RIZWAN SARFARAJ SHAIKHversusTHE STATE OF MAHARASHTRA

                      Gokhale                       1 of 19             901-apeal-110-22 (J)


                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                                      CRIMINAL APPEAL NO. 110 OF 2022

                     Rizwan Sarfaraj Shaikh                            ..Appellant
                          Versus
                     The State of Maharashtra & Anr.                   ..Respondents

                                                   WITH
                                  INTERIM APPLICATION NO. 933 OF 2024
                                                   WITH
                                 INTERIM APPLICATION NO. 2502 OF 2025
                                                     IN
                                    CRIMINAL APPEAL NO. 110 OF 2022
                                                 __________
                     Ms. Shaheen Kapadia a/w. Irfan Unwala for Appellant.
                     Ms. Gauri S. Rao, APP for State/Respondent.
                     Mr. Akshay Bankapur (Appointed Advocate) for Respondent No.2.
                                                 __________

                                        CORAM : SARANG V. KOTWAL &
                                                RANJITSINHA RAJA BHONSALE, JJ.

                                        DATE    : 29 SEPTEMBER 2026

                     JUDGMENT : (PER SARANG V. KOTWAL, J.)

                     1.           The Appellant has challenged the Judgment and Order

                     dated 04.07.2019 passed by the learned Sessions Judge, Greater

                     Bombay, in Sessions Case No.806 of 2016. By the impugned

                     Judgment and Order, the Appellant was convicted and sentenced

                     as follows:

        Digitally
        signed by
        VINOD
VINOD   BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
        2026.10.07
        10:40:21
        +0530
                                  2 of 19           901-apeal-110-22 (J)


             i)   The Appellant was convicted for commission of
                  the offence punishable U/s.302 of the IPC and
                  was sentenced to suffer life imprisonment and to
                  pay a fine of Rs.10,000/- and in default of
                  payment of fine to suffer rigorous imprisonment
                  for one year.

             ii) He was convicted for commission of offence
                  punishable u/s 37(1)(a) r/w 135 of the Bombay
                  Police Act, 1951 and was sentenced to suffer
                  rigorous imprisonment for one year and to pay a
                  fine of Rs.1,000/- and in default of payment of
                  fine to suffer rigorous imprisonment for one
                  month.

             iii) Both the substantive sentences were directed to
                  run concurrently.

             iv) The Appellant was granted set off U/s.428 of the
                  Cr.P.C.

2.       There were two more accused who faced the trial along

with the Appellant. They were acquitted. The Appellant was the

original Accused No.3.


3.       Heard Ms. Shaheen Kapadia, learned counsel for the

Appellant, Ms. Gauri Rao, learned APP for the State-Respondent
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No.1 and Mr. Akshay Bankapur, learned Appointed Advocate for

the Respondent No.2.


4.        The prosecution case, in brief, is as follows:


           The Appellant was indulging in illegal activities of

committing theft of electricity by connecting the wires illegally.

One week prior to the incident dated 08.08.2016, he had climbed

on the roof of the house of Bakarali (deceased in this case). There

was some damage to the roof. However, on that occasion, the issue

did not escalate further. On 08.08.2016 again he climbed on the

roof to connect the wires illegally. Bakarali and his brother

Akbarali objected to his activities. He climbed down. There was a

quarrel between them. The Appellant’s family members joined him

in quarreling with the family members of the deceased. It is the

prosecution case that the Appellant removed a knife from his

pocket and gave two blows on the back of Bakarali. The Appellant

then ran away. Bakarali was taken to the Hospital, but he

succumbed to his injuries.


5.        C.R.No.319 of 2016 was registered at Shivaji Nagar
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police station. The investigation was conducted, the spot

panchanama and other panchanamas were conducted, the

postmortem was carried out and the statements of the witnesses

were recorded. During investigation, the knife was recovered at

the instance of the Appellant which was concealed below the roof

of his own house. The clothes of the Appellant and the deceased

were seized and sealed. The articles were sent for chemical

analysis. At the conclusion of the investigation, the charge-sheet

was filed. The case was committed to the Court of Session.


6.        During trial, the prosecution examined eight witnesses

including two eye witnesses, the panchas, the Medical Officer and

the Investigating Officers. The defence of the Appellant was of

total denial. The learned trial Judge considered the evidence on

record and the defence of the Appellant. After considering all the

aspects, the learned Judge convicted and sentenced the Appellant,

as mentioned earlier.


7.        PW-1 Mohd. Shamim Ansari was the first informant and

an eye witness. He was the younger brother of Akbarali and
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Bakarali. They were all residing together with their sisters and

younger brothers. He knew the Appellant and his family members.

He also knew one Shahid. The Appellant was working under

Shahid. He deposed that, Shahid was illegally supplying electricity

in the hutment area and the Appellant was assisting him. One Rani

was his fiancée. One Nazma was Rani’s mother. Eight days prior to

the incident, the Appellant had climbed on the roof of PW-1’s

house while he was connecting cables. At that time, he broke the

cement roof. PW-1 had confronted him. The Appellant had agreed

to reimburse the damages. The incident took place on 08.08.2016.

The Appellant and one Jafar again climbed on the roof of PW-1’s

house for connecting the electricity cables. PW-1’s brother Akbarali

confronted them. They abused him. They came down. In the

meantime, Nazma and Rani (Accused Nos.1 and 2) also came

there. The Appellant, Shahid, Rani and Nazma started beating PW-

1, his mother and brother. The Appellant took out a dagger

concealed near his back and stabbed Bakarali on his back. He gave

two blows. Bakarali fell down. They all ran away. PW-1 managed

to take Bakarali to the hospital, but he was declared dead. Then
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they went to Shivaji Nagar police station and lodged the FIR. The

FIR is produced on record at Exhibit-27.


            Learned APP before the trial Court asked this witness

whether he would be able to identify the dagger, if showed to him.

He answered that, he was at some distance when the incident took

place and, therefore, he would not be able to identify it.

Nonetheless, he was shown other articles, as well as, the dagger.

He then identified it.


            In the cross-examination, he answered that, there were

more than 500 huts in that area. Most of them used unauthorised

electricity. The height of his house was 24 feet. It was double

storied. The roof of the upper floor was of tin sheet. The electricity

wires passed through the upper roof of his house. The FIR was

lodged at 2:45p.m. on 08.08.2016. It substantially supports his

case.


8.        PW-2 Shabnam Ansari was another eye witness. She was

the wife of Akbarali and sister in law of the deceased Bakarali. She

deposed that, they all were staying together. She further deposed
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that, at the time of the incident on 08.08.2016 at about 12:30p.m.,

the Appellant climbed the roof of their house for connecting the

cables. Bakarali confronted him. The Appellant was asked to come

down, but he refused and started abusing. The Accused No.2 Rani,

who was the Appellant’s fiancée, came there. The Accused No.1

also reached there. The quarrel became more intense. Shahid was

called. He came and started beating Akbarali. There was a scuffle

between PW-1’s mother and Accused Nos.1 and 2. In that incident,

the Appellant took out a knife and stabbed Bakarali on his back,

and all of them ran away. Bakarali was taken to Rajawadi hospital,

but he was declared dead before his admission. PW-2 identified the

weapon before the Court. She identified the clothes produced in

the Court.


             In the cross-examination, she could not state the height

of the mezzanine floor. She deposed that the wiring was above the

mezzanine floor. Beyond this, there was hardly anything in her

cross-examination.


9.       PW-3 Bandenawaz Pathan was a pancha for the spot
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panchanama (Exhibit-37), for panchanama of seizure of clothes of

the accused (Exhibit-38) and for panchanama of seizure of clothes

of the deceased (Exhibit-39). The spot of the incident is hardly in

dispute. The clothes of the accused were recovered on the same

day at about 6:45p.m. The Appellant was given other set of

clothes, as mentioned in the panchanama.


10.       PW-4 Dr. Balaji Falke had conducted the postmortem

examination on 08.08.2016. He noticed the following injuries:


             i)   Stab wound of size 4cm x 1.5cm x chest cavity
                  deep over right side of back, below right scapula,
                  placed obliquely with outer end lower than inner
                  end. It was spindle shaped. The track entered
                  chest through pleura and pierced the right lung
                  middle lobe and part of lower lobe ends in the
                  paranchyma of middle lobe.

             ii) Stab wound of size 4cm x 2cm x chest cavity
                 deep over right side of back, below right scapula;
                 6cm below and slightly medial to injury No.1,
                 placed obliquely with outer end lower than inner
                 end. It was spindle shaped. The track entered
                 chest through 10th intercostal space piercing
                 pleura.



           As a result, the right lung had collapsed. The left lung

was intact. The pericardium was intact. Heart was intact. The
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cause of death was mentioned as “Hemorrhagic shock due to

multiple (two) stab injuries.” The postmortem notes are produced

on record at Exhibit-47.


11.       PW-5 PC Juber Mulla attached to Shivaji Nagar police

station had published the prohibition order issued by the Deputy

Commissioner of Police in the area of Shivaji Nagar, Baingan wadi

etc. for the period between 27.07.2016 to 25.08.2016.


12.       PW-6 PSI Rupesh Dalvi had registered the FIR.


13.       PW-7 PI Ravindra Howale was the investigating officer.

He recorded the statements of the witnesses. He deposed that, he

recorded the disclosure statement of the Appellant and pursuant to

that statement, seized the weapon of offence i.e. dagger which was

kept under the roof of the house of the Appellant. The

memorandum panchanama and the seizure panchanama are

produced on record at Exhibit-56 and 56A. He seized the clothes of

the deceased and the accused and sent the articles for chemical

analysis. After completion of the investigation, he filed the charge-

sheet.
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14.       PW-8 Mohd. Wali Mustaq Shaikh was a pancha for

recovery of weapon, but he had turned hostile and did not support

the prosecution case.


15.       Apart from this ocular evidence, the prosecution

produced the C.A. certificate on record. It showed presence of

human blood on the weapon, clothes of the Appellant and on the

clothes of the deceased. However, the blood group was

inconclusive.


           This, in short, is the evidence led by the prosecution.


SUBMISSIONS OF MS. SHAHEEN KAPADIA, LEARNED COUNSEL
FOR THE APPELLANT:

16.       Learned counsel for the Appellant submitted that,

admittedly, there were about 400 huts in the area, but no

independent witnesses were examined. Both the eye witnesses

were closely related to the deceased. The recovery of the weapon

was not proved. The pancha for recovery panchanama of the

weapon did not support the prosecution case. The investigating

officer did not depose about the actual statement made by the

Appellant and the steps taken in recovering the weapon. The
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learned Judge has discarded the evidence of recovery. She

submitted that, there is no evidence against the Appellant. In the

alternative, she submitted that the act attributed to the Appellant

was not premeditated. There was no preparation. It occurred on

the spur of the moment. Therefore, the offence would not fall

within the definition of Section 300 of the IPC, but it would be

covered under Exception 4 to Section 300 of the IPC. She

submitted that, at the highest, knowledge can be attributed to the

Appellant and, therefore, the offence would fall within Part II of

Section 304 of the IPC. She submitted that the Appellant is in

custody from 08.08.2016. More than ten years have passed.

Therefore, the sentence be reduced to the period already

undergone by him.


SUBMISSIONS OF MS. GAURI RAO, LEARNED APP FOR THE
STATE:

17.      Learned APP submitted that, PW-2 Shabnam had

identified the dagger produced in the Court as the murder

weapon. The evidence of PW-1 Mohd. Shamim and PW-2 Shabnam

was consistent. The Appellant had gone to the house of the
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deceased, therefore, he was the aggressor. The intention was clear.

There was an earlier incident which had taken place prior to one

week and in spite of that, the Appellant had again gone to that

house and, therefore, this incident was premeditated and would

fall within the meaning of ‘murder’ as defined U/s.300 of the IPC.


REASONS AND CONCLUSION


18.       We have considered these submissions. We find that the

evidence of PW-1 Mohd. Shamim and PW-2 Shabnam is quite

consistent. The spot of the incident is hardly in dispute. Both of

them were the natural witnesses. They are the close relatives of

the deceased. They also have narrated the incident right from the

inception. They also deposed about the earlier incident when the

roof was damaged by the Appellant. In spite of that, the Appellant

again came to the same place and this incident had taken place.

Their evidence is supported by the medical evidence. Therefore,

though the prosecution has not examined any independent

witness, we are satisfied that the evidence of PW-1 and PW-2 is

consistent. The spot of the incident is hardly in dispute. It was in
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front of the house. Therefore, PW-1 and PW-2 could have naturally

witnessed the incident. Quality of their evidence is satisfactory.

Hence, we do not find fault with the prosecution for not examining

any independent witness.


19.      The learned trial Judge has discarded the evidence of

recovery of weapon and we agree with the observations of the

learned trial Judge. The pancha for the recovery of weapon has not

supported the prosecution case. More importantly, the I.O. in his

substantive evidence has merely stated that the Appellant has

given a statement and pursuant to that, the knife was recovered.

He did not state that the Appellant had showed a particular place

and the knife was recovered from that place. The substantive

evidence given by PW-7 Ravindra does not satisfy the requirement

of Section 27 of the Evidence Act. His only vague statement was

that the Appellant had given disclosure statement and pursuant to

that statement, the weapon was seized, which was kept on the roof

of the house of the Appellant. PW-1 Mohd. Shamim had shown his

inability to identify the weapon. In this view of the matter, the

prosecution has not proved that a particular weapon was used by
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the Appellant. In the context of the case, this assumes importance

because the nature of the weapon would be of material

significance in this case.


20.       Learned counsel for the Appellant rightly submitted that

the offence would fall within Exception 4 to Section 300 of the

IPC; which reads thus:


         Exception 4. - 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.

         Explanation. - It is immaterial in such cases which
         party offers the provocation or commits the first
         assault.”


21.       In this case, as per the prosecution case, the Appellant

was carrying on activities of connecting wires for supplying the

electricity illegally to the people in the area. For that purpose, he

had climbed on the roof of the deceased’s house. The purpose for

the Appellant coming there was for connecting this illegal

connection. He had not gone to the house of the deceased with an

intention to assault anyone. After that, he was confronted by the
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deceased and his brother. Thereafter, the quarrel started. The

Appellant was joined by his fiancée and her mother. On the other

hand, the deceased’s family members also took part in the quarrel.

It is quite clear that the quarrel had started on the spur of moment.

During that quarrel, the Appellant took out a knife concealed near

his back and gave two blows on the back of the deceased Bakarali.

Out of which, one stab reached the cavity below the right scapula

piercing right lung, resulting in his death. Therefore, Exception 4

to Section 300 of the IPC would be attracted in this case. It was a

sudden quarrel. The Appellant had not acted in unusual manner.

There was no premeditation to commit the offence.


22.       Learned counsel for the Appellant has rightly submitted

that, as a part of his activity of connecting wire cables, he could

have carried the knife and, therefore, possession of knife in this

particular case does not mean that, he had come prepared to cause

assault by knife on anyone. In that context, the nature of weapon

assumes importance. But the prosecution has not led cogent

evidence to show that, it was not an ordinary knife.             At the

highest, it was a sharp weapon which could be used for cutting
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wires. Hence, the prosecution has failed to prove that the

Appellant had come there with preparation and intention to

commit murder. In this view of the matter, the offence punishable

U/s.302 of the IPC is not made out.


23.       Learned    counsel    submitted     that,   at   the     highest,

‘knowledge’ as required U/s.304(II) of the IPC can be attributed to

the Appellant, and not the intention. However, we are unable to

agree with the learned counsel for the Appellant in that behalf.

Section 304 of the IPC reads thus:


        “Section 304 - Punishment for culpable homicide not
        amounting to murder

           Whoever commits culpable homicide not amounting
           to murder shall be punished with imprisonment for
           life, or imprisonment of either description for a term
           which may extend to ten years, and shall also be
           liable to fine, if the act by which the death is caused is
           done with the intention of causing death, or of
           causing such bodily injury as is likely to cause death;

           or with imprisonment of either description for a term
           which may extend to ten years, or with fine, or with
           both, if the act is done with the knowledge that it is
           likely to cause death, but without any intention to
           cause death, or to cause such bodily injury as is likely
           to cause death.”


24.       In this case, the nature of injuries will have to be taken
                               17 of 19                901-apeal-110-22 (J)


into consideration. The Appellant had given two blows, out of

which, one blow had pierced the right lung causing its collapse,

resulting in the death of the deceased. Looking at the nature of

injuries, it can be concluded that the Appellant had intention to

cause such bodily injury which was likely to cause death as

mentioned in Part I of Section 304 of the IPC. From the description

of the incident, it is clear that the act committed by the Appellant

was done with an intention of causing death or causing such

bodily injury, as was likely to cause death. Therefore, his act would

fall within Part I of Section 304 of the IPC. To that extent, the

conviction and sentence will have to be altered.


25.       We seriously considered the submissions regarding

quantum of the sentence. The Appellant was slightly above 18

years of age at the time of the incident. He is already in custody

from 08.08.2016. Hence, he is in custody for more than ten years.

Therefore, the sentence, which he has already undergone in prison

after his arrest, would meet the ends of justice.


26.       Hence, the following order:
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                              ORDER


i)   The Appeal is partly allowed.

ii) The Judgment and order dated 04.07.2019
     passed by the learned Sessions Judge, Gr.
     Bombay, in Sessions Case No.806 of 2016,
     convicting and sentencing the Appellant for
     commission of the offence punishable U/s.302 of
     the IPC, is set aside.

iii) Instead,    the     Appellant   is   convicted       for
     commission of the offence punishable U/s.304(I)
     of the IPC. His sentence is altered to the period
     which he has already undergone in prison.

iv) The fine amount of Rs.10000/- is altered to
     Rs.1000/-. In default of payment of fine, he is
     sentenced to suffer S.I. for fifteen days.

v) The conviction and sentence U/s.37(1)(a) r/w.
     135 of the Bombay Police Act, 1951 are
     maintained.

vi) The substantive sentence to run concurrently. Set
     off U/s.428 of the Cr.P.C. be granted to him. If the
     fine amount is not paid already, the ‘in default’
     sentence be treated as the part of the period
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              already undergone as sentence.

           vii) The Appellant be released forthwith if not
              required in any other case.

          viii) The Appellant shall execute a PR bond in the sum
              of Rs.10000/- to ensure his availability in case an
              Appeal against the acquittal is preferred. Such
              bond shall be executed within a period of one
              month from his release from prison.

          ix) The Appeal is disposed of.

           x) In view of disposal of the Appeal, the connected
              applications are also disposed of.




(RANJITSINHA RAJA BHONSALE, J.)       (SARANG V. KOTWAL, J.)