Bombay High Court
NAJIM SALIM KHANversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The court held that the prosecution proved the guilt of Accused No.1 beyond reasonable doubt, but failed to prove the participation of Accused Nos.2 and 3, leading to their acquittal.
Summary
The appellants Najim Salim Khan and Farhan Salim Khan were convicted of murder under Section 302 r/w Section 34 IPC and sentenced to life imprisonment. They appealed, arguing that the prosecution’s evidence – especially the oral dying declaration and eye‑witness testimony – was unreliable and that the injuries on the accused were not explained, raising reasonable doubt about their participation. The court examined the credibility of the dying declaration, the consistency of eye‑witness statements, and the applicability of Exceptions 2 and 4 to Section 300 IPC. It found that the prosecution proved the guilt of Accused No.1 beyond reasonable doubt but failed to establish the involvement of Accused Nos.2 and 3. Consequently, the appeal of Accused Nos.2 and 3 was allowed, resulting in their acquittal, while the appeal of Accused No.1 was dismissed, upholding his conviction.
Issues considered
- The reliability of the oral dying declaration and its consistency with eye‑witness testimony
- Whether the prosecution proved the participation of Accused Nos.2 and 3 beyond reasonable doubt
- Whether the act of Accused No.1 falls within Exception 2 or Exception 4 to Section 300 IPC, i.e., whether it constitutes murder or culpable homicide not amounting to murder
- The significance of unexplained injuries on Accused No.1 and the burden on the prosecution to explain them
- The applicability of Section 313 CrPC in assessing the accused’s defence
Legislation cited
- Code of Criminal Procedure, 1973 — s. 313
- Indian Penal Code, 1860 — s. 300, 302, 34
Subjects
- murder
- culpable homicide not amounting to murder
- oral dying declaration
- eye witness testimony
- Section 300 IPC
- Section 302 IPC
- Section 34 IPC
- Section 313 CrPC
- reasonable doubt
- private defence
- exception to murder
Judgment
Gokhale 1 of 43 901-apeal-691-692-719-23 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 691 OF 2023
Najim Salim Khan ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
CRIMINAL APPEAL NO. 692 OF 2023
Farhan Salim Khan ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
CRIMINAL APPEAL NO. 719 OF 2023
Mohammad Salim Nawab Khan ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 3636 OF 2025
IN
CRIMINAL APPEAL NO. 719 OF 2023
__________
Mr. Gaurav Bhawnani i/b. Khan Abdul Wahab for Appellant in
Appeal No.691 and 692 of 2023.
Mr. Vipul Dushing a/w. Sana R. Khan and Tanmay Kate for
Appellant in Appeal No.719/2023.
Ms. Kranti Hiwrale, APP for the State.
__________
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2026.02.03
11:35:51
+0530
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CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 23 JANUARY 2026
JUDGMENT: (PER SARANG V. KOTWAL, J.)
1. All these three appeals are decided by this common
Judgment and order, because they arise out of the same impugned
Judgment and order.
2. The Criminal Appeal No.719 of 2023 is filed by
Mohammad Salim Nawab Khan who was the original Accused
No.1. The Criminal Appeal No.691 of 2023 is filed by Najim Salim
Khan who was the original Accused No.2 and Criminal Appeal
No.692 of 2023 is filed by Farhan Salim Khan who was the original
Accused No.3. The Accused Nos.2 and 3 are the sons of the
original Accused No.1. For the sake of convenience, the Appellants
are referred to by their status before the trial Court.
3. The Appellants faced the trial before the Additional
Sessions Judge, Borivali Division, Dindosi, Mumbai, in Sessions
Case No.229 of 2018. All of them were convicted and sentenced
vide the Judgment and order dated 07.06.2023, for commission of
the offence punishable U/s.302 r/w. 34 of the I.P.C. They were
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sentenced to suffer rigorous imprisonment for life each and to pay
a fine of Rs.5000/- each and i.d. to suffer S.I. for one month each.
4. Heard Mr. Gaurav Bhawnani, learned counsel for the
Appellants in Criminal Appeal No.691 of 2023 and 692 of 2023,
Mr. Vipul Dushing, learned counsel for the Appellant in Criminal
Appeal No.719/2023 and Ms. Kranti Hiwrale, learned APP for the
State.
5. The prosecution case is that, the Accused No.1 and
Abdul Kayyum Sayyad (deceased in this case) were neighbors. The
Accused No.1 had extended some construction of his house, which,
according to the deceased, was unauthorized. He had made
complaints to the authorities. Unauthorized part of the structure
was demolished. On 16.04.2018, a survey was being conducted in
that area for their eligibility. In the meantime, the deceased had
left that area and had started residing elsewhere. He had given his
room on rent. On that day, at 2:30p.m. when the survey was going
on, the deceased came to his house in that area. He again
complained to the authorities about the unauthorized construction
made by the accused No.1. Because of this complaint, the Accused
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No.1 got angry. According to the prosecution case, he went inside
his house and brought a knife. Other two accused held the
deceased and the Accused No.1 inflicted blows on the abdomen of
the deceased. Initially, the prosecution case was that, the wife of
the Accused No.1 also instigated the other accused, but she was
not prosecuted. The deceased suffered serious injuries on his
abdomen. His intestine was protruded. A piece of his intestine fell
at the spot. In that condition he walked towards the police chowky.
On the way, he met Police Naik Sachin Sonmali who was on the
beat marshal duty. He put the injured Abdul in a rickshaw. After
some time, police Naik Sonmali saw a police van. With the help of
others, he put the severely injured Abdul in that police van and
took him to Trauma Care Center, Jogeshwari. It is the prosecution
case that, on the way, the injured Abdul described the incident to
P.N. Sonmali. According to the prosecution case, PW-5 Suresh
Jadhav who was knowing the injured had accompanied them to
the hospital. When they reached the hospital, there were other
police officers who also inquired with the injured and took his
version in writing. But before the injured Abdul could sign it, he
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was immediately taken for surgery.
6. Police Naik Sonmali’s statement was recorded. He then
went to the police station and gave his F.I.R, at Andheri police
station vide the C.R.No.212 of 2018. In the meantime, the Accused
No.1 on his own had gone to the police station with the murder
weapon. He was arrested and the murder weapon was seized. The
investigation was carried out. The statements of the witnesses
including the statements of the eye witnesses were recorded. The
spot panchanama was conducted. After the death of the deceased,
postmortem examination was conducted. The clothes of the
deceased were seized. The articles were sent for chemical analysis.
At the end of the investigation, the charge-sheet was filed and the
case was committed to the Court of Session.
7. During trial, the prosecution examined 13 witnesses,
including two eye witnesses PW-3 Mohammad Amin Shaikh and
PW-6 Hasrat Gullu Badshah Shaikh, two witnesses for the oral
dying declaration i.e. PW-1 P.N. Sachin Devidas Sonmali and PW-5
Suresh Jadhav, panchas for various panchanamas, the Medical
Officers and the Investigating Officers. Apart from this oral
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evidence, the C.A. report produced on record showed presence of
human blood on the knife and on the clothes of the Accused; but
the blood group was inconclusive.
8. The specific defence of the Accused No.1 was that, there
were number of cases between the deceased and himself. On the
day of the incident, there was BMC survey. The deceased was
telling the Survey Officers to demolish his house. When he
questioned the deceased, he was abused by the deceased. When he
tried to pacify the deceased, the deceased held his collar and
started assaulting him. When he tried to push away the deceased,
the deceased pulled out a knife from his waist. He tried to push the
deceased away to rescue himself. He started grappling. Both of
them fell on the floor and continued grappling. There was a knife
in the hands of the deceased. Due to the chaos while grappling, he
did not see what happened exactly. He got up and ran to the police
station to lodge the F.I.R. But he was made as an accused and the
police arrested him. This is the specific defence taken by the
Accused No.1 in his statement recorded U/s.313 of the Cr.P.C.
9. The defence of the other two accused was of total denial.
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They denied that, they were present at the spot of the incident.
According to them, they were falsely implicated at the behest of
the family members of the deceased.
10. The learned Judge disbelieved the defence of the
accused. He relied on the evidence of oral dying declaration and
the evidence of the eye witnesses. Based on this evidence, the
learned Judge convicted and sentenced all the Accused-Appellants,
as mentioned earlier.
11. The evidence of eye witnesses is an important piece of
evidence in this case. PW-3 Mohammad Amin Shaikh was the first
eye witness examined by the prosecution. He deposed that, he
used to reside in Hawaldar chawl. The Accused No.1 was residing
at Khairunisa chawl which was adjacent to Hawaldar chawl. PW-3
knew both, the deceased and the Accused No.1. The deceased’s
house was situated in Hawaldar chawl, but at the time of the
incident, the deceased was residing at Mira road and his house at
Hawaldar chawl was rented out by him. The deceased and the
Accused No.1 were on inimical terms because of the dispute
regarding construction of a room. The room constructed by the
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Accused No.1 was demolished. The incident occurred on
16.04.2018 between 2:00p.m. to 2:30p.m. A Government survey
was going on. Around 2:20p.m., PW-3 started going to Hawaldar
chawl for taking lunch. On the way, he met the wife of one Nazir
Bhai. The deceased came there. He also started talking with Nazir’s
wife. At that time, the Accused No.1 came there. He pushed the
deceased. PW-3 and Nazir’s wife stepped back. The deceased also
pushed the Accused No.1. PW-3 further deposed that the Accused
No.1 took out a knife from the right side of his waist and tried to
give a blow on the abdomen of the deceased. But the blow did not
touch the deceased. After that, the Accused No.1 pushed the
deceased, who fell down. The public gathered at the spot were
trying to stop the Accused No.1, but he did not listen to anybody.
He started moving the knife. He showed it to the public. Then he
stabbed the deceased with the knife on his abdomen causing
bleeding injury. Everybody started running away. The deceased
caught the knife and asked the Accused No.1 to leave him. At that
time, the deceased had caught the knife. But when the deceased
left the knife, the Accused No.1 dragged the knife into left right
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direction in the abdomen of the deceased from the penetrated
portion. PW-3 further deposed that the Accused Nos.2 and 3, as
well as, the public started running away. PW-3 himself ran away
and went to the office of Umar Khan. He made a phone call to
Umar Khan and informed him about the incident. Then he
returned back to the spot of incident. The deceased was lying at
that spot. The wife of the Accused No.1 came there and said that
the deceased deserved this assault as he had troubled the family
for many years. The deceased went to the police outpost by
keeping his hands on his abdomen.
In the cross-examination, he stated that, all the accused
and their family members were known to him. After the incident,
he went to Andheri police station on 24.04.2018 and met API
Kamble. At that time, he narrated the incident. That was his first
statement recorded in the case. His signature was obtained on the
statement on 24.04.2018. The statement dated 16.04.2018 on the
record did not bear his signature.
From the record of the case, it can be seen that this
witness’s statement dated 16.04.2018 is a part of the charge-sheet.
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There is no statement dated 24.04.2018.
12. In the further cross-examination, specific questions were
put to bring out the omissions from PW-3’s police statement. The
defence tried to make out a case that PW-3 Mohammad had not
stated the important aspects in his police statement which he
deposed in his deposition before the Court. The cross-examination
in that behalf projects as if this witness had not described the
incident of the accused No.1 inflicting blows with the knife on the
abdomen of the deceased.
13. We were very surprised to read this cross-examination as
it projected as if this witness had not stated so in his police
statement. Ordinarily, at the Appellate stage, the Appellate Court
ought not to have read the police statement. Since this was an
important issue, we decided to verify whether, in fact, PW-3
Mohammad had not said anything about the assault of the
deceased and the accused No.1. We had to verify from the police
statement as to whether the omissions are brought on record
correctly. This was important in the context of the cross-
examination to prevent abuse of process of law. We must note
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here that the omission was wrongly recorded by the learned
Judge. PW-3 Mohammad had not only described the assault by
knife on the abdomen of the deceased, but had added many more
things. When we specifically asked the defence counsel appearing
before us regarding this incorrect recording of omission in the
cross-examination, both the learned counsel submitted that, they
were not relying on this particular omission; which was projected
as if PW-3 Mohammad had not stated anything about the assault in
his police statement. We dictated this Judgment in the open Court
in presence of both the defence counsel appearing for the Accused,
as well as, in presence of the learned APP. We specifically recorded
the submission of the learned counsel for the Appellants that they
were not relying on this part of the cross-examination which
purportedly was an omission from the police statement of PW-3
Mohammad Amin Shaikh.
14. In the further cross-examination, he stated that the
police did not show the knife to him on 24.04.2018. Nobody had
accompanied him when he had gone to the police station on
24.04.2018. He further stated that the deceased died after three
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days from the incident while he was under treatment in the
hospital. He had not attended the funeral. He had not visited the
deceased in the hospital. He had not informed the family members
of the deceased. He was specifically asked whether the Accused
No.1 had sustained bleeding injury and blunt injury because of the
attack made by the deceased. PW-3 Mohammad stated that no
injury was sustained by the Accused No.1. He further stated that
the Accused No.1 and the deceased had a scuffle and the people
were trying to separate them. The deceased sustained injury after
he fell down. He added that the injury was sustained due to a
single blow. He denied the suggestion that the Accused No.1 was
trying to snatch the knife from the hands of the deceased. He
denied the suggestion that the deceased sustained bleeding injury
while the Accused No.1 was trying to snatch the knife from the
hands of the deceased when the deceased was in standing
position. He denied the suggestion that he did not witness any
incident.
15. PW-6 Hasrat Shaikh is the other eye witness. He deposed
that, he was running a paan shop. He knew the deceased. The
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deceased had left Hawaldar chawl and had shifted to Mira road
and his room in Hawaldar chawl was given on rent. He knew the
accused. He identified the accused before the Court. He deposed
that the relations between the Accused No.1 and the deceased
were not cordial because of construction of the room by the
Accused No.1. The incident took place on 16.04.2018.
Government Survey was going on regarding those houses. The
deceased came there. He met this witness. The deceased
approached the chawl owner i.e. Nazir’s wife. They were talking
with each other. At that time, the Accused No.1 came near the
deceased. There was a quarrel which resulted in a fight. The
Accused No.1 inflicted blow of knife on the right side of the
abdomen of the deceased. The people started running away. He
also ran away. He made a phone call to the police. The police came
there. On the way, the police met the deceased. The police carried
the deceased. He added that the Accused Nos.2 and 3 had arrived
there after the public had started running away.
16. On these answers, PW-6 Hasrat was declared hostile.
Learned APP cross-examined him. It appears that, there were some
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contrary portions in his police statement which were marked as
portions A, B, C and D. He denied having made those statements
before the police. Here again, the learned APP did not take care to
show those portions to the Investigating Officer. Therefore, those
portions are not proved properly. He denied the suggestions that
the Accused Nos.2 and 3 had held the deceased and that the
Accused No.1’s wife was instigating him. He denied the suggestion
that, after that the Accused No.1 inflicted several blows of knife on
the abdomen of the deceased.
In the cross-examination conducted on behalf of the
accused, he accepted that, he had not seen the Accused Nos.2 and
3 taking part in the incident. He accepted the suggestion that from
the beginning of the quarrel, the Accused No.1 and the deceased
were abusing each other and that both of them started hitting each
other. He denied the suggestion that the deceased took out a knife
from his waist, which was caught by the Accused No.1. He
accepted the suggestion that the Accused No.1 was trying to snatch
the knife from the deceased. Looking at the answers given by him,
it can be seen that he is not a reliable witness.
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17. The other important piece of evidence is in the nature of
oral dying declaration. For that purpose, PW-1 Police Naik Sachin
Sonmali was the first witness. He had lodged the F.I.R. He deposed
that he was attached to Andheri police station as a Beat Marshal.
On 16.04.2018, he was on duty. At about 2:45p.m. he received a
phone call about the incident at Hawaldar chawl. He went there.
He came to know that one person was stabbed and he learned that
the injured had proceeded towards the police outpost. PW-1 then
went towards Mograpada Beat No.3 police outpost. He saw the
injured there. He made enquiries with the injured. He gave his
name as Abdul Kayyum Sayyed. At that time, his intestine had
protruded out. One rickshaw was passing thereby. PW-1 stopped
that rickshaw. He carried the injured in that rickshaw. After about
100 meters he saw one police mobile van. PW-1 stopped that
mobile van and carried the injured to Trauma Care hospital in that
police van. The injured was shifted to the van on a stretcher. He
tried to get more information from the injured while the injured
was being taken to the hospital in the police van. At that time, the
injured told him that he was a resident of Mira Road. He had gone
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to the slum area at Mograpada for the purpose of attending a
survey. He owned Room No.12 at Hawaldar chawl. The Accused
No.1’s room was infront of his room. The Accused No.1 had raised
some unauthorized construction. Therefore, his room was
demolished and because of that there was a dispute between the
Accused No.1 and the injured. At the time of survey, the injured
told the Authorities that the Accused No.1’s room was illegal and,
therefore, the Accused No.1 was not entitled to get an alternative
room. There was an altercation between the injured and the
accused No.1. The Accused No.1 went to his house and brought a
knife. The injured further told that the Accused Nos.2 and 3 also
came there. Again, an altercation took place between the injured
on one side and all the accused on the other. The Accused Nos.2
and 3 were telling the Accused No.1 that the injured had troubled
them enough and that they would kill him. The Accused Nos.2 and
3 held the injured and the Accused No.1 gave blows of knife on the
abdomen of the injured. After the assault, the injured fell down on
the ground. He sought help from the people present there, but
nobody came forward to help him as they were frightened.
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Therefore, he himself proceeded towards Mograpada police
outpost. PW-1 further deposed that when they reached the
hospital, the duty officer API Kamble and PI Sahane had also
reached there. They also made enquiries with the injured, who
again narrated the incident to them in the same manner. The
injured was taken for treatment and, therefore, his signature or
thumb impression could not be obtained on his statement. PW-1
then lodged his F.I.R. with Andheri police station as the family
members of the injured were not known. His report was treated as
an F.I.R. It was brought on record at Exhibit-45.
In the cross-examination, he deposed that API Kamble
and PI Sahane reached the hospital at around the same time as
when PW-1 had reached there between 2:50p.m. to 2:55p.m. PW-1
gave the entire information to API Kamble who took it down in the
hospital. It was read over to PW-1 in the hospital itself. PW-1 had
even signed that statement. It was the first statement in this case.
He further deposed in the cross-examination that the information
given by the injured was taken down in the hospital. It was taken
down by API Kamble. PW-1 was not aware whether any Doctor
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had given his endorsement on that statement. The statement of the
injured was recorded before PW-1’s statement was recorded. The
statement of the injured was written by API Kamble in his own
handwriting. It was a single page statement. It was not signed by
API Kamble. This witness was shown the entire charge-sheet in the
Court, but it was accepted that said statement was not the part of
the charge-sheet. He further deposed that, before stepping into the
witness box, he had not gone through the contents of the F.I.R. at
Exhibit-45. He returned to the police station at about 4:00p.m. on
that day. API Kamble reached the police station after 10 to 15
minutes. According to him, API Kamble enquired about the
incident from him in the police station and at that time, PW-1 had
narrated the incident to him. The information given by PW-1 was
then typed on a computer. He had signed that computerized
statement. Again he was shown the entire charge-sheet. But he
was unable to point out the statement recorded at Trauma Care
hospital.
18. Thus, it is clear that the prosecution has not led
sufficiently cogent evidence as to which of the two statements
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given by PW-1 Sachin was treated as an F.I.R. It appears that, one
statement was recorded in the hospital and the other was recorded
at the police station.
19. In the further cross-examination, he stated that the
distance between the spot of the incident and the place where the
injured met him was about 5 to 7 minutes walk; meaning thereby
the injured walked for 5 to 7 minutes in that condition when he
met PW-1. PW-1 had not noted down the registration number of
the rickshaw in which the injured was carried. He was further
asked questions about Constable Ravrane, but he did not mention
anything further about police constable Ravrane. According to the
defence, it was police constable Ravrane who had taken the
injured to the doctors. Therefore, specific question was put to this
witness that the injured was taken to Trauma Care hospital for the
treatment by the police constable Ravrane. To this question, PW-1
Sachin answered that Police constable Ravrane was with him. But
he accepted that he was stating for the first time that police
constable Ravrane was with him. He could not explain as to why
his report did not mention the fact that the Accused Nos.2 and 3
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also had altercation with the injured. He also could not explain as
to why his report did not mention that the Accused Nos.2 and 3
uttered that they would kill the deceased.
20. The other witness on the point of oral dying declaration
is PW-5 Suresh Jadhav. He deposed that, he was residing at Nurbi
Usman chawl since his birth. Hawaldar chawl, Halimabai chawl
and Khairunissa chawl were situated near his chawl. He knew the
Accused No.1 and the deceased. According to him, the Accused
No.1 used to reside in the room belonging to the Accused No.1’s
mother in law. Room of the deceased was adjacent to that room.
The Accused No.1 had extended his shed on Abdul’s property.
There was a dispute. PW-5 being a social worker tried to settle the
dispute between them. On 16.04.2018, SRA was conducting a
survey. At about 2:30p.m. he received a phone call from one
Hashrat telling him that the Accused No.1 had stabbed Abdul with
a knife. Hashrat asked PW-5 Suresh to go to the spot. He rushed
there. He saw that Abdul Sayyed was injured with his intestine
protruding out from his abdomen. He was walking by holding his
intestine with his hands. PW-5 went near him. According to him,
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he himself and PW-1 Sachin took Abdul to the police outpost by
holding him. Abdul told him that the Accused No.1 had taken
revenge. The Accused Nos.2 and 3 had caught his hands and the
Accused No.1 had stabbed him. PW-5 Suresh and PW-1 Sachin
took Abdul by rickshaw to the hospital. On the way, they saw a
police van. Abdul was taken in that van with the help of a stretcher
and was admitted to the hospital. Abdul had told him before
reaching the hospital that, as the room of the Accused No.1 was
demolished because of the application made by Abdul, the Accused
No.1 had taken revenge. His statement was recorded on the next
day. He identified the Accused.
In his cross-examination, he deposed that he had told
the police as to what he saw on 16.04.2018 itself. The police
recorded his statement on 18.04.2018. It was recorded by
Hawaldar Sonmali. It is to be noted here that P.I. Sahane was the
I.O. and he himself did not state about recording of statement of
PW-5 Suresh. PW-5 Suresh deposed that, he was out of town from
19.04.2018 to 01.05.2018. He denied that his statement was
recorded by police on 02.05.2018 and he stated that his statement
22 of 43 901-apeal-691-692-719-23 (J)
was read over to him on 02.05.2018. He volunteered that, both his
statements were read over to him on 02.05.2018, then his
statement was finalized and then his signature was obtained.
When he reached the spot, Abdul was already lying on the ground
for about five minutes. PW-5 himself did not help Abdul to stand
up. PW-5 gave support to the protruding intestine. He had not
handed over his clothes to the police. He admitted that he had not
stated in his police statement that the Accused No.1 had extended
a shed on Abdul’s property. He deposed that, he had stated in his
police statement that the Accused Nos.2 and 3 had caught hands of
the injured. But he could not give any reason as to why this fact
was not mentioned in his police statement. This is an important
omission and it is proved from his police statement through the
evidence of PW-13 PI Suresh Sahane. He accepted the suggestion
that the statement of the injured was not taken in his presence at
the hospital.
21. The other evidence is in the nature of evidence of
panchas who were present for various panchanamas. PW-2 Kalim
Shaikh was present when the Accused No.1 was arrested at about
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6:00p.m. on 16.04.2018. PW-2 deposed that he was called to the
police station. The Accused No.1 was present there. He took out a
knife from his waist. It was handed over to the police officer. It was
kept in a packet. PW-2 signed the seizure of knife panchanama. It
is produced on record at Exhibit-50. PW-2 Kalim and the police
then went to the spot of the incident. The spot panchanama was
conducted. The police collected the articles from the spot including
broken spectacle and a pen. More importantly, a piece of intestine
was lying at the spot. All the articles were seized and packed. That
panchanama is produced on record at Exhibit-51.
In the cross-examination, he admitted that the police
did not provide alternate clothes to the Accused No.1 in his
presence. The police had shown injury marks on the person of the
Accused No.1. There were two injuries; one was on the thigh and
other was on the shoulder. They were fresh bleeding injuries.
Exhibit-50 also mentions those two injuries. Apart from that, one
more injury was on the calf.
22. PW-7 Firoz Shaikh was a pancha for inquest
panchanama. PW-8 Sayyada Nusarat Jahan Sayyed Abdul Quayum
24 of 43 901-apeal-691-692-719-23 (J)
was the wife of the deceased. However, the evidence of these two
witnesses is not very significant in the context of this case.
23. PW-9 Ramchandra Katkar was a pancha for seizure of
the clothes of the deceased. Those clothes were seized at about
3:00p.m. on 16.4.2018. That panchanama is produced on record
at Exhibit-84. The significance of this evidence is that this
panchanama was conducted before the F.I.R. was registered.
However, the fact that the injured was taken to the hospital and his
clothes were seized is hardly in dispute. Therefore, evidence of
these three witnesses is not material in the context of the case.
24. PW-10 Dr. Gaurav Sawant had treated the injured. He
deposed that, he was a Consultant at Trauma Center, Jogeshwari.
On 16.04.2018 at about 3:00p.m. PC 4758 attached to Andheri
police station had brought the injured to the Trauma Hospital.
From the evidence it appears that PC 4758 was Ravrane and not
PW-1 Sachin Sonmali. The injured had an injury on the upper
abdomen. He was in serious condition, therefore, he was
immediately taken to the operation theater. There were four
injuries on the upper abdomen. The abdomen was opened and the
25 of 43 901-apeal-691-692-719-23 (J)
intestine was outside the abdomen. The intestine was also cut into
pieces and there was severe bleeding. He produced the copies of
medical papers at Exhibit-91. According to him, a person could die
because of those injuries.
In the cross-examination, he stated that the patient
died on 19.04.2018. He accepted the suggestion that the patient
was suffering from septicemia. The septicemia’s progression led to
septicemic shock i.e. cardiac arrest.
25. PW-11 Dr. Sandeep Eknath Ingle had conducted the
postmortem examination. He observed the following injuries:
1. One stapled wound, 3cm in length obliquely placed
over right epigastric area, 1cm lateral to midline, on
opening the pins, incised lacerated wound cavity
deep, margins clean cut.
2. One stapled wound, 15cm, obliquely placed over
right hypochondriac area, 4cm lateral to midline, on
opening of pins, incised perforated wound of size 15
X 2 cm peritoneal cavity deep, margins clean cut.
3. One stapled wound, length bliquely placed over left
hypochondriac area, 2cm lateral to midline, on
opening of pins, incised perforated wound of size
5cm X 2 cm x peritoneal cavity deep, margins clean
cut.
4. One stapled wound, 23cm, placed vertically over
anterior abdominal wall, on opening of pins, incised
26 of 43 901-apeal-691-692-719-23 (J)
wound, 22 cm x 2cm x cavity deep, margins, clean
cut. (Therapuetic).
5. One stapled wound, 4cm in length, 15 cm obliquely
placed over left hypochondriac area 15cm lateral to
midline on opening of pins, incised perforated
wound of size 4 x 2 cm x peritoneal cavity deep,
margins clean cut.
6. One incised cut wound 2cm x 1cm x cavity deep
laced over right renal area of abdomen.
(Therapeutic).
7. One stitched up wound seen over, 1cm x 1cm placed
at midline (Therapeutic).
8. One wound for drainage seen over left side or
abdomen, (Therapeutic).
9. Incised crushed lacerated wound, 8cm x 4cm x 2cm
present in web between left hand’s thumb and index
finger.
10. Multiple abrasions seen, size vary from 1x0.3cm to
2x0.3cm over left hand and wrist.
11. Incised wound, 2x0.4x0.4cm, present over little
finger of right hand.
12. Multiple therapeutic injection marks seen over body
at places.
26. Apart from the wounds corresponding to the surgery,
there were four incised wounds. According to him, the cause of
death was septicemic shock following multiple stab injuries over
the abdomen. The PM notes are produced on record at Exhibit-99.
27 of 43 901-apeal-691-692-719-23 (J)
27. PW-12 API Ajay Baban Kamble was the first investigating
officer. He deposed that, he was informed telephonically about the
incident of stabbing. He went to the Trauma Care Hospital. He saw
the injured. The injury was on his stomach. The intestine was
protruding outside the stomach and he was shouting that the
Accused No.1 and his children had assaulted him. The doctor took
him for treatment. He categorically stated that the statement of the
injured could not be taken due to his condition. PW-12 then
recorded the statement of PW-1 PC Sachin Sonmali who had gone
to the spot of the incident, and as per his say the offence was
registered. PW-12 then went to the spot of the incident and
conducted the spot panchanama. It is produced on record at
Exhibit-51. He recorded the statements of various witnesses
including PW-3 Mohammad Shaikh. He supervised the inquest
panchanama after the death of the deceased.
In the cross-examination, he denied the suggestion that
when he reached the hospital, the injured was already taken for
surgery. He accepted the suggestion that the offence was not
registered till the panchanama of seizure of clothes of the injured
28 of 43 901-apeal-691-692-719-23 (J)
at Exhibit-84 was prepared. He accepted that, in the remand report
dated 17.04.2018 he had not mentioned the name of the assailant.
He denied the suggestion that he had not recorded the statement
of any eye witness on 17.04.2018. He surprisingly accepted that
PW-3 Mohammad had not stated the omission referred to in his
deposition. We have already made comments on the evidence of
this police officer. We must reiterate that the learned Judge and
the learned APP had not taken sufficient precaution in recording
this evidence carefully.
28. PW-13 PI Suresh Sahane was the second investigating
officer. He had recorded the statement of about 10 to 12 witnesses.
He had arrested the Accused Nos.2 and 3. He had sent the seized
articles for chemical analysis. After completion of the investigation,
he submitted the charge-sheet. He did not know whether the
information given by the deceased was reduced into writing. He
had recorded the statement of PW-5 Suresh Jadhav. He accepted
that PW-5 Suresh had not stated in his police statement about the
hands of the injured having been held.
This, in short, is the evidence led by the prosecution.
29 of 43 901-apeal-691-692-719-23 (J)
SUBMISSIONS MADE BY MR. VIPUL DUSHING, LEARNED
COUNSEL FOR THE ACCUSED NO.1.
The oral dying declaration contradicts the evidence of
the eye witnesses. The evidence of the eye witnesses is not reliable
and consistent. The genesis of the incident is suppressed. The
injuries sustained by the accused which are reflected in the arrest
panchanama are not explained by the prosecution. He relied on
the judgment of the Hon’ble Supreme Court in the case of Lakshmi
Singh and others etc. V. State of Bihar 1. The medical certificate of
the accused was suppressed and in spite of efforts by the defence,
the prosecution deliberately did not bring it on record. The
deceased by his complaints was rendering the Accused No.1 and
his family homeless. There were three versions as to how the knife
appeared on the scene. One version mentioned that the Accused
No.1 was carrying it near his waist. The other version is that the
Accused No.1 went home and brought it. It is mentioned so in the
alleged dying declaration. The third version is given by the
Accused No.1. According to him, the deceased was carrying that
knife and in the scuffle, he got injured. There is no reason to
1 AIR 1976 SUPREME COURT 2263
30 of 43 901-apeal-691-692-719-23 (J)
disbelieve the defence of the Accused No.1. The eye witnesses are
not reliable. PW-6 Hasrat Shaikh was declared hostile, but he had
given some answers favourable to the Accused No.1. Learned
counsel submitted that, in a given case, part of the evidence, even
of the hostile witness, can be accepted. Alternatively, he submitted
that the offence would fall within the Exception 2 of Section 300
of the I.P.C. At the highest, it can be said that the Accused No.1
exceeded his right of private defence. Because, according to the
Accused No.1 the deceased himself was carrying a knife. This fact
is supported by the injury suffered by the Accused No.1.
Admittedly, it was a crowded locality and the prosecution has
examined only two witnesses; out of whom, one was declared
hostile. Therefore, the fact that the prosecution did not examine
any other witness shows that the prosecution story is not true and
non examination of other witnesses would attract adverse
inference against the prosecution case. There is serious doubt
about whether the deceased could be in a position to give any
statement whether oral or written. As far as the oral dying
declaration is concerned, PW-1’s version is not supported by
31 of 43 901-apeal-691-692-719-23 (J)
PW-5 Suresh consistently. PW-1 Sachin Sonmali does not speak
about the presence of PW-5 Suresh at all. Learned counsel
submitted that even Exception 4 to Section 300 of the I.P.C. would
be attracted because it was a sudden quarrel.
29. According to the prosecution case, and in particular,
according to PW-1 Sachin, the information given by the injured
was reduced into writing but that piece of paper was never
produced before the Court. He further submitted that, PW-1 Sachin
stated that, his statement was recorded in the hospital, but it is not
produced on record. Instead, his statement recorded on the
computer in the police station was treated as an F.I.R.
SUBMISSIONS MADE BY MR. GAURAV BHAWNANI, LEARNED
COUNSEL FOR THE ACCUSED NOS.2 AND 3.
30. The oral dying declaration and the evidence of the eye
witnesses is inconsistent. The eye witnesses have not attributed
any role to the Accused Nos.2 and 3. Sufficient doubt is created
regarding their participation or even their presence. None of the
eye witnesses has stated that the Accused Nos.2 and 3 came there.
There is no recovery of weapon at the instance of the Accused
Nos.2 and 3. It is not the prosecution case that they had used any
32 of 43 901-apeal-691-692-719-23 (J)
weapon. Their clothes were not seized. He made similar
submissions regarding the dying declaration and criticized the
prosecution evidence regarding the oral dying declaration and the
written dying declaration. In addition, he submitted that, there
was 16 days delay in recording PW-5 Suresh’s statement. It was
recorded on 02.05.2018. The presence of Ravrane is another
curious factor. PW-1 Sachin initially did not refer to PC Ravrane at
all, but considering the difficulty as the medical papers showed
presence of Ravrane, PW-1 Sachin had to admit that Ravrane was
present. Though, PW-5 Suresh stated that the injured had stated in
the oral dying declaration that the Accused Nos.2 and 3 were
holding the hands of the deceased while the Accused No.1 gave
blows of knife, this important fact is not stated by him in his police
statement. That omission is duly proved. There is reasonable
doubt as to when exactly the oral dying declaration was made.
PW-1 Sachin and PW-5 Suresh have not given consistent versions
regarding the same. It is also difficult to believe that having his
intestine cut into pieces, how the injured could have walked for
5 to 7 minutes before PW-1 Sachin could meet him. Therefore,
33 of 43 901-apeal-691-692-719-23 (J)
PW-1 Sachin is not a reliable witness. He further submitted that,
from the fact that the I.O. had not seized the clothes of the
Accused Nos.2 and 3 means that they were not stained with blood;
meaning thereby that the Accused Nos.2 and 3 were not present at
the spot. The written dying declaration given by the injured is not
produced on record. There is no trace of such written piece of
paper. This also shows that the evidence is fabricated.
SUBMISSIONS MADE BY MS. KRANTI HIWRALE, LEARNED APP
FOR THE STATE/RESPONDENT.
31. Learned APP, on the other hand, submitted that the
dying declaration and the evidence of the eye witnesses are
consistent. Though the evidence of the eye witnesses does not
show any role played by the Accused Nos.2 and 3, the role of the
Accused No.1 is consistent in both depositions of the eye
witnesses. As far as the injuries suffered by the Accused No.1 are
concerned, he himself had not stated anywhere that he had
sustained those injuries. Even in the answers to the questions in
his statement U/s.313 of the Cr.P.C. he had not specifically stated
that he had suffered those injuries at the hands of the deceased.
The eye witnesses were the independent witnesses. The enmity
34 of 43 901-apeal-691-692-719-23 (J)
and the motive is proved. There were four stab injuries. The
intestine was cut into pieces. It was a brutal assault. The Accused
No.1 had acted in a cruel manner.
REASONS
32. We have considered these submissions. As far as the
Accused Nos.2 and 3 are concerned, sufficient doubt is raised
about their participation in the offence. As mentioned earlier, the
eye witnesses have not attributed any role to them. The most
important witness in this case is PW-3 Mohammad. He has not
attributed any role to the Accused Nos.2 and 3. He was very much
present at the spot right from the inception of quarrel till the end.
Even PW-6 Hasrat Shaikh who is examined as an eye witness has
not attributed any role to them. While it is true that the oral dying
declaration makes reference to the role played by the Accused
Nos.2 and 3, it is the prosecution case that the injured had told
PW-1 Sachin and PW-5 Suresh that the Accused Nos.2 and 3 had
held the hands of the deceased, while accused No.1 inflicted
blows. However, PW-5 Suresh had not stated so in his police
statement. That omission is brought on record.
35 of 43 901-apeal-691-692-719-23 (J)
33. The next question is whether the evidence of PW-1
Sachin suffers from any infirmity. In that context, it must be noted
that PW-1 Sachin has not spoken a word about the presence of
PW-5 Suresh. According to PW-5 Suresh he was present
throughout with PW-1 Sachin, and particularly when the deceased
narrated the incident to them. In that case, it was necessary that
PW-1 Sachin would have mentioned the presence of PW-5 Suresh
when the oral dying declaration was made.
34. Even otherwise, according to PW-1 Sachin, the
information given by the injured was reduced into writing in the
hospital. Though that written paper could not be signed by the
injured, the prosecution could have easily produced it on record or
some endorsement of the Doctor could have been obtained on the
same piece of paper that the injured was immediately taken for
surgery and, therefore, his signature could not be obtained.
Therefore, the first information received by the police authorities is
not brought on record.
35. As far as the F.I.R. is concerned, the evidence shows that
PW-1 Sachin’s statement was recorded in the hospital, but it was
36 of 43 901-apeal-691-692-719-23 (J)
not treated as an F.I.R. His other statement was recorded at the
police station and it was a computerised statement. The first
statement is not brought on record. All this has raised a reasonable
doubt about PW-1 Sachin’s evidence. Moreover, it is also difficult
to believe that the injured could walk a distance for 5 to 7 minutes
when his intestine was cut into pieces. One piece was lying at the
spot itself. Therefore, there is sufficient doubt created about
whether the injured had given oral dying declaration before PW-1
Sachin and PW-5 Suresh.
36. As a result of the above discussion, the irresistible
conclusion is that the prosecution has not proved its case beyond
reasonable doubt against the Accused Nos.2 and 3.
37. As far as the Accused No.1 is concerned, as mentioned
earlier, the oral dying declaration appears to be doubtful, but there
are other important circumstances against him. Firstly, there is
evidence of two eye witnesses PW-3 Mohammad and PW-6 Hasrat.
Though, PW-6 Hasrat was declared hostile, in his examination in
chief he had clearly stated that the Accused No.1 inflicted blow of
knife on the right side of abdomen of the deceased. He had resiled
37 of 43 901-apeal-691-692-719-23 (J)
from his police statement only in respect of the Accused Nos.2 and
3. Otherwise, his evidence was not against the prosecution, as far
as, the Accused No.1 is concerned. The evidence of PW-3
Mohammad is quite reliable. He has categorically named the
Accused No.1 as the perpetrator of the crime. The Accused Nos.2
and 3 are the sons of the Accused No.1. PW-3 Mohammad had
named the Accused No.1 as an offender. He had no reason to
shield the Accused Nos.2 and 3. All the accused were from the
same family. PW-3 Mohammad, therefore, is a reliable witness. As
far as the main incident of assault on the deceased is concerned,
there was no omission from his police statement. His evidence is
also consistent with the medical evidence.
38. Learned counsel for the Accused No.1 relied on the case
of Lakshmi Singh. The Hon’ble Supreme Court in that Judgment
has considered the principles governing the facts when the injuries
on the accused are not explained by the prosecution. The Hon’ble
Supreme Court has held that, non explanation of the injuries
sustained by the accused at about the time of the occurrence or in
the course of altercation is a very important circumstance from
38 of 43 901-apeal-691-692-719-23 (J)
which the Court can draw the following inferences:-
1. that the prosecution suppressed the genesis and the
origin of the occurrence and has thus not presented
the true version;
2. That the witnesses who have denied the presence of
the injuries on the person of the accused are lying on
a most material point and therefore their evidence is
unreliable;
3. that in case there is a defence version which explains
the injuries on the person of the accused it is
rendered probable so as to throw doubt on the
prosecution case.
It is held that, the omission on the part of the
prosecution to explain the injuries on the person of the accused
assumes much greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution.
The Hon’ble Supreme Court further added that there may be cases
where the non explanation of the injuries by the prosecution may
not affect the prosecution case, particularly in cases where the
injuries sustained by the accused were minor or superficial or there
the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and credit-worthy, that it far
outweighs the effect of the omission on the part of the prosecution
39 of 43 901-apeal-691-692-719-23 (J)
to explain the injuries.
39. In the present case, the defence could not point out as to
why PW-3 Mohammad and PW-6 Hasrat were deposing against the
Accused No.1. The defence has not shown any enmity between
PW-3 Mohammad and PW-6 Hasrat on one hand and the Accused
No.1 on the other. As rightly submitted by the learned APP, in the
answer in the statement U/s.313 of Cr.p.c. the accused No.1 has
not specifically stated that he had sustained injuries at the hands
of the deceased. There are only indirect references through
suggestions that the Accused could have sustained those injuries at
the hands of the deceased.
40. The nature of injuries is also not brought on record.
After the Accused No.1 had sustained some injuries it should have
reflected somewhere on record. It is also not possible to believe
that the deceased would carry a knife to commit assault on the
Accused No.1. It was the Accused No.1 who was the aggrieved
person and the angry one in their dispute because the deceased
had made a complaint against him before the authorities resulting
in demolishing the structure of the Accused No.1. Also there was a
40 of 43 901-apeal-691-692-719-23 (J)
strong possibility that the Accused No.1 could have been rendered
homeless. On the other hand, the Accused No.1 had a strong
motive to attack the deceased for the same reasons. Therefore, in
the present case, it cannot be said that the prosecution has
suppressed the genesis of the incident.
41. The Accused No.1 himself has practically admitted that
there was a scuffle between him and the deceased. Therefore,
presence of the Accused No.1 is undisputed at the scene of the
offence with the deceased. The subsequent conduct of the Accused
No.1 is also important. He straight away went to the police station.
He was arrested there with the weapon with him.
42. Thus, the presence of the Accused No.1, his role, his
subsequent conduct is sufficiently proved by the prosecution
beyond reasonable doubt.
43. We are unable to agree with the submission of the
learned counsel for the Accused No.1 that, his role would fall
either within Exception 2 or 4 to Section 300 of the I.P.C. The
evidence shows that the Accused No.1 was the aggressor. He had
carried a weapon with him. The deceased was talking with the
41 of 43 901-apeal-691-692-719-23 (J)
chawl owner. According to the eye witness PW-3 Mohammad, the
Accused No.1 was carrying a knife with him. Initially, a quarrel
started resulting in a scuffle. After that the Accused No.1 inflicted
blow with knife on the deceased. There was no apprehension to
the Accused No.1 of any serious injury to his person. Therefore, his
case would not fall within Exception 2. We are also unable to
accept that his act would fall within Exception 4. There was enmity
between the parties. The deceased was talking to chawl owner. At
that time, the Accused No.1 came there and started quarreling.
The Exception 4 can be used with certain restrictions.
Exception 4. to Section 300 of the IPC reads thus:
“Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in
a cruel or unusual manner.
The benefit of this exception is available only if the
offender does not act in a cruel or unusual manner. In the present
case, there were as many as four stab wounds, cutting the intestine
into pieces. The intestine was protruding out of the abdomen.
Some part of the intestine had fallen down at the spot. Therefore,
42 of 43 901-apeal-691-692-719-23 (J)
by no stretch of imagination, it can be said that this act was not
cruel or unusual. Therefore, the act of the Accused No.1 does not
fall within Exception 4 either.
44. As a result, it can safely be concluded that the
prosecution has proved its case beyond reasonable doubt against
the Accused No.1. However, there is sufficient doubt raised as far
as the Accused Nos.2 and 3 are concerned. Therefore, the Accused
Nos.2 and 3 are entitled to the benefit of doubt.
45. Hence, the following order:
ORDER
1. The Criminal Appeal No.719 of 2023 is
dismissed.
2. The Criminal Appeal No.691 of 2023 and
Criminal Appeal No.692 of 2023 are allowed.
3. The Appellant Najim Salim Khan in Criminal
Appeal No.691 of 2023 and the Appellant Farhan
Salim Khan in Criminal Appeal No.692 of 2023
are acquitted from all the charges.
4. The part of the Judgment and order dated
07.06.2023 passed by the learned Additional
43 of 43 901-apeal-691-692-719-23 (J)
Sessions Judge, Borivali Division, Dindosi,
Mumbai, in Sessions Case No.229 of 2018
convicting and sentencing the Accused Nos.2 and
3 are set aside.
5. The Accused Nos.2 and 3 are on bail. Their bail
bonds stand cancelled. However, they shall
execute P.R. bonds in the sum of Rs.25000/- each
with one or two sureties in the like amount
within a period of eight weeks from today.
6. All the Appeals are disposed of.
7. The connected interim application is also
disposed of.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
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