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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

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
                          2 of 43                 901-apeal-691-692-719-23 (J)


                        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
                         3 of 43                 901-apeal-691-692-719-23 (J)


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
                        4 of 43                901-apeal-691-692-719-23 (J)


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
                        5 of 43                901-apeal-691-692-719-23 (J)


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
                        6 of 43                 901-apeal-691-692-719-23 (J)


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.
                        7 of 43               901-apeal-691-692-719-23 (J)


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
                        8 of 43                901-apeal-691-692-719-23 (J)


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
                         9 of 43                901-apeal-691-692-719-23 (J)


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.
                        10 of 43               901-apeal-691-692-719-23 (J)


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
                        11 of 43                901-apeal-691-692-719-23 (J)


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
                         12 of 43               901-apeal-691-692-719-23 (J)


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
                        13 of 43                   901-apeal-691-692-719-23 (J)


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
                          14 of 43                  901-apeal-691-692-719-23 (J)


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.
                        15 of 43                901-apeal-691-692-719-23 (J)


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
                        16 of 43               901-apeal-691-692-719-23 (J)


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.
                         17 of 43                   901-apeal-691-692-719-23 (J)


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
                        18 of 43               901-apeal-691-692-719-23 (J)


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
                         19 of 43               901-apeal-691-692-719-23 (J)


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
                        20 of 43               901-apeal-691-692-719-23 (J)


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,
                        21 of 43                901-apeal-691-692-719-23 (J)


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
                          23 of 43               901-apeal-691-692-719-23 (J)


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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