Bombay High Court
TAHIR KHAN S/O. TASBBAR KHAN PATHANversusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Dismissed
Holding
The conviction under Section 302 IPC is upheld because the dying declarations are credible, the injuries caused death, and the appellant's identity is established.
Summary
The appellant Tahir Khan was convicted by the Sessions Court for murder under Section 302 IPC for allegedly stabbing Hasruddin Shaikh after a dispute over a bag of wine in Daman. The prosecution’s case rested primarily on three dying declarations of the deceased recorded by a police officer and two witnesses, medical evidence establishing multiple grievous injuries, and mobile phone call‑detail records linking the appellant to the victim. The appellant challenged the admissibility of the dying declarations, the causal link between the injuries and death, and his identification as the assailant, arguing that the victim was semi‑conscious, the statements were not made before a magistrate, and the IMEI discrepancy created doubt. The Court held that the dying declarations were voluntary, consistent and trustworthy, the injuries were sufficient to cause death even though death occurred later, and the identity of the appellant was satisfactorily established through the phone records and witness testimony. Consequently, the conviction and sentence of life imprisonment under Section 302 IPC were upheld.
Issues considered
- The admissibility and reliability of the dying declarations despite the victim's semi‑conscious state and lack of magistrate recording
- The causal nexus between the injuries inflicted and the victim's eventual death
- The identification of the appellant as the assailant named in the dying declarations
- The evidentiary value of mobile phone CDRs and IMEI numbers in establishing the appellant's involvement
- Whether a conviction can rest solely on dying declarations in the absence of eyewitness testimony
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 162, 313
- Indian Evidence Act, 1872 — s. 32
- Indian Penal Code — s. 302, 307
Subjects
- murder
- Section 302 IPC
- dying declaration
- causation
- identity of accused
- mobile phone evidence
- forensic evidence
- appellate court
Judgment
Cr.A.234-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 234 of 2018
Tahir Khan S/o. Tasbbar Khan Pathan
Aged about 37 years
R/o Room No. 3219,
Zuppadpati, Shah Bhaga,
Rander, Surat,Gujarat State ...APPELLANT
v/s.
1. State of Maharashtra
2. Union Territory of Daman ...RESPONDENTS
Ms. Nafeesa Khan a/w Ms. Sheeba Khan a/w Adv. Mr. N.V. Khan a/w Mr. Samer
Sharif for Appellant.
Mr. Amit Munde APP for the Respondent No. 1- State.
Mr. Ashwin Thool a/w Ms. Archishmati Chandramore for Respondent No. 2-
Union Territory.
VISHAL CORAM: MANISH PITALE &
SUBHASH
PAREKAR SHREERAM V. SHIRSAT, JJ.
Digitally signed by
VISHAL SUBHASH
PAREKAR RESERVED ON: 24th JUNE, 2026
Date: 2026.09.22
15:08:54 +0530
PRONOUNCED ON: 22nd SEPTEMBER, 2026
----------------
JUDGMENT (Per Shreeram Shirsat, J.)
1. The present Appeal has been filed challenging the impugned judgment and
order dated 24.05.2017 passed by the Court of Session at Daman in Sessions Case
No. 27/2013, whereby the Appellant has been convicted for the offence
punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and has been
sentenced to suffer Rigorous Imprisonment (R.I.) for Life and to pay a fine of Rs.
500/- and in default, to suffer R.I. for 15 days in Crime No. 20/2013 registered
by the Coastal Police Station, Moti Daman.
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2. Brief facts of the prosecution case are as under:
a. It is the case of the prosecution that Hasruddin Sarafuddin Shaikh
(deceased) and the Appellant were acquainted with each other. Both
were fruit sellers and room partners. They were both residing in
Surat.
b. On 21.05.2013 i.e. the day of the incident, both the Appellant as
well as the deceased had gone to Daman, they consumed liquor in an
open compound near Girish Bar, Kachigaon. At about 2:00 a.m.,
while they were preparing to go back to Surat, the Appellant asked
the deceased to lift the bag that contained wine and beer. Upon the
denial of the deceased to lift the said bag, the Appellant assaulted
him with a knife, caused him several injuries and fled away.
c. In the early morning of 22.05.2013, a waiter from Girish Bar,
Kachigaon, saw the deceased lying in an injured condition in an
abandoned building. Thereafter, the owner of the said bar informed
the police. The police sent the deceased to Government Hospital,
Marward, where the deceased underwent surgery.
d. Thereafter FIR bearing CR No 20/2013 came to be registered on
22/5/2013 at Coastal Police Station, Moti Daman, under section 307
and 504 IPC.
e. As the condition of Hasruddin Sarafuddin Shaikh was not improving,
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he was shifted to J.J. Hospital, Mumbai on 26.05.2013. While
undergoing treatment at J.J. Hospital, Mumbai, the deceased
succumbed to his injuries on 04.06.2013. The offence which was
initially registered under section 307 IPC was converted to 302 IPC.
f. During the course of the investigation, the Appellant came to be
arrested on 06.07.2013. After completion of investigation, the
chargesheet was filed before the Judicial Magistrate First Class
(JMFC), Daman. Thereafter, the case was committed to the Court of
Sessions, Moti Daman and was registered as Sessions Case No.
27/2013. The charge came to be framed under Section 302 of the
IPC on 12.10.2015.
g. To bring home the guilt of the Appellant, the prosecution examined
11 witnesses (P.W. 1 to P.W. 11):
P.W. NAME ROLE
1. Shyam Bahadur Waiter at the Girish Bar who first saw the
Victim (deceased) in an injured condition
2. Kiranbhai Patel Head Constable
3. Dharmendrabhai Panch Witness to the spot of the incident
Bhandari (Hostile)
4. Yogendra Kanojia Panch Witness to the search and seizure of
the Appellant on 06.07.2013
5. Dr. Sudarshan Thakur Medical Officer at Govt. Hospital, Marward
who was present at the time of recording
Dying Declaration on 22.05.2013
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6. Dr. Harshulash Medical Officer at J.J. Hospital, Mumbai who
Panshiwaikar conducted the post-mortem on 04.06.2013
7. Dr. Hetav Sadadiwal Medical Officer who collected the blood
samples of the Appellant
8. Devendra Patel Panch Witness to the spot of the incident
(Hostile)
9. Dhiren Laraya Nodal Officer, Vodafone, who produced
CDRs of numbers 9978556508 and
7874924397
10. Kailesh Chaudhary Photographer of the spot of incident
11. PSI Suresh Shah Investigating Officer (I.O.)
3. Upon completion of the prosecution evidence, the statement of the
Appellant was recorded under Section 313 Cr.P.C. The case of the Appellant was
that of total denial and false implication. The Appellant in his statement recorded
under section 313 Cr.P.C. stated that the Police impleaded him by calling him to
the police station and one other person who was already present in the police
station was released and a false case was registered against him. However, the
Appellant neither led any defence evidence to substantiate his claims, nor did he
examine himself on oath.
4. After hearing the arguments adduced by the prosecution as well as the
defence and after going through all the evidence on record, the Sessions Judge,
Daman vide judgment and order dated 24.05.2017, was pleased to convict the
Appellant for the offence punishable under Section 302 of the IPC and was
sentenced to undergo R.I. for Life and to pay a fine of Rs.500/- and in default, to
suffer R.I. for 15 days.
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5. Being aggrieved by the judgment and order of conviction dated
24.05.2017, in Sessions Case No. 27/2013, the Appellant has approached this
Court by way of the present Appeal.
6. Heard Learned Counsel Adv. Nafeesa Khan for the Appellant, Ld. APP Adv.
Amit Munde for the Respondent No. 1- State and Ld. Counsel Mr. Ashwin Thool
for Respondent No. 2- Union Territory.
7. The Ld. Counsel for the Appellant submitted that the prosecution has failed
to establish that the statement given by the deceased assumes the validity of a
dying declaration within the four corners of law. It was argued that the said
statement was recorded on 22.05.2013 at Govt. Marwar Hospital in Daman,
when the victim was in a semi-conscious state and therefore it was highly
improbable that the deceased could have narrated the facts in the dying
declaration as is claimed by the prosecution witnesses. Moreover, the
endorsement of the doctor, to the effect that the injured was fit to give a
statement, is absent. Further, it was also argued that the dying declaration was
not recorded before a Magistrate. Therefore, it was submitted that the dying
declaration cannot be regarded as a reliable and trustworthy piece of evidence. It
was further argued that the victim died after a period of 15 days from the date of
incident i.e on 04.06.2013 at J.J. Hospital in Mumbai and therefore no causal
connection or nexus can be attributed between the dying declaration and the
eventual death of the injured victim at such a later date. It was submitted by the
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Ld. Counsel for the Appellant that the post-mortem recorded 59 injuries as
opposed to only 15 injuries and except 3 injuries, all the injuries were simple in
nature, which were noted at Govt. Marwar Hospital. It was argued that the rest of
the injuries must have appeared subsequently and that no explanation has been
provided for the same. It was also argued by the Ld. Counsel for the Appellant
that the death of the deceased can be attributed to complications caused by lack
of proper treatment. The recovery of the weapon of assault i.e. the knife and
other articles has been contested by the Ld. Counsel for the Appellant as the
panch witness for the spot panchnama has turned hostile.
8. The Ld. Counsel for the Appellant has further argued that there is no
cogent evidence showing that the Appellant and the deceased were seen together
at the relevant time. Thereafter, the Ld. Counsel for the Appellant questioned the
non-production of the supplementary statement allegedly recorded by the police
in Marathi on 26.05.2017 at J.J. Hospital, Mumbai. It was also argued by the Ld.
Counsel for the Appellant that phone numbers of both, the deceased as well as
the Appellant were not registered in their own names, they were registered but,
in the name of certain unknown persons and further the prosecution failed to
establish how the said phones were connected to each of them. Thus, the Ld.
Counsel for the Appellant argued that the evidence on record is not cogent and it
does not inspire confidence and therefore the Appellant deserves to be acquitted.
9. The Ld. Counsel for the Appellant relied upon Irfan @ Naka v. The State of
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Uttar Pradesh1.
10. Per contra, the Ld. APP submitted that the Sessions Court rightly convicted
the Appellant. The Ld. APP submitted that the deceased made three dying
declarations which are consistent. It was pointed out that the statements made
before P.W. 1- the waiter, P.W. 2- the Head Constable and before P.W. 11- the
I.O. in the hospital are all consistent. It was submitted that there are no material
inconsistencies in any of the statements and the same were made voluntarily. As
regards the absence of a separate medical certificate, it was contended by the Ld.
APP that no such requirement arose at that stage. It was submitted that during
his statement under Section 313 Cr.P.C., the Appellant admitted that the mobile
phone was recovered from him. As regards the discrepancy in injuries, the Ld.
APP submitted that the admission report was prepared at a preliminary stage and
only major injuries were noted therein. The post-mortem report, however,
recorded all external and internal injuries, including abrasions, and therefore the
difference in the number of injuries stands satisfactorily explained. It was argued
by the Ld. APP that during the physical search of the Appellant, one Samsung-
make mobile handset along with a sim card was recovered from him, which
further lends corroboration to the mobile number given by the deceased to P.W.
11. The Ld. APP urged that the prosecution has proved its case beyond reasonable
doubt and therefore the conviction be maintained.
11. The Ld. APP for the Respondent-State relied upon the following judgments
1 2023 INSC 758
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to buttress their arguments:
1) Kans Raj v. State of Punjab and Others2
2) Tehal Singh and Others v. State of Punjab3
3) State of Haryana v. Mange Ram and Others4
4) Neeraj Kumar alias Neeraj Yadav vs. State of U.P. and Others5
5) Sundar alias Sundarrajan v. State by Inspector of Police6
6) State of Uttar Pradesh v. Mahipal7
7) State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru8
12. Although there is no eye witness to the actual incident, the entire case
hinges on the dying declaration made by the deceased to several witnesses.
Before adverting to the analysis of the evidence on record, this Court finds it
pertinent to refer to the judgment of the Hon’ble Apex Court in the case of
Laxman v. State of Maharashtra, 20029, wherein it was held as under:
“3. The juristic theory regarding acceptability of a dying declaration is that such
declaration is made in extremity, when the party is at the point of death and when
every hope of this world is gone, when every motive to falsehood is silenced, and
the man is induced by the most powerful consideration to speak only the truth.
Notwithstanding the same, great caution must be exercised in considering the
weight to be given to this species of evidence on account of the existence of many
circumstances which may affect their truth. The situation in which a man is on
death bed is so solemn and serene, is the reason in law to accept the veracity of his
statement. It is for this reason the requirements of oath and cross-examination are
dispensed with. Since the accused has no power of cross-examination, the court
insist that the dying declaration should be of such a nature as to inspire full
confidence of the court in its truthfulness and correctness. The court, however
has to always be on guard to see that the statement of the deceased was not as a
result of either tutoring or prompting or a product of imagination. The court also
must further decide that the deceased was in a fit state of mind and had the
opportunity to observe and identify the assailant. Normally, therefore, the court in
2 (2000) 5 SCC 207
3 1980 (Supp) SCC 400
4 (2003) 1 SCC 637
5 2025 SCC OnLine Sc 2639
6 (2024) 12 SCC 764
7 (2018) 14 SCC 111
8 (2005) 11 SCC 600
9 (2002) 6 SCC 710
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order to satisfy whether the deceased was in a fit mental condition to make the
dying declaration look up to the medical opinion. But where the eyewitnesses
state that the deceased was in a fit and conscious state to make the declaration, the
medical opinion will not prevail, nor can it be said that since there is no
certification of the doctor as to the fitness of the mind of the declarant, the dying
declaration is not acceptable. A dying declaration can be oral or in writing and in
any adequate method of communication whether by words or by signs or
otherwise will suffice provided the indication is positive and definite. In most
cases, however, such statements are made orally before death ensues and is
reduced to writing by someone like a magistrate or a doctor or a police officer.
When it is recorded, no oath is necessary nor is the presence of a magistrate is
absolutely necessary, although to assure authenticity it is usual to call a
magistrate, if available for recording the statement of a man about to die. There is
no requirement of law that a dying declaration must necessarily be made to a
magistrate and when such statement is recorded by a magistrate there is no
specified statutory form for such recording. Consequently, what evidential value
or weight has to be attached to such statement necessarily depends on the facts
and circumstances of each particular case. What is essentially required is that the
person who records a dying declaration must be satisfied that the deceased was in
a fit state of mind. Where it is proved by the testimony of the Magistrate that the
declarant was fit to make the statement even without examination by the doctor
the declaration can be acted upon provided the court ultimately holds the same to
voluntary and truthful. A certification by the doctor is essentially a rule of caution
and therefore the voluntary and truthful nature of the declaration can be
established otherwise.”
13. This Court finds it necessary to delve into the dying declarations- both oral
and written, which forms the edifice of the prosecution case. Admittedly, as there
is no eye witness in the case, the evidentiary value of dying declaration gains
primary importance. However, before proceeding to weigh the dying declarations
relied upon by the prosecution, it would be appropriate to first record a finding as
to the nature of the death of the deceased.
14. To ascertain the nature of the death of the deceased, reference must be
made to the medical evidence and post-mortem report on record.
A] HOMICIDAL DEATH
15. P.W. 5- Dr. Sudarshan Thakur is the doctor who treated the deceased at
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Government Hospital, Marward. He deposed that on 22.05.2013, he was a
Medical Officer at Government Hospital, Daman, and on that day, the police had
brought one person by name Hasmuddin with the history of assault by somebody.
He deposed that at that time, Hasmuddin was semi-conscious. He further noted
the external injuries found on examination.
“(i) Incised wound having 6 x 5 x 0.5 cm. on the right side of the upper
chest laterally.
(ii) Incised wound having 5 x o.5 x 0.5 cm. on the right side of the pelvis
laterally.
(iii) Incised wound measuring 3 x 0.5 cm x 0.5 cm. on the left side of upper
chest.
(iv) Incised wound measuring 4 x 0.5 cm x 0.5 cm on neck.
(v) Incised wound measuring 4 x 0.5 x 0.5 cm on the neck.
(vi) Incised wound measuring 4 x 1 x0.5 cm. on the left side of upper chest
horizontally.
(vii) Incised wound measuring 4 x 1 x 0.5cm. on the left side of shoulder.
(viii) Incised wound measuring 2 cm 0.5 x 0.5 cm. On the left arm
horizontally.
(ix) Incised wound measuring 3 cm 0.5 cm 0.5 cm. On the right arm.
(x) Abrasion measuring 3 cm x 2 cm. on left arm.
(xi) Incised stab wound measuring 3 x 0.5 cm x0.5 cm. on back side laterally,
as well as another incised wound measuring 4 x 0.5 x 0.5 cm. on back side of
body laterally.
(xii) Incised wound measuring 4 x 0.5 x 0.5 cm. on the upper chest left side.
(xiii) Incised wound measuring 2 cm 0.5 x 0.5 cm on the right hand.
(xiv)Incised stab wound 4 cm x 2 cm. going straight inside on right side of
abdomen intestine blue pretending.
(xv) Incised wound measuring 2 cm x .5 x .5 on the right side of eyebrow. ”
16. P.W. 5 further deposed that the injuries were possible by hard and sharp
weapon. He also deposed that the injuries on upper chest and abdomen were
grievous in nature. He further deposed that on 22.05.2013, police came to the
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hospital and recorded the statement of the patient in his presence and that the
patient was semi-conscious, but was able to give his statement. He deposed that
he put his endorsement on the statement given by the patient( Exhibit 23). He
deposed that on 25.05.2013, the police had given him a letter seeking permission
to record the further statement of the injured and to collect the blood sample. He
further deposed that he collected the blood sample of the injured and sent it to
the Moti Daman Police Station vide letter dated 29.05.2013. He further deposed
that he was shown the knife (Article 4) and further deposed that the injuries
found on the person of the injured may be possible by this knife. In the cross-
examination, it was tried to be suggested that the injuries were possible if
someone falls on a broken glass bottle or on tin sheet or if someone falls from
height and rolls down or if someone falls on a sharp cutting instrument. It was
also tried to be brought on record that after 25.05.2013, the patient was referred
to another hospital as his condition was deteriorating. In the cross-examination,
this witness categorically admitted that within (during) those four days, the
patient was able to talk. Apart from this, there is nothing significant that has been
brought on record to discredit the credibility of this witness.
17. P.W. 6 is the Medical Officer at J.J. Hospital, Mumbai who examined the
deceased and conducted his post-mortem. He deposed that a patient namely,
Ashruddin Sharafuddin Sheikh was admitted in J.J. Hospital on 26.05.2013 after
being referred from Marward Hospital, Daman. He deposed that the victim died
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during treatment on 04.06.2013 at around 7 p.m. and that the body was sent for
post-mortem. He further deposed that the cause of the death was septicemia with
perforative peritonitis as a result of the complications caused by the incised stab
injuries and that the same was unnatural. P.W. 6 deposed that 59 injuries were
found on the body of the deceased as per Column No. 17. As per Column No. 19,
another 5 injuries were also found. He also categorically deposed that all the
injuries were ante-mortem. He also deposed that the “stab and incised injuries
were serious type injuries and those were sufficient to cause the death in the
ordinary course of nature.” He further deposed that the injuries might have been
possible by sharp and pointed weapons like knife, scissors, etc. P.W. 6 upon being
shown the weapon that is the knife (Article 4), stated that the injuries noticed by
him during the post-mortem might have been possible by such a weapon. It has
come in the cross-examination of P.W. 6 that the residue found in the stomach
i.e. the yellow fluid was not sent to the forensic laboratory. He further stated that
the same was not done as it had no significance. P.W. 6, in his cross-examination,
had stated that if proper treatment was not provided particularly in this case,
septicemia may be caused. Lastly, upon being asked in his cross-examination,
whether the deceased died due to the injuries and whether septicemia was
caused due to the injury to which this witness replied in the affirmative.
18. The evidence of P.W. 5 and P.W. 6, read together, establishes the case of
the prosecution on the circumstance of the nature of death. P.W. 5 found the
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deceased bearing multiple incised and stab injuries, caused by a hard and sharp
weapon, with the injuries on the chest and abdomen being grievous in nature.
P.W. 6, upon examination found the injuries to be of a serious nature, sufficient
in the ordinary course of nature to cause death. It would be pertinent to note that
the testimony of these witnesses have not been shaken on this point in the cross-
examination. No suggestion was put to either of them that the death was natural,
self-inflicted, or owed to any cause independent of the assault. Even though PW 5
has expressed, when a suggestion was put, that injuries were possible if someone
falls on a broken glass bottle or on a tin sheet or if someone falls from height and
rolls down or if someone falls on a sharp cutting instrument, we are of the
opinion that the injuries are caused by knife and as also opined by PW 6 that the
injuries noticed by him during the post-mortem might have been possible by knife
shown to him. We accordingly hold that there can be no doubt that the death of
the deceased was homicidal in nature.
19. It was urged by the Ld. Counsel for the Appellant that the death of the
deceased cannot be attributed to the injuries said to have been inflicted upon
him, inasmuch as the deceased did not succumb immediately, but after a
considerable period and passed away only on 04.06.2013, on account of
septicemia with perforative peritonitis. It was therefore submitted that no nexus
could be established between the inflicted injuries and the eventual death, and
that in the absence of such a nexus, the case would not fall within the purview of
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culpable homicide.
20. It is now a settled position of law that where death occurs after an interval
of time on account of septicemia or other complications supervening upon
injuries which were themselves fatal, or sufficient in the ordinary course of nature
to cause death, the person responsible for inflicting those injuries does not stand
absolved merely by reason of the passage of time. In this regard, we may draw
valuable guidance from the judgment of the Hon'ble Supreme Court in the case of
Maniklal Sahu v. State of Chhattisgarh10 which held as under:
“69. We may highlight few broad principles that the courts must keep in mind.
a. If it is proved that the injury was fatal and the intention was to cause death,
though the death occurred after several days of septicaemia or other
complications having supervened, yet it is undoubtedly a murder as it falls
within the first limb of Section 300 of the IPC.
b. If it is proved that the injuries by themselves were sufficient to cause death
in the ordinary course of nature, and if it is established that those injuries were
the intended injuries, though the death might have occurred after septicaemia
or other complications had supervened, yet the act of the accused would
squarely fall under the third limb of Section 300 of the IPC and the accused is
therefore liable to be punished under Section 302 of the IPC.
c. If it is proved that the injuries were imminently dangerous to life, though
the death had occurred after septicaemia or other complications had
supervened, yet the act of the accused would squarely fall under the fourth
limb of Section 300 of the IPC, provided, the other requirements like
knowledge on the part of the accused, etc. are satisfied and so the accused
would be liable to be punished under Section 302 of the IPC. Here also, the
primary cause of the death is the injuries and septicaemia.
d. In judging whether the injuries inflicted were sufficient in the ordinary
course of nature to cause death, the possibility that skilful and efficient
medical treatment might prevent the fatal result is wholly irrelevant.
e. If the supervening causes are attributable to the injuries caused, then the
person inflicting the injuries is liable for causing death, even if death was not
the direct result of the injuries.
10 2025 SCC OnLine SC 1960
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f. Broadly speaking, the courts would have to undertake the exercise to
distinguish between two types of cases; first, where the intervening cause of
death, like peritonitis, is only a remote and a rather improbable consequence
of the injury; then it can be said that the injury is one which may, in particular
circumstances, result in death, but which may not in ordinary course of nature
be likely to lead to it. Secondly, where the complication which is the
intervening cause of death is itself a practically inevitable sequence to the
injury. In that event, the probability is very high indeed, amounting to
practical certainty i.e., death is a result in due course of natural events. A deep
abdominal thrust with a knife followed by injury to the internal organs is
practically certain to result in acute peritonitis causing death. It is clearly a
case of murder under Section 302 and not merely of culpable homicide.
g. Even when the medical evidence does not say that any one of the injuries on
the body of the deceased was sufficient to cause death in the ordinary course
of nature, yet it is open to the Court to look into the nature of the injuries
found on the body of the deceased and infer from them that the assailants
intended to cause death of the deceased. If none of the injuries alone were
sufficient in the ordinary course of nature to cause the death of the deceased,
cumulatively, they may be sufficient in the ordinary course of nature to cause
his death.
h. What the courts must see is whether the injuries were sufficient in the
ordinary course of nature to cause death, or to cause such bodily injuries as the
accused knew to be likely to cause death although death was ultimately due to
supervention of some other cause. An intervening cause or complication is by
itself not of such significance. What is significant is whether death was only a
remote possibility, or is one which would have occurred in due course.
i. To sum it up, where death is delayed due to later complications or
developments, the courts should consider the nature of the injury,
complications or the attending circumstances. If the complications or
developments are the natural, or probable, or necessary consequence of the
injury, and if it is reasonably contemplated as its result, the injury could be
said to have caused death. If on the other hand, the chain of consequences is
broken, or if there is unexpected complication causing new mischief, the
relation of cause and effect is not established, or the causal connection is too
remote then the injury cannot be said to have caused death. If the original
injury itself is of a fatal nature, it makes no difference that death is actually
caused by a complication naturally flowing from the injury and not the injury
itself, since causal connection is proximate.”
21. Applying this principle to the facts before us, we find that the deceased
sustained multiple grievous injuries on his upper chest and abdomen. P.W. 5,
who first examined the deceased, deposed that the injuries on the upper chest
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and abdomen were grievous in nature and were possible by a hard and sharp
weapon. P.W. 6 who conducted the post-mortem, deposed that the stab and
incised injuries were of a serious nature and were sufficient in the ordinary
course of nature, to cause death. In his cross-examination, this witness also
deposed that the septicemia which ultimately claimed the life of the deceased was
a direct result of the complications following these very injuries. P.W. 6
categorically mentions in the post-mortem report which is exhibited as Exhibit 29
that, the probable cause of death is attributable to “ Septicemia with perforative
peritonitis as a result of complications following incised stab injuries
(Unnatural)”. There is nothing on record which suggests the presence of any
independent or intervening cause, nor did the defence put any such suggestion to
either of the witnesses in the cross-examination. In these circumstances, we hold
that the interval before the deceased succumbed to his injuries does not, by itself,
detract from the homicidal nature of his death.
22. It was further contended by the Ld. Counsel for the Appellant that the
number of injuries found on the person of the deceased shows a marked variance.
It was submitted that P.W. 5 examined the deceased at the time of his admission
and noted only fifteen(15) external injuries, however P.W. 6, who conducted the
post-mortem after his death at J.J. Hospital, Mumbai, recorded as many as fifty-
nine(59) injuries. Hence, it was thereby urged by the Ld. Counsel for the
Appellant that such a stark escalation in the number of injuries casts serious
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doubt on the veracity of the case of the prosecution. We find that this very
contention was considered by the Sessions Court in paragraph 46 of the
impugned judgment by observing that that there was no evidence to show that
the deceased was assaulted at any point during the period of his treatment, from
the date of his admission at the Government Hospital, Daman, until his death at
J.J. Hospital, Mumbai. It appears that the injuries which were noted at the time
when the injured was admitted to the Government Hospital Marward, Daman,
were at the preliminary stage when the injured was in an imminent need of the
treatment and therefore possibility cannot be ruled out that only prominent
injuries were noted. No doubt it raises a suspicion, however in the absence of any
material brought on record to establish anything to the contrary, the said
argument of the defence pales into insignificance.
B] DYING DECLARATIONS :
23. Since this case hinges on the dying declaration it will be pertinent to
carefully analyse the multiple dying declarations in order to find out whether the
dying declarations inspire confidence and are not an outcome of any tutoring.
24. P.W. 1 Shyam Bahadur deposed that he was working as a waiter at Girish
Bar, Kachigam. He further deposed that on 21st May, 2013, his working hours
were 8:00 a.m. to 2:00 p.m. and 5:00 p.m. to 11:00 p.m. He further deposed that
at around 7:00 a.m., he saw one person lying in the land of Mohanbhai, and
therefore he woke up Kamal Sharma, who in turn woke up Vishnu Bhandari. He
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has further deposed that they went near that person and saw that he had no
clothes and had injuries on his neck, hands, and upper portion of the body, and
those injuries were bleeding. He further deposed that Vishnu asked that person as
to what had happened to him, to which he told that he came with his friend Tahir
from Surat and they drank. He further submitted that he also told that Tahir
asked him to lift the bag which he refused, hence he was assaulted with a knife.
He further deposed that Vishnu told this to Seth who then called the police and
the police came and took him. In the cross-examination, it has come by way of
omission that this witness has stated while giving his statement that the injured
had injuries on his neck, hands, and upper part, and had not worn upper wears.
Apart from the above omission, there is nothing to disbelieve the said witness, or
nothing has been elicited in the cross-examination. There is no cross-examination
on the core issue about what was narrated to Vishnu in the presence of P.W. 1
about Tahir assaulting the deceased. Apart from the suggestion that P.W. 1 was
not present when the deceased was narrating the incident to Vishnu, which has
been denied, the cross examination does not in any manner dislodge the evidence
of P.W. 1.
25. P.W. 2 Kiranbhai Govandbhai Patel, Head Constable, Coastal Police
Station, deposed that on 22nd May, 2013 at 7:10 a.m., he received a phone call
from one Vijaybhai in the outpost that one person was lying in injured condition
in the building situated in the compound of his land. He further deposed that he,
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along with Home Guard driver Praful Patel, went there and saw one person lying
on the corrugated box and that he had injuries on his neck, chest, hands, as well
as on the stomach and therefore he called the ambulance on 108. He further
deposed that he asked his name, to which he said that his name was Asharuddin
Shaffuddin Shaikh. He further deposed that he asked Asharuddin Shaikh as to
who assaulted him, to which he told that Tahir Pathan assaulted him with a big
knife. He further deposed that thereafter he informed the incident to PSI Mr. S.M.
Shah and Head Constable Kishan Halpati and asked them to reach Marwad
Hospital, Nani Daman. He further deposed that the injured Asharuddin Shaikh
told him that he was from UP and three days ago he had come to Surat which
was the place of the accused and he was selling fruits in Surat. He further
deposed that Asharuddin told him that on 21st May, 2013, he had been to Daman
with the accused for a tour and both of them had consumed liquor at Girish Bar.
He further deposed that Asharuddin told him that Tahir had brought one bag and
had purchased wine to take to Surat and after consuming liquor, both of them
came out of Girish Bar and sat under an almond tree in the open land near the
bar. He further told that they were ready to leave at 2 o'clock and Tahir asked
him to lift that bag, to which he denied and that Tahir took a big knife from the
bag and assaulted him on his neck. He further told that when he started running,
Tahir assaulted him on his neck, hands, and chest, and when he fell down Tahir
assaulted him on his stomach and Tahir fled away from there and thereafter he
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came into the abandoned building. In the cross-examination, the said witness has
admitted that except the victim, no other person had given him the information
about the incident.
26. In the cross-examination, P.W. 2 Kiranbhai Patel was asked whether he felt
it necessary to record the statement of the victim in the hospital, to which he
replied that as his senior officer had been to the hospital, hence he did not record
his statement. Further, in the cross-examination, much emphasis was on the point
that after receiving the information, whether the superiors were informed or
whether the incident was noted down in the station diary or the pocketbook.
Beyond this, there is nothing much to discredit the witness on the actual
narration about the assault given to this witness by the deceased. There is no
evidence brought on record to discredit the testimony of this witness.
27. P.W. 11 Suresh Maganlal Shah, PSI, Nani Daman Police Station, deposed
that in the month of May, 2013, he was posted at Kachigam Outpost as In-charge.
He further deposed that on 22/5/2013 at about 7:30 a.m., he received a phone
call from Police Constable Shri Kiran Patel that, in the open compound land of
Girish Bar at Kachigam border, one person was lying injured. He deposed that he
asked him to go to the spot with a PCR vehicle and make an arrangement to take
him (the injured) to Marwad Hospital. He further deposed that he sent a message
to Head Constable Kishan Halpati calling him to Marwad Hospital and also told
him that he was also reaching there. He further deposed that they both reached
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Marwad Hospital and in the meantime, one injured was brought to Marwad
Hospital in an ambulance by Police Constable Kiran Patel. He further deposed
that he made inquiry with the said injured person, who told his name as
Husnuddin Shaikh. He further deposed that he issued a request letter to the
Medical Officer for providing him treatment. He further deposed that while he
was under treatment, he was in a conscious state of mind and was talking. He
further deposed that the deceased told him that he and his room partner, Tahir
Khan Pathan, came to Kachigam on the 21st day in the evening and they took
wine from that bar, drank and took food in the open compound of that hotel. He
further told that at night at 2 o'clock they were prepared to go to Surat and Tahir
Khan Pathan asked him to lift one bag and go, which he had denied and that bag
was containing wine. He further told that they then had an altercation and the
accused assaulted him with a knife-like weapon on his throat, chest, and other
parts. He further told that the accused ran away leaving him there and after
gaining sensation, he got up and went into the building in the said compound. He
further told that in the morning a few waiters came to him and he told them that
Tahir Khan assaulted him. He further deposed that he had recorded his statement
as per his narration in the presence of the doctor. During deposition, he was
shown the statement of the deceased. He identified the signature and thumb
impression of the deceased as well as the endorsement of the doctor. He deposed
that the contents of the statement of the deceased were true and correct, and it
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also bears his signature. He further deposed that he lodged a report against the
accused with Coastal Police Station and a Crime bearing No. 20 of 2013 was
registered against the accused.
28. In the cross-examination, the said witness denied the suggestion put to him
that the injured was not fully conscious at that time. He admitted that he had
seen the injuries on his person and that he took the statement of the deceased at
about 8:15 a.m. He also agreed that the doctor had put his endorsement after
recording the statement. He further stated in the cross-examination that the
recording of the statement and his medical treatment were simultaneously going
on. He also categorically admitted that he did not feel that the deceased was
giving the statement under the influence of alcohol. Further in the cross-
examination, he was also asked whether he felt it necessary to get the dying
declaration recorded by the Magistrate, to which he has deposed that he did not
feel it necessary. Further in the cross-examination, he once again admitted that
during the course of recording the report, the complainant was fully conscious;
however, he also stated that he did not try to obtain a certificate from the doctor
about his full consciousness. He further stated in the cross-examination that since
22.05.2013 to 26.05.2013, when the patient was hospitalized, he visited thrice;
however, he had not recorded the statement of the doctor who operated on the
deceased. He further stated in the cross-examination that he did not obtain a
certificate regarding the condition of the injured for the period 22/5/2013 till
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26/5/2013 from the doctor. He further admitted that on 25/5/2013, he recorded
the supplementary statement of the deceased; however, he did not obtain a
certificate from the doctor with regard to his consciousness. Beyond this, there is
not much cross-examination on the actual narration given by the deceased to this
witness.
29. Although in the cross-examination of P.W. 1, the narration that the injured
had injuries on his neck, hands, and upper part, and had not worn upper wears
has come by way of omission, P.W. 2 and P.W. 11 have categorically deposed
about the same and the said depositions have not be demolished in the cross
examination of P.W. 2 and P.W. 11.
30. Having set out the oral dying declarations made by the deceased before
P.W. 1 and P.W. 2, and the written dying declaration recorded by P.W. 11, in
extenso, it would now be apposite to test these declarations on the touchstone of
the principles governing their acceptance.
31. In this regard, it would be apposite to refer to the judgment of the Hon'ble
Supreme Court in Irfan @ Naka v. State of Uttar Pradesh 11 wherein it has been
held as under:
62. There is no hard and fast rule for determining when a dying declaration
should be accepted; the duty of the Court is to decide this question in the facts
and surrounding circumstances of the case and be fully convinced of the
truthfulness of the same. Certain factors below reproduced can be considered to
determine the same, however, they will only affect the weight of the dying
declaration and not its admissibility: -
(i) Whether the person making the statement was in expectation of death?
11 2023 SCC OnLine SC 1060
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(ii) Whether the dying declaration was made at the earliest opportunity? “Rule
of First Opportunity”
(iii) Whether there is any reasonable suspicion to believe the dying declaration
was put in the mouth of the dying person?
(iv) Whether the dying declaration was a product of prompting, tutoring or
leading at the instance of police or any interested party?
(v) Whether the statement was not recorded properly?
(vi) Whether, the dying declarant had opportunity to clearly observe the
incident?
(vii) Whether, the dying declaration has been consistent throughout?
(viii) Whether, the dying declaration in itself is a manifestation /fiction of the
dying person’s imagination of what he thinks transpired?
(ix) Whether, the dying declaration was itself voluntary?
(x) In case of multiple dying declarations, whether, the first one inspires truth
and consistent with the other dying declaration?
(xi) Whether, as per the injuries, it would have been impossible for the deceased
to make a dying declaration ?
32. Upon a perusal of the oral dying declarations made by the deceased orally
to P.W. 1 and P.W. 2 and the written dying declaration made to P.W. 11, we find
that they are consistent and cogent. The deceased was able to describe the
incident in explicit detail and continued to mention ‘Tahir’ as being the individual
who caused him the stab injuries. The circumstances leading up to the injury and
the manner in which the injury was caused to him, both were described by the
deceased consistently and there is no material discrepancy in his stance for us to
conclude that the said dying declarations are false or as a result of tutoring or
prompting or unworthy of credence.
33. Hence, on a conjoint reading of all the dying declarations on record, and
testing them against the guidelines enumerated in Irfan Naka (supra), we
accordingly hold the dying declarations to be truthful, voluntary and worthy of
credence.
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34. The Ld. Counsel for the Appellant has raised doubts over the validity of the
dying declaration. It was argued that the deceased did not succumb to his injuries
immediately, and that his belated death must be taken into account. It was
therefore submitted that the statement recorded by P.W. 11 immediately after the
incident cannot be treated as a valid dying declaration, since the deceased was
not under the shadow of death or in expectation thereof when he made it. In our
considered view, a plain reading of Section 32 of the Indian Evidence Act makes
it abundantly clear that the provision takes into account that the statement of an
injured person, not under the expectation of death, if he dies subsequent to such
statement being recorded, then there is no bar in treating such a statement as a
dying declaration, as long as the cause of death can be attributed to the same
cause. The Supreme Court in its judgment in the case of Neeraj Kumar @Neeraj
Yadav (supra) has further reinforced the fact that delay in death cannot result in
invalidation of the dying declaration, which was obtained at the time when the
deceased was not under the shadow of imminent death. It states as follows:
“16. Additionally, in our considered view, the High Court erred in holding that
these statements cannot be treated as dying declaration(s) merely because the
death of the deceased occurred after a substantial lapse of time from their
recordings. Such an approach is clearly untenable since the law does not
require that a declarant, at the time of making the statement, to be under the
shadow of death or the expectation that death is imminent. Here the time gap
between the incident and the death is less than 2 months. In any event, Section
32 of the Evidence Act, contains no such limitation. What is pertinent is that
the statement relates either to the cause of death or the circumstances leading
to it. [See: Rattan Singh v. State of H.P.21; Kulwant Singh v. State of Punjab 22;
and Amar Singh v. State of Rajasthan23]”
35. In this regard, the Ld. APP has relied on the judgment of the Hon'ble
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Supreme Court in Kans Raj v. State of Punjab and Others. 12 Upon a perusal of the
same, we find the same to be relevant as it reiterates that an expectation of
imminent death is not necessary for a statement to qualify as a dying declaration.
The relevant paragraph is reproduced hereunder:
“11. Section 32 of the Evidence Act is admittedly an exception to the general rule
of exclusion to the hearsay evidence and the statements of a person, written or
verbal, of relevant facts, after his death are admissible in evidence if they refer to
the cause of his death or to any circumstances of the transaction which resulted in
his death. To attract the provisions of Section 32, for the purposes of admissibility
of the statement of a deceased the prosecution is required to prove that the
statement was made by a person who is dead or who cannot be found or whose
attendance cannot be procured without any delay or expense or he is incapable of
giving evidence and that such statement had been made under any of the
circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section
32 does not require that the statement sought to be admitted in evidence should
have been made in imminent expectation of death. The words “as to any of the
circumstances of the transaction which resulted in his death” appearing in Section
32 must have some proximate relations to the actual occurrence. In other words
the statement of the deceased relating to the cause of death or the circumstances of
the transaction which resulted in his death must be sufficiently or closely
connected with the actual transaction. To make such statement as substantive
evidence, the person or the agency relying upon it is under a legal obligation to
prove the making of such statement as a fact. If it should be proved by examining
the person who heard the deceased making the statement…..”
36. Additionally, the Ld. APP has also relied on the judgments of the Hon’ble
Apex Court in the case of Tehal Singh and Otrs. v. State of Punjab (supra) State
of Haryana v. Mange Ram & Ors. (supra) which elaborates upon true meaning of
Section 32 of the Evidence Act as already stated above in Kans Raj (supra).
37. It was further urged by the Ld. Counsel for the Appellant that the dying
declaration cannot be said to be worthy of credence, as the deceased was in a
semi-conscious state at the relevant time, and no certificate or endorsement was
obtained from the doctor as to his fitness to make a statement. It was hence
12 (2000) 5 SCC 207
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submitted that in the absence of such an endorsement, coupled with the fact that
the deceased was in a semi-conscious condition, the statement recorded by P.W.
11 cannot safely be relied upon as a dying declaration. It was further contended
that the I.O. had ample time and opportunity to get the statement of the deceased
recorded by a Magistrate, but failed to do so, and that such a lapse diminishes the
evidentiary worth of the statement. In order to counter this argument, the
prosecution relied upon the judgment of the Hon'ble Supreme Court in Neeraj
Kumar (supra), which lays as under:
“We find these contentious bereft of any merit. We say so because it is a well-established
position of law that a statement made by a deceased person, as to the cause of his death or
to the circumstances of the transaction which resulted in his death, to a Police Officer
and recorded under Section 161 CrPC, shall be relevant and admissible under Section
32(1) of the Evidence Act, notwithstanding the express bar provided in Section 162
CrPC. Such a statement, upon the death of the declarant, assumes the character of a
dying declaration. It is also equally settled that a dying declaration need not necessarily be
recorded in the presence of the Magistrate, and that the lack of a doctor’s certification as
to the fitness of the declarant’s state of mind would not ipso facto render the dying
declaration unacceptable. This position has been recently reiterated by this Court in
Dharmendra Kumar v. State of M.P., wherein it was held:
“65. Section 161 CrPC empowers the police to examine orally any person
who is acquainted with the facts and circumstances of the case under
investigation. The police may reduce such statement into writing also.
Section 162(1) CrPC, nonetheless, mandates that no statement made by
any person to a police officer, if reduced to writing, be signed by the
person making it, nor shall such statement be used in evidence except to
contradict a witness in the manner provided by Section 145 of the
Evidence Act. However, sub-section (2) of Section 162CrPC carves out
an exception to sub- section (1) as it explicitly provides that nothing in
Section 162 shall be deemed to apply to any statement falling within the
ambit of clause (1) of Section 32 of the Evidence Act. In other words, a
statement made by a person who is dead, as to the cause of his death or to
the circumstances of the transaction which resulted in his death, to a
police officer and which has been recorded under Section 161 CrPC, shall
be relevant and admissible, notwithstanding the express bar against use of
such statement in evidence contained therein. In such eventuality, the
statement recorded under Section 161CrPC assumes the character of a
dying declaration. Since extraordinary credence has been given to such
dying declaration, the court ought to be extremely careful and cautious in
placing reliance thereupon.”
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38. Therefore, considering the law laid down by the Apex Court and in the
peculiar facts of the case, neither the absence of a certification by the doctor
regarding the fitness of the injured nor the omission to have the statement
recorded by a Magistrate would affect the evidentiary value of the dying
declaration recorded by P.W. 11, and hence the contentions urged on behalf of
the Appellant are dehors of any merits.
39. As regards the contention raised about the semi-conscious condition of the
deceased, we find it useful to refer to the Constitution Bench judgment of the
Hon'ble Supreme Court in Laxman v. State of Maharashtra (supra), wherein it
was held that:
“The court also must further decide that the deceased was in a fit state of mind
and had the opportunity to observe and identify the assailant. Normally,
therefore, the court in order to satisfy whether the deceased was in a fit mental
condition to make the dying declaration look up to the medical opinion. But
where the eyewitnesses state that the deceased was in a fit and conscious state
to make the declaration, the medical opinion will not prevail, nor can it be said
that since there is no certification of the doctor as to the fitness of the mind of
the declarant, the dying declaration is not acceptable.”
40. P.W. 11, who recorded the dying declaration, has himself deposed that the
deceased was conscious and talking at the time the statement was taken.
Therefore, applying the principles laid down in Laxman (supra) to the facts of the
present case, we find no merits in this submission of the Appellant.
41. Upon a perusal of the oral dying declarations made by the deceased, we
find that the cause of the said scuffle between ‘Tahir’ and the deceased has also
been consistently described by the deceased.
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C] IDENTITY OF THE APPELLANT :
42. It is well settled that conviction can rest on a dying declaration alone,
provided the same is found to be voluntary, truthful and free from tutoring and
indeed in the present case we have come to a conclusion that we find the Dying
Declarations to be voluntary, truthful and free from any tutoring. However in the
present case a suspicion is sought to be raised by the Ld. Counsel for the
Appellant as regards the very identity of the assailant named in the dying
declarations. It was submitted that in the dying declarations recorded, oral as
well as written, the deceased named his assailant as ‘Tahir’, ‘Tahir Kunnu Pathan’
or ‘Tahir Pathan’, whereas the Appellant has throughout identified and signed
himself as ‘Tahir Khan’. It was further submitted that in his statement under
Section 313 of the Cr.P.C., the Appellant has taken the plea that he was falsely
implicated by the police, and that he was called to the police station and arrested,
while another person already present therein was let off. It was thus urged by the
Ld. Counsel for the Appellant that even assuming for the sake of arguments the
dying declarations are held to be reliable, the prosecution has failed to establish
the elementary fact that the Appellant so convicted is the very person named by
the deceased as his assailant.
43. On this backdrop, it would now be relevant to examine whether the
evidence on record cogently establishes that the identity of the assailant, as it
emerges from the dying declarations, is one and the same, as that of the
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Appellant before us.
44. Upon going through the records, we do not find that the issue of identity
and the plea of false implication was raised at any point of time earlier or that
any foundation was laid during the evidence. It is only at the stage of recording
the statement under Section 313 of Cr.P.C that for the first time this issue was
raised while answering Question No. 81 wherein it is stated by the Appellant that
“Police impleaded me by calling, one other men was in police station . Police
released him and made a false case against.”
45. The Appellant, although has raised this issue, and which he is entitled to at
the appellate stage as well, does not in any manner support it by any cogent or
convincing material. No doubt the law on this aspect is no more r es integra that
the accused does not have to prove his case beyond reasonable doubt and can
rest his case on the preponderance of probability. However, merely making a bald
statement that he was falsely implicated is not enough as none of the allegations
about false implication or the doubt raised about his identity by the Appellant
could be established. Even at this stage, the Ld. counsel for the Appellant was not
in a position to point out any material on record which could suggest that the
Appellant was falsely implicated. Just because Appellant is referred to as Tahir’ by
P.W. 1, ‘Tahir Kunnu Pathan’ by P.W. 2 , ‘Tahir Pathan’ by P.W. 11 and he himself
referring as ‘Tahir Khan’ in itself is not sufficient to raise a doubt. At this stage it
will be advantageous to refer to the judgment of the Apex Court in the case of
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Munish Mubar v. The State of Haryana13.
“25. Moreso, it was the duty of the appellant to furnish some explanation in his
statement under Section 313 Cr.P.C., as under what circumstances his car had been
parked at the Delhi Airport and it remained there for 3 hours on the date of
occurrence. More so, the call records of his telephone make it evident that he was
present in the vicinity of the place of occurrence and under what circumstances
recovery of incriminating material had been made on his voluntary disclosure
statement. Merely making a bald statement that he was innocent and recoveries had
been planted and the call records were false and fabricated documents, is not
enough as none of the said allegations made by the appellant could be established.”
46. Thus, in wake of the law laid down by the Supreme Court we do not find
any substance in the contentions raised by the Appellant about the issue of
identity. Thus, we are of a considered view that this argument is nothing but an
afterthought, raised by the Appellant in his defence.
47. The Ld. Counsel for the Appellant further attempted to assail the case of
the prosecution by furthering that, the identity of the Appellant can also be said
to have been mistaken, in light of the arrest of the Appellant, which was wrongly
effected on the basis of the Call Detail Records (CDRs) and the IMEI numbers
found during the course of investigation. It was submitted that the entire chain
sought to be established by the prosecution, from the mobile number allegedly
furnished by the deceased to the eventual arrest of the Appellant, rests
prominently and substantially upon the CDRs and the IMEI details obtained
through the course of the investigation. It has been primarily contended that the
CDRs relied upon by the prosecution were obtained only on 02.09.2013, whereas
the Appellant had already been arrested on 06.07.2013.
13AIR 2013 Supreme Court 912
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48. We find no merit in the contention that, merely on the ground that the
CDRs were obtained after the arrest, the arrest is to be rendered unfounded. The
delay in obtaining the said records, cannot be said to vitiate or render the arrest
illegal or to hold that it is a case of mistaken identity, as the requisite information
could have been procured by the police in the usual course of their investigation,
with the formal additional reports thereof being obtained subsequently. In any
event , the police machinery cannot be expected to reveal the source of their
information or how the information was obtained, as investigation is the
prerogative of the police, so long as it is not tainted. In the present case there is
no cross-examination to that effect and no doubt is raised over the investigation
on the said aspect. Thus, in the facts and circumstances of the present case, the
said argument is untenable.
49. It was further submitted that the Mobile Phone No. 7874924397 was
registered in the name of Gyan Chandra Ram Ujagar (Exhibit 40) and the Mobile
Phone No. 9978556508 was registered in the name of Safdar Jamiluddin Siddiqui
(Exhibit 38), both of whose statements have not been recorded by the police.
Thus, it was argued that the mere production of CDRs does not, by itself,
establish the connection of Appellant with the said mobile numbers.
50. Thus, the issue that arises for consideration is whether the material relied
upon by the prosecution sufficiently establishes the connection between the
Appellant and the Mobile Phone Numbers/IMEI relied upon by the Investigating
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Officer and whether the delayed subsequent procurement of the CDRs materially
affects the version of the prosecution regarding the circumstances in which the
Appellant came to be arrested.
51. It would be apposite to first set out the array of numbers as they emerge
from the records:
ROLE NUMBER IMEI
Number provided by the deceased 7874924397 3517125040924240
Number traced by the police through the 9978556508 3517125040924240
IMEI of the old device
Number found in use upon arrest 9978556508 3517125040924247
52. As per the details given by the deceased, the Mobile Phone No.
7874924397 was the number belonging to the Appellant, and this number is
reflected against IMEI No. 3517125040924240 in the CDRs proved by P.W. 9.
Upon analysis of these very records, the police discovered that the same IMEI No.
i.e 3517125040924240, came to be subsequently associated with a new Mobile
Phone No. which was 9978556508. It was thereby concluded that the handset
itself remained the same, while only the Mobile Phone Number had changed. It
was on the strength of this discovery that the CDRs of the Mobile Phone No.
9978556508 were sought and obtained, and it was this very number that led the
police to the Appellant. Upon the arrest of the Appellant, the handset recovered
from his person was found to be in use with the very Mobile Phone Number thus
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traced as 9978556508, and bore the IMEI No. 3517125040924247. On a plain
comparison, therefore, the IMEI number first attributed to the Appellant i.e.
3517125040924240, and the IMEI number found on the handset recovered from
him upon arrest, 3517125040924247, are identical except for the last digit.
53. It was on this discrepancy that the Ld. Counsel for the Appellant contended
that variance in the final digit renders the two IMEI numbers as those of two
distinct devices and therefore, the same cannot be said to be linked to the
Appellant.
54. On this point, it would be pertinent to refer to the judgment of the Hon'ble
Supreme Court in Sundar alias Sundarrajan v. State by Inspector of Police
(supra), wherein the very question of variance in the last digit of an IMEI number
was adequately answered. It was held as under:
“23. Similarly, the contention based on the difference in the IMEI number
recorded in the seizure memo and the call detail records does not affect the
prosecution’s case for the following reason. The difference in the IMEI
number recorded in the seizure memo and the call detail record pertains to
the last digit of the 15-digit IMEI number. Every device has a unique IMEI
number identifying the brand owner in the model. The first 8 digits are the
Type Allocation Code (TAC) digits of which the initial 2 digits identify the
reporting body and the next 6 identify the brand owner and device model
allocated by the reporting body. The next 6 digits are the unique social
number assigned to individual devices by the manufacturer.
24. These 14 digits in the petitioner’s case match in both the seizure memo
and the call detail record. The last digit in the IMEI number is the “Luhn
check digit” based on a function of the other digits using an algorithm.
Technically, the last digit, which is the only digit that is different in the
seizure memo and the call detail record, can be calculated through the
algorithm on the basis of the first 14 digits which are the same in both the
documents. As the last digit of an IMEI number is a function of the first 14
digits, as long as the first 14 digits are a match it can only lead to one unique
device. Accordingly, it can be conclusively said that a difference in only the
last digit of the IMEI number cannot imply that it represents the IMEI
Vishal Parekar ….34
Cr.A.234-2018
number of a separate device. Therefore, the difference in the last digit of the
IMEI number can reasonably be assumed to be a typographical error and
does not raise a doubt in the prosecution’s case.”
55. In the peculiar facts of the present case as well, since the first fourteen
digits of the IMEI number recovered from the Appellant are identical to the first
fourteen digits of the IMEI number first attributed to him, the variance in the
final digit does not, on the reasoning as iterated in Sundar alias Sundarrajan
(supra), suggest two separate devices. We accordingly find that the chain of
connection stands established on each of its links.
56. It would additionally be important to note that the Mobile Phone number
given by the deceased as that of the Appellant was itself found reflected against
the very IMEI number in question. Though a new Mobile Phone number came to
be subsequently inserted into that handset, the fact that the handset itself
remained the same throughout is significant. The very foundation of the arrest
link, in our view, is the IMEI number as it traced back to the number originally
given by the deceased himself pointed turned to the Appellant. The prosecution
has relied upon the judgment of State (NCT of Delhi) v. Navjot Sandhu alias
Afsan Guru (supra) to substantiate the same.
57. This Court is also conscious of the judgment of the Hon’ble Apex Court in
the case of Rajesh v. State of M.P.14, which deals with the user of the sim card
and actual owner of the mobile phone not being examined to establish the link.
However in view of our findings with respect to the link having been cogently
14 (2023) 15 SCC 521
Vishal Parekar ….35
Cr.A.234-2018
established, non examination of the Safdar Jamiluddin Siddiqui in whose name
the mobile No. 9978556508 was registered and Gyan Chandra Ram Gujar in
whose name mobile No. 7874924397 was registered pales into insignificance.
58. Another argument raised by Ld. Counsel for the Appellant was that the
Supplementary Statement of the victim, which was recorded at J.J. Hospital by
PSI from J.J. Marg police station on 26.05.2013 was not brought on record. It
was contended that the contents of this statement are at variance with all the
previous dying declarations recorded by P.W. 1, P.W. 2 and P.W. 11. We are
afraid that we cannot look into any such statement, which is neither exhibited
nor brought on record as duly proved. At best, the weight that can be attributed
to such a statement is equivalent to a statement recorded under Section 161 of
the Cr.P.C., which is inadmissible in evidence.
59. We have also perused the evidence with respect to the FSL reports,
however the FSL reports with respect to the clothes of the deceased were
inconclusive and therefore the same aspect is not discussed in detail.
60. The Ld. Counsel for the Appellant has raised a contention/ground in his
memo, though not argued at the time of final hearing of the appeal, that the
Sessions Court had erred in treating the case as one based on dying declarations,
instead of considering it as a case founded on circumstantial evidence. Although
this Court agrees that there is no eyewitness in the present case, however in light
of the judgments referred to above and the principles laid down by the Hon’ble
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Cr.A.234-2018
Supreme Court, we find that the statements made by the victim concerning his
death and the circumstances leading thereto are worthy of credence and that can
be the sole basis for conviction. We further find that the statements are cogent,
consistent and have been made voluntarily and therefore satisfy the requirements
of a dying declaration. The prosecution has rightly founded its case upon the
three dying declarations made by the victim. Accordingly, we hold that the
Sessions Court was correct in considering the present case as one resting upon
the dying declarations of the deceased.
61. We are therefore of the opinion that the Appellant has been rightly
convicted by the Sessions Court, Daman and accordingly we uphold the
conviction of the Appellant.
Hence, the following order.
ORDER
1] Appeal stands dismissed.
2] All pending application(s), if any, also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
Vishal Parekar ….37
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