Bombay High Court Reviews Appeals Against Conviction Under Section 302 IPC for Murder; Dying Declaration and Eye-Witness Testimony Under Scrutiny. Multiple Stab Wounds and Common Intention Alleged as Accused No.1 and No.2 Held Deceased While Accused No.3 Inflicted Fatal Injuries.

Criminal appeals against conviction under Section 302 read with Section 34 of the Indian Penal Code

Appellants sought to set aside the judgment and order of conviction dated 12 February 2013 and the sentence of life imprisonment imposed by the Additional Sessions Judge, Greater Bombay

Appellants were convicted for the murder of Mohd. Yusuf based on allegations of common intention; they felt aggrieved and dissatisfied by the conviction and sentence

Additional Sessions Judge, Greater Bombay, convicted the appellants under Section 302 read with Section 34 IPC on 12 February 2013 and sentenced them to rigorous imprisonment for life and fine of Rs.5,000 each, in default simple imprisonment for six months

Whether the prosecution proved the guilt of the appellants beyond reasonable doubt under Section 302 read with Section 34 IPC Whether the dying declaration recorded by the Investigating Officer was reliable and admissible Whether the testimony of three eye-witnesses, who knew the accused, was credible and sufficient to establish common intention Whether the medical evidence established homicidal death and cause of death

Appellants contended they were falsely implicated and challenged the credibility of prosecution witnesses, pointing out that many persons were present but none intervened Prosecution relied on undisputed homicidal death, medical evidence of stab wounds, dying declaration naming assailants, and eye-witness accounts of common intention

The court was examining whether common intention under Section 34 IPC could be inferred from the acts of the accused and whether the dying declaration and eye-witness testimony proved the charge beyond reasonable doubt.

Feeling aggrieved with and dissatisfied by the impugned judgment and order of conviction passed by Additional Sessions Judge, Greater Bombay, on 12th February, 2013, convicting the appellants of the offence punishable under Section 302 of Indian Penal Code and sentencing them to suffer life imprisonment, present appeals have been preferred. The factum of death of the deceased as a homicidal one has not been disputed by the defence. He categorically opined that cause of death was due to stab wound (unnatural). The prosecution case revolves around the testimonies of mainly three eye-witnesses, viz. PW 1 – Mohammad Gufran Dawood Shaikh; PW 3 – Mohammad Moosa Shaikh; and PW 6 – Mohammad Akram Jamir Shaikh coupled with a statement recorded by the Investigating Officer, which was treated as a dying declaration of the deceased, which is at Exhibit- 41.

On 13 October 2010, the incident of assault on the deceased occurred near Gol Building, Andheri-Sahar Road. The deceased was admitted to Cooper Hospital and his statement was recorded by PW10 PI B.B. Rane, leading to registration of CR No.578/2010 under Sections 307, 504 read with 34 IPC. The deceased died on 14 October 2010 (text mentions 14.10.2020 apparent typo), and Section 302 IPC was added. Accused were arrested, and a weapon was recovered under Section 27 of the Indian Evidence Act at the instance of accused No.3. Charge-sheet was filed before the 10th Metropolitan Magistrate, Andheri. The case was committed to the Court of Sessions. Charge was framed under Section 302 read with 34 IPC on 20 December 2011. The Additional Sessions Judge, Greater Bombay, convicted the appellants on 12 February 2013 and sentenced them to life imprisonment. Criminal appeals were filed in 2014. The Bombay High Court heard the appeals, reserved judgment on 03 February 2022, and pronounced judgment on 04 May 2022 (though the final operative part is not included in the provided excerpt).

• Indian Penal Code, 1860: Section 302, Section 34, Section 307, Section 504
• Code of Criminal Procedure, 1973: Section 313
• Indian Evidence Act, 1872: Section 27