He boarded the train at Dombivali. A
that time, the Appellant was standing at the door. It was difficult
for the injured to enter the bogie and, therefore, there was some
heated exchange of words. The other passengers supported the
injured. One of them even slapped the Appellant. Ther
further trouble. The Appellant scuffled with others and pushed th
injured Joshi from the bogie from a running train. Joshi fell down
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and suffered compound fracture of his right elbow. He
suffered injuries on his head. The co-passengers caught
appellant in the bogie itself. Somebody pulled the chain. The tra
stopped at Kalyan station. In the meantime, the injure
walked back upto Dombivali railway station. He was helped by
railway police. The Appellant was brought from Kalyan and was
handed-over to the police. The F.I.R. was lodged. The investigati
was carried out. The charge-sheet was filed and the case w
committed to the court of Sessions.
5. During trial, the prosecution examined 13 witnes
including the injured Nandkumar Joshi, two eye witnesses, the
Motorman and the Guard of the local train, two Medical officers,
G.R.P. personnels, Deputy Station Master of Kalyan Railway stati
and two Investigating Officers.
6. The defence of the Appellant was that, he was travelling
in that local train in a bogie for handicapped people. A passenge
asked him to get down. He told him that he would get down on
the next station, but the passengers started abusing and beating
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him with kicks and fist blows, though he was standing at the inne
side of the bogie. A false case was lodged against him. He has no
committed anything wrong.
His defence was not accepted by learned trial Judge.
He believed the evidence of the prosecution. According to learne
trial Judge, all the ingredients of Section 307 of I.P.C. were made
out. After recording his conclusion, he convicted and sentenced t
Appellant, as mentioned earlier.
7. The prosecution case unfolds through the evidence of
PW-1 Nandkumar Joshi. He has deposed that, he was having issu
of blood pressure. He boarded a fast local train going towards
Kasara at 7.19p.m. on 09/01/2015 from Dombivli railway station
He boarded a bogie for handicapped persons. The Appellant was
standing at the door obstructing the entrance. PW-1 requested h
to shift aside, but the Appellant started abusing and assaulting h
with fists. The other passengers tried to pacify him, but he was n
in a mood to listen. One of the co-passengers slapped
Appellant on the back side. PW-1 tried to intervene and stop the
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5 of 21 205-apeal-128-18 (Judgment)
quarrel, but the Appellant was angry with him due to the inciden
at the entrance of the bogie. He pushed the PW-1 from the bogie
PW-1 fell down. His right hand was fractured at the elbow joint.
He also received six severe injuries to his head. He went towards
Dombivli by walking. According to him, the incident took place between
Dombivali and Thakurli railway station. He reached the platform
No.2 of the Dombivali railway station. Somebody took him to the
railway police on platform No.3. A memo from the Station Maste
was obtained and the PW-1 was taken to Shastri Nagar Hospital.
The Medical Officer gave him first aid treatment and referred him
to Sion Hospital. Till then his relatives came there. Then he was
taken to Sai Sadan Hospital, Kalyan; where he was treated furthe
The police came to Sai Sadan Hospital and recorded his F.I.R. Th
F.I.R. was produced on record at Exhibit 15. He was hospitalized
for about 9 to 10 days. He identified his own blood stained clothe
in the Court. He also identified the Appellant in the Court.
In the cross-examination, he deposed that, whi
lodging his F.I.R. he had mentioned that the said boy scuffled wit
him when he entered the bogie, however, that particular portion
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6 of 21 205-apeal-128-18 (Judgment)
was not mentioned in his statement before the police and he cou
not assign any reason as to why the word ‘scuffle’ w
mentioned in his statement. He was suffering from high blood
pressure and he agreed that if his blood pressure shot up, he felt
giddiness and usually fell down. On 09/01/2015, his blo
pressure was high. He accepted that, because of heavy crowd th
was no place to sit in the bogie. He denied the suggestion that, h
fell down due to giddiness suffered because of blood pressure.
After the incident, he saw the Appellant for the first time while h
evidence was recorded in the Court. His F.I.R. at Exhi
substantially corroborated his evidence.
8. PW-4 Ashwin Purohit was one of the co-passengers. He
has deposed that, he was travelling in the same bogie at the tim
of incident. PW-1 boarded the bogie at Dombivli railway station.
There was exchange of words between the Appellant and PW-1.
During that quarrel somebody shouted that, ‘uncle fell down from
the train’. PW-4 and others tried to pull the chain, but the train d
not stop. Some passengers caught the Appellant. The local train
arrived at Kalyan station. Then they alighted at Kalyan railway
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7 of 21 205-apeal-128-18 (Judgment)
station and approached the R.P.F. office and reported the inciden
The Appellant was handed-over to R.P.F. officials. Then he was
handedover to Dombivli police. This witness stated that, he was
not in a position to identify the Appellant because he had seen h
only once at the time of the incident. Thus, his evidence describe
the incident in general and is not of much help to either the
prosecution or the defence. Its Evidentiary value is limited. It onl
corroborates the prosecution case to a certain extent a
demonstrates that the incident had taken place.
9. PW-9 Vivek Bhor is another important eye witness. He
has deposed that the incident took place on 09/01/201
caught the Kasara local train at Mulund station at 07.08p.m. One
physically normal boy entered their bogie. The others told him to
get down, but he started quarreling with them. At Do
railway station, PW-1 boarded the bogie. He also asked
Appellant why he had boarded that bogie and there was quarrel.
The Appellant started scuffling and beating PW-1. This witness h
further deposed that, the Appellant pushed PW-1 thrice. He push
on his chest and therefore, PW-1 fell down. Then he also pushed
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8 of 21 205-apeal-128-18 (Judgment)
PW-1’s legs. PW-1 fell down between Thakurli and Kalyan. The
other passengers caught the Appellant. One Ashwin Pur
(PW-9) travelling in the train pulled the chain and also caught th
Appellant. The others also helped him in catching the Appellant.
The local train did not stop at Thakurli station, but stopped at
Kalyan railway station at about 7.30p.m. Then railway officers
along with R.P.F. came there. The Appellant was handed over to
them. This witness identified the Appellant in the Court as the
person who had pushed the PW-1 from the train. There
certain portions of his depositions which were not mentioned by
him in his police statement. Those portions in the form
omissions were put to him. He could not explain as to why those
portions were not appearing in his police station. He could not
explain why it was not mentioned that, PW-1 was talking with th
Appellant angrily, or that the Appellant beat PW-1, or that the
Appellant pushed PW-1 thrice, or that he had given two jerks on
the chest and one jerk on the leg. All these omission
important, however, the defence has not taken care to prove the
omissions through the evidence of the Investigating of
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9 of 21 205-apeal-128-18 (Judgment)
Therefore, those omissions cannot be used by the defence in this
case.
From the evidence of these three witnesses i.e. PW-1,
PW-4 and PW-9 the incident is established as to how the PW-1 w
pushed by the Appellant outside the running train. The
evidence is mostly supportive in nature.
10. PW-2 Harjiram Menon was Deputy Station Master at
Kalyan Railway station. He has deposed that the concerned loca
arrived at Kalyan at 7.28p.m. The motorman gave a specific sou
indicating an emergency and seeking help. The railway officials
went to the local train and heard the noise from the coach for
handicapped persons. They went there and found that
Appellant was caught by some passengers. The R.P.F. personnel
were called. The boy was handedover to them and then he was
taken to G.R.P. police station, Kalyan. This witness identified the
Appellant in the Court. Thus, this witness has not deposed about
the main incident, but has given evidence about handing over of
the Appellant to the police officers.
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10 of 21 205-apeal-128-18 (Judgment)
11. PW-3 Sachin Ugale was attached to G.R.P. Kalyan. He ha
deposed in a similar fashion as deposed by PW-2. He has depose
that, after the co-passengers had apprehended the Appellant, he
was handed over to G.R.P. police station at Kalyan railway statio
The co-passengers Vivek Bhor – PW-9 and Ashwin Purohit – PW-4
were with him. The incident had taken place within th
jurisdiction of G.R.P. Dombivli police station and, therefore, the
Appellant was taken there and was handed over to P.
Dombivali G.R.P. police station.
12. PW-5 Suresh Jadhav was a point-man on platform Nos.4
and 5 of Kalyan railway station. He has also spoken about the co
passengers having caught the appellant. He has suppor
evidence of PW-2 and 3.
13. PW-6 Soheb Shaikh was a pancha in whose presence
personal search of the Appellant was conducted and then clothe
of the injured PW-1 were seized. Those panchanamas w
produced on record at Exhibit 33 and 34.
14. PW-7 Ramgopal Verma was a Motorman of the said loca
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11 of 21 205-apeal-128-18 (Judgment)
train. He has deposed that the train halted at Dombivli platform
7.25p.m. Thereafter it started from Dombivli and had r
around Thakurli. He noticed the buzzer and audio soun
indicating chain pulling. According to him, at that time, the spee
of his local train was upto 100 Kms. per hour, but because of tha
sound he reduced the speed to about 20Kms. per hour. Then he
gave a signal to the Guard who responded by giving normal buzz
after verifying the situation. Therefore, he took the train to Kalya
railway station. Then he gave whistle sound indicating
trouble. The Station Master responded and then the Appellant w
arrested.
15. PW-8 Prakash Swami was the Guard on that train. He
has deposed similar to PW-7.
16. PW-10 Dr. Majetia Shamjibhai and PW-11 Dr. Swapnil
Zambre were examined by the prosecution to prove injuries. Bot
of them had treated the injured PW-1. It is hardly in dispute that
the injured PW-1 had suffered following injuries:
i) Compound fracture injury on right forearm.
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12 of 21 205-apeal-128-18 (Judgment)
ii) Multiple C.L.W. on scalp over left ear-pinna.
In the cross-examination of PW-10, he accepted that if
the blood pressure shoots up the person may feel giddiness and
because of fall due to giddiness these injuries were possible. He
also accepted that there was no abnormalities in the brain of PW
17. PW-11 Dr. Zambre elaborated and deposed that, there
was Grade 3 B open fracture of radius ulna with bone loss. Size o
the injury was 8cm x 6cm x bone deep. The nature of injury was
grievous and dangerous to life. The injuries were possible if a
person was pushed from a running train. The second stage surge
failed and the patient was advised for third stage surgery, but th
patient did not respond positively. All the medical papers were
produced on record. This witness also accepted that PW-1 was
suffering from blood pressure and those injuries were possible if
person fell down from a running train because of giddiness cause
by blood pressure.
18. PW-12 P.S.I. Jayant Dumbre was attached to Dombivali
(Railway) police station. He has deposed that, PW-1 came to the
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13 of 21 205-apeal-128-18 (Judgment)
police station at about 10.00p.m. to 10.15p.m. and narrated the
incident. PW-1 was sent to Shastri Nagar Hospital, Dombivli alon
with memo issued by the Station Master of Dombivli
station. The report of PW-1 was reduced into writing i
hospital. This witness had carried out personal search
Appellant brought by two passengers. The clothes of the victim
were seized. The medical papers were collected by him
identified the Appellant before the Court.
19. PW-13 Mahesh Bagve was the next Investigating Officer
He had recorded the statements of various witnesses. He carried
out the remaining investigation and had submitted the charge-
sheet.
20. Learned counsel for the Appellant made followin
submissions.
That the prosecution has not proved its case beyond
reasonable doubt. The evidence of PW-1, PW-4 and PW-9 is not
consistent. PW-9 himself has given contrary answers and there a
major omissions in his evidence. The injuries could have been
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14 of 21 205-apeal-128-18 (Judgment)
possible because of the fall caused by high blood pressure. The
nature of injuries do not match with the description o
incident.
21. Learned APP, on the other hand, submitted tha
prosecution has proved its case through the evidence of PW-1, P
4 and PW-9. Rest of the evidence sufficiently corroborates their
version. The Appellant was caught at the spot by co-passengers.
The PW-4 and PW-9 have specifically deposed about his arrest.
22. I have considered these submissions. The evidence of
PW-1, PW-4 and PW-9 is consistent on major aspects. Though the
are minor discrepancies regarding some minor details, the incide
as a whole is consistently deposed by them. There ar
omissions in the evidence of PW-9 Vivek Bhor, but as mentioned
earlier, these omissions are not proved through the evidence of
Investigating Officer. Even if those omissions are ignore
consistent fact which is proved by the prosecution bey
reasonable doubt is that, after PW-1 boarded the train there was
quarrel between him and the Appellant. There was also scuffle a
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15 of 21 205-apeal-128-18 (Judgment)
quarrel between the Appellant and other passengers. In
incident the Appellant deliberately pushed the PW-1 fro
running train. The PW-1 fell down and suffered these injuries.
Though, PW-4 had not actually seen the PW-1 falling from the
train, the PW-1 himself has deposed that, because of the push
given by the Appellant, he had fallen down. To that extent, the P
9 has supported the version of PW-1. Thus, the prosecution has
proved that, because of the quarrel the appellant got angry and
deliberately pushed the PW-1 from a running train.
23. The Appellant was caught in the bogie itself b
passengers. This fact is consistently deposed and proved throug
the evidence of PW-4 and PW-9. In that behalf, both
witnesses corroborate each other. They are further corroborated
the evidence of PW-2 the Deputy Station Master of Kalyan Railwa
station, PW-3 Sachin Ugale – G.R.P. personnel and PW-5 Suresh
Jadhav. These witnesses have deposed as to how the Appellant w
already caught by the co-passengers and how he was taken in th
custody by the officers. Thus, the prosecution has also proved th
the Appellant was caught by the co-passengers in the bogie itsel
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16 of 21 205-apeal-128-18 (Judgment)
after he had pushed the PW-1 from a running train. Though, PW-
has not identified the Appellant, the PW-1, PW-9 and
witnesses have identified the Appellant. Thus, the prosecution ha
proved that the co-passengers had caught the Appellant in the
bogie after the incident. He was immediately caught at the scen
of offence.
24. The medical evidence is also clear enough. The PW-11
has deposed that the injury was grievous and dangerous to life.
The injuries suffered by PW-1 are undisputed. Though, the injurie
are possible by falling from a running train; it is also established
that the Appellant had pushed the PW-1 and, therefore, he has
caused those injuries to PW-1.
25. PW-7 Ramgopal Verma was a Motorman and in spite of
having received an indication of chain pulling, he went ahead up
Kalyan railway station because of the signal given by the Guard.
He has deposed that the train was running at a speed of 100 Km
per hour when he received the signal of chain pulling. The incide
had taken place soon after the train had left the Dombivli railway
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17 of 21 205-apeal-128-18 (Judgment)
station. The train was gathering speed. But when the PW-1 fell
down, the prosecution has not proved that, at that point of time
the train was running at a speed of 100 Kms. per hour. The chai
was pulled after the PW-1 had already fallen down from the bogi
Thus, the prosecution has not proved that, at that point of time t
train was running in a high speed. What is proved by
prosecution is that the injured PW-1 was pushed from a running
train and that itself was dangerous. The prosecution has also not
established whether the injured PW-1 fell on another railway trac
or on the side where there was no to and fro traffic of the local
trains. This aspect is important in considering whether
Appellant had requisite intention necessary U/s.307 of I.P.C.
Thus, from the above discussion, I am of the opinion
that the prosecution has proved beyond reasonable doubt that, i
the quarrel and scuffle the Appellant had deliberately pushed the
PW-1 from a running train, causing grievous injury.
26. The next crucial question is whether the offence would
fall within the four corners of Section 307 of I.P.C. In that behalf,
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18 of 21 205-apeal-128-18 (Judgment)
the prosecution evidence is lacking. The prosecution ca
short of proving offence U/s.307 of I.P.C. From the ev
discussed above, it is clear that the Appellant was not knowing t
injured PW-1. There was no premeditation and no preparation fo
commission of offence. The incident had taken place suddenly as
result of sudden quarrel. In that quarrel the Appellant got angry
and pushed PW-1 from a running train. Therefore, his intention o
knowledge cannot be stretched to conclude that he attempted to
commit murder of PW-1. Though, it is proved that the injured PW
1 had suffered grievous injury, which was even dangerous to his
life, the requisite intention and knowledge mentioned U/s.307 of
I.P.C. is not proved. From the nature of evidence, in my view,
though the ingredients of Section 307 of I.P.C. are not proved, th
ingredients of Section 308 of I.P.C. are proved by the prosecution
Section 308 of I.P.C. reads thus:
“308. Attempt to commit culpable homicide -
Whoever does any act with such intention or
knowledge and under such circumstances that, if
he by that act caused death, he would be guilty of
culpable homicide not amounting to murder, shall
be punished with imprisonment of either
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19 of 21 205-apeal-128-18 (Judgment)
description for a term which may extend to three
years, or with fine, or with both; and, if hurt is
caused to any person by such act, shall be
punished with imprisonment of either description
for a term which may extend to seven years, or
with fine, or with both.”
27. As mentioned earlier, it was a sudden fight an
therefore, there was no premeditation or preparation. At the sam
time, the Appellant had pushed the injured from a running train,
therefore, he can be attributed knowledge that his act
endangering to life of the PW-1. Therefore, his act wo
within the meaning of Section 308 of I.P.C. To that extent, the
conviction recorded against the Appellant needs to be modified
and instead of Section 307 of I.P.C. the Appellant will have to be
convicted U/s.308 of I.P.C. which is a lesser offence. Since, in the
incident hurt is caused to PW-1, the maximum punishment
prescribed U/s.308 of the I.P.C. can extend to 7 years. But in the
present case, looking at the nature of injuries suffered by PW-1,
is not a case where maximum punishment is required
imposed on the Appellant. At the time of arrest, the Appellant wa
hardly of 22 years old. He was recently married and was blessed
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20 of 21 205-apeal-128-18 (Judgment)
with a child only a few days before the incident. These are the
mitigating circumstances in deciding the quantum of sentence. T
Appellant has already suffered 5 years, 4 months and 8 days of
imprisonment for his act. Thus, the sentence can be reduced to t
period he has already undergone.
28. With the result, following order is passed:
O R D E R
i) The Appeal is partly allowed.
ii) The conviction and sentence of the Appella
recorded U/s.307 of the I.P.C. is set aside.
iii) Instead, the Appellant is convicted for commission
of offence punishable U/s.308 of the I.P.C.
sentence is reduced to the period which he has
already undergone.
iv) The imposition of fine of Rs.3000/- and in default
of payment of fine, sentence to suffer S.I. for 3
months is maintained.
v) The Appellant is granted benefit of Section 428 of
the Cr.p.c.
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21 of 21 205-apeal-128-18 (Judgment)
vi) The Appeal is accordingly disposed of.
(SARANG V. KOTWAL, J.)
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