1. Criminal appeal against conviction under Section 302 IPC for murder — Conviction based on eye witness, dying declaration, and recovery of knife. (Para 1 , 3 , 5 )
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HIGH COURT OF BOMBAY
HON'BLE SHRI JUSTICE S. V. KOTWALHON'BLE SHRI JUSTICE SHYAM C. CHANDAK
RIYAZ @ BABLU SATTAR MUJAWAR – Appellant
Versus
STATE OF MAHARASHTRA – Respondent
IA/2654/2025
1. Criminal appeal against conviction under Section 302 IPC for murder — Conviction based on eye witness, dying declaration, and recovery of knife. (Para 1 , 3 , 5 )
2. Appellant challenged reliability of eye witness, dying declaration, and recovery; State argued evidence sufficient for conviction. (Para 18 , 19 , 20 )
3. Appeal allowed — Conviction set aside — Appellant acquitted — Ordered to be released forthwith. (Para 28 , 29 )
When the witness was detained by police and treated as suspect, the testimony cannot form basis of conviction. (Para 22 , 23 )
If medical evidence shows severe injuries causing unconsciousness and time gap, the dying declaration cannot be believed. (Para 24 , 25 )
If the panch witness admits that the accused's statement was pre-prepared by police, the recovery becomes doubtful. (Para 26 )
It is a circumstance in favour of the accused and weakens the prosecution case when arrest is soon after incident. (Para 27 )
ORAL JUDGMENT : (PER : SARANG V. KOTWAL, J.) :-
1) The Appellant has challenged the Judgment and Order dated 12/07/2023 passed by the learned Additional Sessions Judge, Thane in Sessions Case No.324/2015. The Appellant was convicted for commission of offence punishable under Section 302 of the Indian Penal Code, 1860. He was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default to suffer simple imprisonment for six months.He was granted set-off under Section 428 of Cr.P.C. The Appellant was arrested on 17/04/2015 and since then, he is in custody.
2) Heard Ms. Jahnavi Karnik, learned Counsel for the Appellant and Ms. Supriya Kak, learned APP for the Respondent – State.
3) The prosecution case is that, the Appellant and the deceased - Rohit were close friends. There was a quarrel between them on 13/04/2015. According to the prosecution case, on 16/04/2015, at around 11:15 p.m., the Appellant stabbed Rohit multiple times near Mumbra Railway Station Ticket House, causing his death. Thus, he committed the murder of the deceased Rohit. The FIR was lodged by Rohit’s brother – Roshan Jadhav at around 02:00 a.m. in the night between 16th and 17th April, 2015. The Appellant was also arrested in the night itself. The statements of the witnesses were recorded. The Spot Panchanama was conducted. The dead body was sent for post-mortem examination. At the instance of the Appellant, a knife was recovered. At the time of the Appellant’s arrest, his clothes were seized. The articles were sent for chemical analysis. At the end of the investigation, the charge-sheet was filed. The case was committed to the Court of Session.
4) During the trial, the prosecution examined 11 witnesses including Rohit’s brother – Roshan Jadhav who was the first informant, one Brijesh Jaiswal as the eye witness, the Medical Officer who had conducted the post-mortem examination, the Panchas, the Police Officers including the Investigating Officers. The defence of the Appellant was of total denial.
5) The learned Judge relied on the evidence of the eye witness, the evidence of the first informant who had allegedly heard the deceased mentioning the name of the Appellant as the assailant and the evidence of recovery of knife. Based on this evidence, the learned Judge convicted and sentenced the Appellant as mentioned earlier.
6) PW-1 Mr. Brijesh Jaiswal is an important witness and in fact the prosecution has examined only this witness as an eye witness. He deposed that he was residing in Mumbra since 20 years before his deposition. He had a paan stall in front of Mumbra Railway Station. His business hours were between 07:00 a.m. upto 03:00 p.m. and then from 06:00 p.m. to 11:00 p.m. On 16/04/2015, when he was about to close his stall around 11:00 p.m., he saw that a fight was going on between the Appellant and the deceased Rohit. He went there to separate the quarrel. The Appellant prevented him from intervening in the quarrel. PW-1 then stepped aside. A mob had gathered there watching the fight. He deposed that the Appellant and Rohit were assaulting each other. The Appellant pulled out a knife from his pocket and gave a blow of knife on Rohit’s stomach. He inflicted two to three more blows on Rohit’s stomach who then fell down. The Appellant ran away from the spot. Blood started oozing from the injuries. After witnessing this, PW-1 went home. In the same night, the police made inquiries with PW-1 and recorded his statement. He could not identify the knife in the Court.In the cross-examination, he had stated that his house was at a five minutes walking distance from Mumbra Station bridge. When Rohit fell on the ground, within five to ten minutes, PW-1 had reached his home. Till about 12:15 a.m., he was in the house. According to him, there were fifteen to thirty persons watching the incident. He did not know who helped Rohit after the incident and how he was taken to the hospital in the ambulance. He further stated that when Rohit
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