As per case facts, the appellant was convicted of murder after assaulting the deceased with a knife for refusing money. The deceased suffered severe stab injuries and died two days ...
19-APEAL-1377-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1377 OF 2023
WITH
INTERIM APPLICATION NO. 557 OF 2024
AND
INTERIM APPLICATION NO. 3847 PF 2025
IN
CRIMINAL APPEAL NO. 1377 OF 2023
Ejaj Urf Pintya Sagir Ahmed Ansari
Age – 22 Years, Occupation – NIL,
Residing at Gayatri Nagar, Near Baba Hotel,
Opposite Gayatri Nagar Police Chowki,
Bhiwandi.
(At present lodged at Nashik Road Central
Prison, Nashik) ...Appellant/Applicant
Versus
The State of Maharashtra
(Through Shantinagar Police Station,
Bhivandi, Crim No. I-144 of 2019) ...Respondent
Mr. Ajit M. Savagave, Appointed Advocate for the Appellant.
Mr. Ashish Satpute, A.P.P for the Respondent-State.
Wakodikar 1/31
RUPALI
RAJESH
WAKODIKAR
Digitally
signed by
RUPALI
RAJESH
WAKODIKAR
Date:
2026.04.08
18:55:42
+0530
19-APEAL-1377-2023.doc
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 30
th
MARCH, 2026
JUDGMENT (PER SARANG V. KOTWAL, J):
1. The appellant has challenged the Judgment and Order
dated 6
th
March, 2023 passed by the learned Sessions Judge, Thane in
Sessions Case No. 499 of 2019. The appellant was convicted for the
commission of offence punishable under Section 302 of the Indian
Penal Code (‘IPC’ for short) and was sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs.10,000/-,in default, to
suffer further simple imprisonment for six months. The appellant was
in custody since 1
st
August, 2019. He was granted set-off under
Section 428 of the Criminal Procedure Code (‘Cr.P.C’ for short).
2. Heard learned Counsel Mr. Ajit M. Savagave for the
appellant and Mr. Ashish Satpute, learned APP for the State.
Wakodikar 2/31
19-APEAL-1377-2023.doc
3. The prosecution case in brief is as follows :
The deceased Mohammed Faiji Kamrul Khan Sayyad @
Amirul Hassan Kamrul Hassan (‘Mohammed Faiji’ for short) was
knowing the appellant. On 7
th
February, 2019, there were some guests
visiting Mohammed Faiji, therefore, he and his brother Abbas went to
a nearby hotel to bring some snacks. While they were going towards
hotel, the appellant and his friend Salman stopped them. The
appellant demanded some money from them. Mohammed Faiji
refused. He and his brother - Abbas went to the hotel, bought the
snacks and started returning to their house. On the way, they were
again confronted by the appellant and Salman. This time, there was
some quarrel. The appellant was angry as Mohammed Faiji had not
given him money. The appellant took out a knife and assaulted
Mohammed Faiji. Mohammed Faiji tried to evade the blow. It fell on
his waist. It was a deep injury. The appellant gave another blow on
his buttock, near anus causing one more injury. The injured -
Mohammed Faiji fell down. The appellant and his friend threatened
others who tried to help the injured. After sometime, the appellant
Wakodikar 3/31
19-APEAL-1377-2023.doc
and Salman went away from the spot. The injured – Mohammed Faiji
was taken to IGM Hospital, Bhivandi and then was shifted to Civil
Hospital, Thane. The Police were informed. The Police Officer who
reached Civil Hospital, Thane, recorded statement of the injured –
Mohammed Faiji. It was treated as the F.I.R. C.R.No. I-144 of 2019
was registered at Shanti Nagar Police Station, Bhivandi. The injured –
Mohammed Faiji survived for two more days. He underwent surgical
procedures, but he succumbed to his injuries on 9
th
February, 2019. In
the meantime, the investigation had started. The spot panchanama
was recorded. Statements of various witnesses were recorded. The
appellant and his friend had absconded. Salman was never found and
he did not face the trial. The appellant was arrested on 1
st
August,
2019.
According to the prosecution case, the knife was recovered
at his instance on 6
th
August, 2019 from under a tile near a public
toilet. The seized articles were sent for chemical analysis. At the
conclusion of investigation, the chargesheet was filed and the case was
committed to the Court of Sessions, Thane.
Wakodikar 4/31
19-APEAL-1377-2023.doc
4. During trial, the prosecution examined 13 witnesses
including the eye-witnesses, the Medical Officer, the Police officer
who had recorded the Dying Declaration, the Medical Officer who
had given her endorsement on that Dying Declaration, the constable
who had carried the seized articles to F.S.L and finally, the
Investigating Officers. The defence of the appellant was of total
denial.
5. The learned Sessions Judge relied on the evidence of the
Dying Declaration and the direct evidence of the three eye-witnesses.
He also relied on the evidence of the recovery of knife. Believing all
these circumstances and direct evidence, the learned Judge recorded
the finding of guilt. He accordingly, convicted and sentenced the
appellant as mentioned above.
6. As mentioned earlier, the Dying Declaration given by the
deceased himself was treated as the F.I.R. In that connection, the
Wakodikar 5/31
19-APEAL-1377-2023.doc
evidence of PW11 – PSI Tukaram Sakunde and PW13 – Dr. Anjali
Pimple was important.
PW11 - PSI Sakunde deposed that at the relevant time, he
was attached to Shanti Nagar Police Station, Bhiwandi. On 7
th
February, 2019, he received an information that injured was admitted
to Civil Hospital, Thane. He got that information from the brother of
the deceased. He went to the Civil Hospital, Thane at 7.15 p.m. He
met the Medical Officer and asked him whether the injured –
Mohammed Faiji was in a position to give statement. The Medical
Officer examined the injured and opined that he was conscious and
was in a position to give his statement. Accordingly, the Medical
Officer gave the endorsement and signed it. After that, PW11
recorded statement of the injured – Mohammed Faiji in the presence
of the Medical Officer. PW11 wrote it in his own handwriting. He
and the injured signed that statement. PW11 further deposed that the
injured had stated that on 7
th
February, 2019, at about 1.30 p.m., he
and his brother - Abbas were walking towards Mama Hotel to buy
Wakodikar 6/31
19-APEAL-1377-2023.doc
some snacks. The appellant asked for Rs.200/-. The appellant and his
friend - Salman scuffled with Mohammed Faiji and his brother. They
also abused. Then the appellant removed a knife from his pocket. He
was about to give a blow on Mohammed Faiji’s stomach. Mohammed
Faiji turned to save himself, therefore, the blow fell on the left side of
his waist. Because of that, he was about to sit down. The appellant
again gave another blow on his back side and caused grievous injury.
The appellant then threatened the people gathered there and ran
away. The said statement is produced on record at ‘Exhibit–52’.
The actual Dying Declaration is slightly different. In that
statement, it is mentioned that the appellant had demanded Rs.200/-
while the deceased and his brother - Abbas were going towards Mama
Hotel. After that, they went to the hotel, they bought snacks and tea
and when they were returning home, again the appellant and Salman
confronted them, and then assaulted the deceased. The injured was
taken to IGM Hospital and then was shifted to Civil Hospital, Thane.
The said statement bears signature of Mohammed Faiji and also the
Wakodikar 7/31
19-APEAL-1377-2023.doc
endorsement of PW13 – Dr.Pimple. The endorsement mentions that
the patient was conscious and able to give his statement. The
endorsement shows the time as 9.40 p.m. on 7
th
February, 2019.
PW11 – PSI Sakunde has further deposed that after
recording the statement, he came back to Shanti Nagar Police Station
and registered an offence vide C.R.No. 144 of 2019 under Section
307 r/w Section 34 of IPC. He conducted the spot panchanama. The
spot was shown by Mohammed Faiji’s brother – Abbas. He collected
the blood mixed soil and other soil from the spot. The spot
panchanama was already produced on record at Exhibit-35 through
the panch for spot panchanama, PW6 – Zakir Abdul Hamid Ansari.
PW11 then seized clothes of the deceased in the morning of 8
th
February, 2019 under a panchanama. He identified those clothes in
the Court.
During investigation, he had recorded the statements of
Abbas and other witnesses. He proved the contradictions in the
Wakodikar 8/31
19-APEAL-1377-2023.doc
statement of PW9 – Halimabi Mohammed Hafiz Shaikh who was the
hotel owner, but had turned hostile. The contradictory portion in her
Police statement which was different from her deposition was proved
by this witness PW11 and it is brought on record at ‘Exhibit – 55’.
This particular portion from the Police statement of PW9 - Halimabi
supports the prosecution case. On 10
th
February, 2019, PW11 was
informed by the J.J.Marg Police Station that Mohammed Faiji has
succumbed to his injuries, therefore, Section 302 of IPC was added to
the offence. The appellant had absconded.
In the cross-examination, it is stated that he received an
information about the incident at about 2.00 to 2.30 p.m. on 7
th
February, 2019, but he had not taken any entry in the Station Diary,
however, he had given memo to the brother of the injured for taking
him to the hospital. He met the Medical Officers at the Civil Hospital,
Thane and discussed with them for about 10 minutes. When he
reached the hospital, at that time, the injured was conscious. At that
time, the injured was given first aid. But, he had not undergone any
Wakodikar 9/31
19-APEAL-1377-2023.doc
surgery. He denied the suggestion that since the injured was serious,
he was not in a position to give his statement. He denied the
suggestion that the statement was recorded as per the version of Abbas
and that Abbas was told to make false signature of the deceased on the
Dying Declaration. He denied the suggestion that PW9 – Halimabi
Shaikh had not stated portion marked A in her statement.
7. PW13-Dr.Anjali Pimple is an important witness as far as
the Dying Declaration is concerned. She deposed that she was posted
at Civil Hospital, Thane as Medical Officer and was on duty in the
Casualty Department on 7
th
February, 2019. At about 4.10 p.m., on
that day, the mother of the deceased brought him to the hospital. He
was admitted in surgical ward. The Police had come to record his
statement. At that time, the patient was conscious and was able to
give his statement. She examined the patient and accordingly she had
given her opinion that the Police Officer could record his statement as
the patient was conscious and was able to give his statement. The
Police Officer recorded his statement in her presence. Then she made
Wakodikar 10/31
19-APEAL-1377-2023.doc
an endorsement on the statement and signed below that endorsement.
The endorsement was
“patient is conscious and able to give his
statement”
. She identified the endorsement and her signature on the
Dying Declaration. She had noticed that the injured had suffered
grievous injuries.
In the cross-examination, she denied the suggestion that
when the patient was brought to the hospital, he was unconscious.
She denied the suggestion that she had not personally examined the
injuries of the patient and that because of the grievous injuries, he was
unable to speak. She did not remember the name of the Police Officer
who had recorded the statement of the patient. The patient was
referred from IGM Hospital, Bhivandi.
8. Apart from this important evidence of the Dying
Declaration, there is also direct evidence of eye-witnesses. PW1-Abbas
Kamarul Hassan Sayyad was the brother of the deceased. He deposed
that the incident took place on 7
th
February, 2019 at about 1.30 p.m.,
Wakodikar 11/31
19-APEAL-1377-2023.doc
on the road in front of Mama Hotel. At that time, they had some
guests and therefore, PW1 and his brother Mohammed Faiji had gone
to Mama Hotel to get snacks. On the way, they met the appellant and
Salman. The appellant demanded Rs.200/- as a loan. But, PW1’s
brother had declined by saying that he did not have any money. Then
they went to the hotel to get snacks and while returning home, they
again met the appellant and Salman. At that time, the appellant
confronted the deceased. He took out a knife from his pant pocket
and gave a blow on the waist of Mohammed Faiji. Mohammed Faiji
tried to evade the assault. He was trying to sit down. At that time,
the appellant gave the second blow on the buttock. PW1 tried to
rescue his brother, but the appellant and Salman assaulted him with
kicks and fist blows. The others from the hotel came there. The
appellant threatened them with a knife. The appellant and Salman
then ran away. PW1 and others took the injured Mohammed Faiji to
IGM Hospital, Bhivandi. He was given first aid, and then on the
doctor’s advice, he was taken to the Civil Hospital. He was kept there
for about 2 to 3 hours and then he was sent to J.J.Hospital. He
Wakodikar 12/31
19-APEAL-1377-2023.doc
succumbed to his injuries in J.J.Hospital on 9
th
February, 2019. The
Police recorded his statement. The Judicial Magistrate, First Class,
Bhivandi also recorded his statement under Section 164 of the
Criminal Procedure Code. It is produced on record at ‘Exhibit-19’.
He identified the appellant in the Court.
In the cross-examination, he stated that the appellant and
PW1’s family used to reside in the same area and therefore, they were
knowing each other. On that day, Mohammed Faiji’s brother-in-law
Ali Hassan and Hassan had visited their house as guests. The hotel
was close to their house. There were many other shops near the hotel.
He denied that he had told the Magistrate that he went to the spot on
hearing the commotion. He emphasized that when his brother’s
statement was recorded, he was in a position to give statement. He
had not undergone any surgery before his statement was recorded.
He denied the suggestion that since the appellant was externed outside
Bhivandi, he was residing at Malegaon and Solapur. There was some
incident on the previous night between PW1, his brother –
Wakodikar 13/31
19-APEAL-1377-2023.doc
Mohammed Faiji on one side and the appellant and Salman on the
other. There was some scuffle and therefore, their guests had come to
meet him. But, PW1 had not suffered any injury in that scuffle.
Though he identified the knife in the Court, he denied the suggestion
that it was like any other knife available in the market.
In his statement recorded under Section 164 of Cr.P.C,
there was some contradiction as to exactly at what point he came on
the scene, but this contradiction is not specifically brought to his
notice and no explanation was sought from him. In any case, his
evidence and his statement under Section 164 of Cr.P.C were
consistent, as far as the actual assault committed by the appellant on
the deceased was concerned.
9. PW2 - Hassan Abbas had visited the house of the deceased
at the time of the incident. He deposed that the deceased and his
brother had gone to get snacks for PW2. He was standing outside the
house. He saw that the appellant and Salman were assaulting the
Wakodikar 14/31
19-APEAL-1377-2023.doc
deceased and Abbas (PW1) with kicks and fist blows. Then the
appellant removed a knife and assaulted the deceased who fell down.
PW2 went there to save the deceased, but the appellant threatened
him with knife and ran away. PW1 then took the deceased to IGM
Hospital. His statement was also recorded by the Magistrate under
Section 164 of Cr.P.C. It is produced on record at ‘Exhibit-21’. He
identified the weapon and the appellant.
PW2, in his cross-examination stated that the hotel was
very near to the house of the deceased. There were many shops
around that hotel. He had also gone to the Civil Hospital. At one
place, he admitted that the deceased had gone alone to the hotel to
bring snacks. He did not know about the externment order against
the appellant. He denied the suggestion that some unknown person
had assaulted the deceased.
In his statement recorded under Section 164 of Cr.P.C., he
deposed that the deceased had gone to the hotel to return the glasses
Wakodikar 15/31
19-APEAL-1377-2023.doc
in which he had brought tea. He heard some commotion, he came
out. By that time, Mohammed Faiji had fallen down. Mohammed
Faiji told him that the appellant had assaulted him. Again this
important contradiction was not brought to the notice of PW2 and he
was not given an opportunity to explain that fact.
10. PW4 – Zarina Begum was examined as another eye-
witness, but she had not actually seen the assualt. She had reached the
spot immediately. She deposed that at about 1.30 p.m., on 7
th
February, 2019, PW1 and the deceased had gone to Mama Hotel. Her
husband had shouted that the appellant was assaulting the deceased,
therefore, she ran to the spot of incident. Many people had gathered
there. The appellant was threatening them with the knife. The
people ran away. She asked her son Mohammed Faiji as to what had
happened. At that time, he informed her that the appellant had
assaulted him. Thus, this would be the oral Dying Declaration made
by the deceased to this witness i.e. his own mother. She deposed
about the deceased being taken to IGM Hospital and then to Civil
Wakodikar 16/31
19-APEAL-1377-2023.doc
Hospital, Thane. He was then taken to J.J.Hospital where he
succumbed to his injuries.
In the cross-examination, she deposed that when the Police
recorded Mohammed Faiji’s statement, till that time, no surgery was
performed on him. She denied the suggestion that the deceased was
creating terror in the area, therefore, some unknown person had
assaulted him.
11. PW3 – P.C. Bharat Murkute and PW7 - Waman Bhoir
were carriers of articles to F.S.L. PW3 had carried the articles on 20
th
February, 2019 and PW7 had carried the articles on 25
th
February,
2019, however, the C.A.reports in this case are not very material and
therefore, their evidence was also not of much significance. PW6 –
Zakir Abdul was a panch for spot panchanama. It is produced on
record at ‘Exhibit-35’. It mentions that the samples of blood stained
and simple soil from the spot were seized. There is hardly any dispute
about the spot of incident. The eye-witnesses as well as the deceased
Wakodikar 17/31
19-APEAL-1377-2023.doc
have spoken about the spot of incident. The C.A.report produced on
record also shows the presence of human blood on the soil seized
from the spot. The clothes of the deceased shows presence of blood
of “A” group.
12. PW9 – Halimabi was the hotel owner. She was declared
hostile, as mentioned earlier, but her contradiction from her Police
statement was put to her by the prosecution and it was proved
through the Police Officer who had recorded her statement. In that
portion, she had described the incident about the appellant assaulting
the deceased with knife.
13. PW5 – Dr.Shailendra Anande is an important witness. He
had conducted Post Mortem examination. The Post Mortem report is
produced on record at ‘Exhibit-32’. He deposed that the deceased
was admitted in J.J.Hospital on 8
th
February, 2019 and he died on 9
th
February, 2019. The dead body was identified by the brother of the
deceased. On examination, he found ten injuries on the dead body.
Wakodikar 18/31
19-APEAL-1377-2023.doc
There were multiple linear abrasions over epigastric region and on the
left knee. There were other surgical wounds, but there were two
important wounds caused by the assault. They were as follows :
(i) A stab wound of the size 5 cm x 1 cm above left side
of glutean. It was cavity deep.
(ii) Stab wound of the size 2 cm x 1 cm x 0.5 cm, above
anterior superior iliac spine. The margins were clean cut
with infiltration of blood.
The internal examination showed that the bowel loops
were oedemataus and dusky. The rectum was mobilized. There were
sutures over posterior wall of lower 1/3rd of rectum and there was
evidence of diversion loop. Thus, the intestines were damaged. He
deposed that those two injuries were possible due to sharp and
pointed weapon. The probable cause of death was mentioned as
“
Evidence of multiple stab injuries. However, opinion reserved for
accessory examination report.
” The Histopathology report produced
by the prosecution during the trial did not show presence of any
poison and thus, the cause of death was directly related to the stab
wounds.
Wakodikar 19/31
19-APEAL-1377-2023.doc
14. PW8 - PSI Karanjwane had supervised the Inquest
Panchanama and had taken steps to conduct the Post Mortem
examination. PW10 – Jiyauddin Janmohammad Shah was the panch
in whose presence the appellant had given a statement leading to
recovery of knife on 6
th
August, 2019. The said memorandum and
panchanama are produced on record at ‘Exhibit-49’ and ‘Exhibit-50’.
He was also a panch for the spot panchanama. He deposed that on 6
th
August, 2019, at around 5.30 p.m., Police called him to the Police
Station. The appellant showed willingness to show the place where he
had concealed the knife. The statement was recorded. It is produced
on record during trial at ‘Exhibit-49’. The appellant led them to a
public toilet near Gayatri Nagar Police Chowky. The appellant
removed the knife kept in a plastic bag under a black tile. The blade
of the knife was about 15 cm long. It was seized. The panchanama
was produced on record at ‘Exhibit-50’.
In the cross-examination, he accepted that he could not
read or write Marathi, but he denied the suggestion that he did not
Wakodikar 20/31
19-APEAL-1377-2023.doc
know what was mentioned in the panchanama because it was in
Marathi.
15. PW12 - Kirankumar Kabadi, Police Inspector, was the
investigating officer. He deposed that from 12
th
February, 2019 to 21
st
February, 2019, the investigation was carried by the Police Inspector
Bagga and then PW12 took over the investigation. He deposed that
he had recorded statements of the witnesses. The appellant was
arrested on 30
th
July, 2019, within the jurisdiction of Thane City
Police Station. The Police Officer, Thane City Police Station gave
custody of the appellant to PW12 on 1
st
August, 2019. The Arrest
Panchanama was conducted. PW12 supervised the recovery of knife
at the instance of the appellant. He made arrangement to record the
statements of the witnesses under Section 164 of Cr.P.C. At the
conclusion of the investigation, he filed the chargesheet.
In the cross-examination, he stated that an externment
order was passed against the appellant. He admitted that the public
toilet from where the knife was recovered was a public place and was
Wakodikar 21/31
19-APEAL-1377-2023.doc
accessible to all. He denied the suggestion that because of the terror
created by the deceased, some unknown person had assaulted him.
This, in short, is the evidence led by the prosecution.
There is nothing incriminating in the C.A. reports against
the appellant. The weapon recovered at the instance of the appellant
was not sent for chemical examination.
Submissions of Mr. Ajit M. Savagave, learned Counsel appearing for
the appellant :
16. The prosecution has not proved the evidence of written
Dying Declaration beyond reasonable doubt. PW11 and PW13 are
not consistent. PW11 had stated that he had taken the endorsement
of the doctor before the recording of the Dying Declaration, whereas
PW13 had stated that she had given the endorsement after the Dying
Declaration was recorded. He submitted that, neither of these two
witnesses has stated that, the deceased was in a fit mental condition to
give the statement. Merely stating that he was conscious and was in a
position to give statement was not enough. Considering that the
Wakodikar 22/31
19-APEAL-1377-2023.doc
deceased had suffered grievous injuries causing heavy blood loss, it
was not possible to believe that he would be in a position to give the
Dying Declaration. Therefore, the evidence of Dying Declaration is
required to be discarded. He further submitted that the endorsement
on the Dying Declaration is not clear because the endorsement does
not mention as to when the recording of Dying Declaration started
and when it ended.
17. PW1, PW2 and PW4 claimed themselves to be the eye-
witnesses, but their evidence is not consistent. Their evidence
compared to their own statements recorded under Section 164 of
Cr.P.C. is also not consistent. Therefore, it is doubtful, as to whether
they had seen the incident at all. The prosecution did not examine
any independent witness though there is evidence to show that the
spot of incident was surrounded by many shops and that it was in a
crowded locality. There is no other incriminating circumstance against
the appellant.
Wakodikar 23/31
19-APEAL-1377-2023.doc
18. Learned Counsel, in the alternative, submitted that even
otherwise, considering the nature of incident, the offence will not fall
within the meaning of Section 300 of IPC punishable under Section
302 of IPC. At the highest, it would be an offence of culpable
homicide not amounting to murder, and at the highest, only
knowledge can be attributed to the appellant. He submitted that the
incident had occurred in a sudden quarrel, therefore, it falls within
exception (iv) to Section 300 of IPC.
Submissions of Mr. Ashish Satpute, learned A.P.P for the Respondent-
State.
19. Learned A.P.P, on the other hand submitted that the
prosecution has proved its case beyond reasonable doubt. The learned
Sessions Judge has considered all the circumstances as well as the
direct evidence to reach a proper conclusion of guilt. He submitted
that there was nothing wrong in recording of the Dying Declaration.
All the procedure was properly followed. The evidence of PW11 and
PW13 was important. There is no cross-examination that these
witnesses were not satisfied that the deceased was in a fit mental
Wakodikar 24/31
19-APEAL-1377-2023.doc
condition to give a statement. Learned A.P.P further submitted that
PW13 is an independent witness as she was a medical officer and there
was no reason for her to give a false evidence. The Dying Declaration
was recorded in her presence. She submitted that inconsistency in the
evidence of PW1, PW2 and PW4 is absolutely minor. It cannot be
doubted that PW1 had accompanied the deceased. He was with the
deceased right from the inception of the incident till the deceased was
taken to the hospital. The evidence of hotel owner was recorded
though she did not support the prosecution case. The prosecution has
proved her contradictory Police statement which supports the
prosecution case. In addition, there is recovery of knife at the instance
of the Appellant and hence, there is strong evidence against the
Appellant and hence, the prosecution has proved its case beyond
reasonable doubt.
REASONS AND CONCLUSION
20. As far as the written Dying Declaration is concerned, we
did not find any infirmity in the procedure mentioned by PW11 and
Wakodikar 25/31
19-APEAL-1377-2023.doc
PW13 which we have referred to hereinabove. From the evidence of
PW11 it is quite clear that he himself was satisfied that the deceased
was in a position to give a proper statement and accordingly he has
recorded the statement. The Dying Declaration gives sufficient details
regarding the incident. The Police Officer had no way of knowing the
incident, till he was told by the deceased himself through his Dying
Declaration. PW13 was present throughout the recording of the
Dying Declaration and she had given her endorsement on the Dying
Declaration. Though API Sakunde has stated that the endorsement
was given before recording of the Dying Declaration, it does not make
much difference in the context of the present case because PW13 has
stated that she was present throughout the recording of the Dying
Declaration and had given her endorsement. She has deposed that,
she had examined the patient before permitting PW11 to record the
Dying Declaration, therefore, we find that the evidence of the PW11
and PW13 is consistent and the Dying Declaration can be accepted as
a true version of the deceased.
It is important to note that, the deceased had survived for
Wakodikar 26/31
19-APEAL-1377-2023.doc
about two days. The death was not immediately on 7
th
February,
2019. Only after he was taken to J.J.Hospital, surgery was performed
on him. Therefore, it cannot be said that the deceased was not in a
position to give his statement. Infact, the Dying Declaration also bears
his signature. There is no reason to disbelieve that the signature was
scribed by the deceased himself. Therefore, in this background, the
evidence of the Dying Declaration can safely be accepted.
21. The Dying Declaration is supported by the direct evidence
particularly, that of PW1. He has described the incident in detail
which is consistent with the Dying Declaration. He has described the
incident exactly in the same manner. He has also described how the
appellant had given his Dying Declaration. His version is also
supported by the medical evidence given by PW5 - Dr.Anande
mentioning the stab injuries in his Post Mortem notes. We do not find
any infirmity in the evidence of PW1. As far as PW2 is concerned,
from his statement recorded under Section 164 of Cr.P.C, we find that
there are material contradictions and there are strong indications that
Wakodikar 27/31
19-APEAL-1377-2023.doc
he could not have seen the actual assault. He had reached only after
the assault had taken place as per his version in the statement recorded
under Section 164 of Cr.P.C. His statement recorded under Section
164 of Cr.P.C mentions that the deceased himself has told him that the
appellant had assaulted him. By that time, PW2 had reached the spot,
the deceased had already fallen down on the ground. Therefore, it is
doubtful, as to whether PW2 could have seen the actual assault. We
do not find it safe to rely on the evidence of PW2 and therefore, his
evidence is required to be discarded.
22. As far as PW4, the mother of the deceased is concerned,
we find her to be a truthful witness. Though she has described the
incident, but she only got to know about that incident. She has
deposed that she had run to the spot because her husband had shouted
that the appellant had assaulted the deceased. By the time, she had
reached the spot, people had already gathered on the spot and the
appellant was threatening them. After that, she asked the deceased as
to what had happened and then, the deceased had told her about the
Wakodikar 28/31
19-APEAL-1377-2023.doc
incident. Thus, her evidence is important not because she is an eye-
witness for the incident as she had not seen the actual assault, but she
had reached the spot soon after, and her evidence is important because
the deceased had told her about the incident. It would amount to oral
Dying Declaration given by the deceased to her. Therefore, we find
that, she is a truthful witness on the point of oral Dying Declaration.
Thus, the prosecution has proved the written Dying Declaration, the
evidence of the eye-witness – PW1 and the oral Dying Declaration
stated by the PW4. Their evidence is supported by the medical
evidence given by PW5 who had conducted the Post Mortem
examination. All these pieces of evidence taken together showed that
prosecution has proved its case beyond reasonable doubt.
23. As far as recovery of weapon is concerned, we are not
inclined to give much importance to that circumstance, firstly because
the Investigating Officer has admitted that it was recovered from the
place which was accessible to all and secondly, it was recovered almost
after six months from the date of incident. Moreover, the weapon
was not sent for chemical analysis and therefore, in this case, on both
Wakodikar 29/31
19-APEAL-1377-2023.doc
these counts, the weapon could not be connected with the offence. In
any case, we have already observed that the prosecution has proved its
case based on the other evidence.
24. We are also cannot accept the submissions of the learned
Counsel for the appellant that it would be a lesser offence and not the
offence punishable under Section 302 of IPC. Firstly, the incident
does not fall within any of the exceptions mentioned under Section
300 of IPC. It can certainly not be termed as a sudden quarrel. The
incident took place in parts. In the first part, when the deceased was
going to the hotel, the appellant and his companion stopped him and
asked for money. The deceased refused. When he was returning back,
then again, he was confronted by the appellant and his companion and
this time, the appellant removed a knife and gave not only one blow,
but the second blow as well. The first blow was aimed at the
abdomen, but only because the deceased turned to save himself, it fell
on the waist. But, even then, it was a forceful blow piercing the
intestine, the second blow was equally forceful. Therefore, there was
preparation, there was pre-meditation and there was execution of his
Wakodikar 30/31
19-APEAL-1377-2023.doc
intention by giving forceful blows on the vital parts. The Post Mortem
notes show that the deceased had to undergo major surgery, but he
could not be saved. Thus, all the ingredients of Section 300 are
proved in this case.
25. Looking at the incident, the nature of injuries, the
intentions and the knowledge attributed to the appellant, it cannot be
said that it is a lesser offence and not the offence punishable under
Section 302 of IPC.
26. With the result, we find no reason to interfere in the
impugned Judgment and Order dated 6
th
March, 2023. Accordingly,
the appeal is dismissed.
27. In view of the dismissal of the appeal, the connected
applications are also disposed of accordingly.
SADESH D. PATIL, J. SARANG V. KOTWAL, J.
Wakodikar 31/31
Legal Notes
Add a Note....