Bombay High Court
Abid Khan @ Baba S/O Majeed Khan Pathan vs The State Of Mah. Thr. Pso, Amdapur on 6 October, 2025
2025:BHC-NAG:10414-DB
Judgment
484 apeal304.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.304 OF 2006
Abid Khan alias Baba s/o Majeeb Khan Pathan,
aged about 23 years, occupation - labourer,
r/o village - Undri within Police Station
Amdapur, tahsil Chikhli, district Buldhana. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through Police Station Officer Amdapur,
district Buldhana. ..... Respondent.
Shri Aadil Anwar, Counsel and Mrs.Poonam Moon,
Advocate for the Appellant.
Shri Nikhil Joshi, Additional Public Prosecutor for the
State.
CORAM : URMILA JOSHI-PHALKE &
NANDESH S.DESHPANDE, JJ.
CLOSED ON : 22/09/2025
PRONOUNCED ON : 06/10/2025
JUDGMENT ( Per : Urmila Joshi-Phalke)
1. By this appeal, the appellant (accused) has
challenged judgment and order dated 16.5.2006 passed
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by learned Additional Sessions Judge, Buldana (learned
Judge of the trial court), in Sessions Trial No.79/2003.
2. By the said judgment impugned in the appeal,
the accused is convicted for offence punishable under
Section 302 of the IPC and sentenced to undergo
imprisonment for life and to pay fine Rs.500/-, in default,
to undergo rigorous imprisonment for three months.
3. Facts of the prosecution case in a nutshell are
as under:
Santosh Sudhakar Tayade (the deceased) was
auto-rickshaw driver. On 26.4.2003, at about 5:30 to
6:00 pm, there was altercation of words between him and
the accused on account of act of the accused while
shaking tobacco. The dust entered into the eyes of the
deceased. During altercation of the words, the deceased
was assaulted by the accused due to which he fell down,
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sustained injuries and succumbed to the injuries. As per
the allegations, the accused assaulted the deceased by
fists and kick blows. On the basis the said report, the
police registered the crime against the accused and other
two co-accused.
4. After registration of the crime, wheels of
investigation started rotating. During the investigation,
the investigating officer has drawn inquest panchanama,
spot panchanama, seized clothes of the deceased as well
as the accused, collected postmortem notes, forwarded
incriminating articles to Chemical Analyzer, and after
completion of the investigation, submitted chargesheet
against the accused.
5. As the offence under Section 302 of the IPC
was exclusively triable by the court of sessions, learned
Magistrate committed the case to the Sessions Court. The
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Sessions Court framed charge vide Exh.13. The accused
pleaded not guilty and claimed to be tried.
6. In support of the prosecution case, the
prosecution examined in all 8 witnesses, they are as
follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 Suresh Bhaurao Nikalje, informant and 21
eyewitness,
2 Gajanan Vishwanath Tonde, eyewitness, 24
3 Dr.Uddhay Nathuji Deokar, Medical 28
Officer,
Constable,
7 Shyam Murlidhar Yadav, eyewitness, and 36
8 Dattu Deoram Palve, Investigating 39
Officer.
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7. Besides the oral evidence, the prosecution
placed reliance on the report Exh.22, FIR Exh.23,
postmortem notes Exh.34, inquest panchanama Exh.40,
spot panchanama Exh.42, requisition to CA Exh.44, and
CA Report Exh.45.
8. On the basis of the above evidence, the
prosecution claimed that the prosecution has proved its
case beyond reasonable doubt. All incriminating
evidence is put to the accused in order to obtain his
explanation regarding evidence appearing against him by
recording his statement under Section 313 of the CrPC.
9. Learned Judge of the trial court appreciated
the evidence and held that the accused has caused death
of the deceased and thereby held him guilty of the offence
under Sectoin 302 of the IPC and sentenced him as the
aforesaid.
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10. Being aggrieved and dissatisfied with the same,
the present appeal is preferred by the accused on the
ground that the entire evidence reflects that during
sudden fight and sudden quarrel, the deceased sustained
injuries and succumbed to the injuries. There was no
intention to cause death of the deceased. The
subsequent act of the accused was not taken into
consideration. The act of the accused covers under
Exception-4 to Sectoin 300 of the IPC and, therefore, the
judgment impugned deserves to be quashed and set aside.
11. Heard learned counsel Shri Aadil Anwar for the
accused and learned Additional Public Prosecutor Shri
Nikhil Joshi for the State. With their able assistance, I
have gone through the entire matrial record and evidence
adduced during the trial.
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12. Learned counsel for the accused submitted that
the entire evidence of eyewitnesses, especially PW1
Suresh Nikalje, PW2 Gajanan Tonde, PW4 Eknath Gandhe,
and PW7 Shyam Yadav, is consistent to show that during
sudden fight and sudden quarrel, the alleged incident has
occurred and there was a scuffle between the deceased
and the accused and during that scuffle, the deceased
sustained injuries. Thus, the incident covers under
Exception-4 to Section 300 of the IPC. There was no
intention to cause death of the deceased. Only knowledge
is attributable to the accused. In view of that, at the most,
the offence falls under Section 304-II of the IPC. In view
of that, the appeal deserves to be allowed and the
sentence imposed upon the accused be reduced.
13. In support of his contentions, learned counsel
for the accused placed reliance on Ankush Shivaji Gaikwad
vs. State of Maharashtra, reported in (2013)6 SCC 770.
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14. Learned Additional Public Prosecutor for the
State strongly opposed the said contentions and submitted
that the evidence on record shows that the accused has
extended his act by assaulting the deceased though he fell
down on the ground, which is sufficient to show his
intention to cause the death of the deceased. The case
does not cover under Section 304-II of the IPC, but it is
culpable homicide amounting to murder and, therefore,
the appeal being devoid of merits is liable to be dismissed.
15. In support of his contentions, learned
Additional Public Prosecutor for the State placed reliance
on Narayan Yadav vs. State of Chhattisgarh, reported in
AIR 2025 SC 3805, and Anbazhagan vs. State represented
by the Inspector of Police, reported in 2023 Cri.L.J. 3979.
16. As regards the homicidal death of the deceased is
concerned, the material evidence adduced by the
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prosecution is the evidence of Medical Officer PW3
Dr.Uddhay Deokar, who has initially, immediately after the
incident, examined the deceased. As per his evidence, the
incident took place at about 5:00 to 6:00 pm. He was in
the hospital. The deceased was brought to his hospital.
On examining him, it revealed to him that he has
convulsions and, therefore, he advised to him to
Khamgaon or Buldhana.
17. Another witness, examined by the prosecution,
is PW6 Dr.Ganesh Rathod, who conducted the postmortem
examination on the dead body of the deceased. As per his
evidence, on 27.4.2023, he was working as Medical
Officer at General Hospital, Buldhana. On that day, he
performed autopsy on the dead body of the deceased. On
external examination, has not found any external injury.
On internal examination, he found following injuries:
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i) abdomen cavity was found containing blood
of about 1/4th liter;
ii) mesentry of large intestine was having
laceration 3 x 3 cm, and
iii) laceration of posterior lobe of liver right
side 2 x 2 cm.
According to him, the cause of death is due to
shock due to injury to liver. Accordingly, he prepared
postmortem report, which is at Exh.34. He further stated
that if a forceful blow of kick is given to abdomen, such
type of injury to liver can be possible.
His cross examination shows that there was no
external injury on the body of the deceased. The police
have not made any query to him in respect of the death of
the deceased. The death of the deceased might have
occurred within 12-14 hours before starting of the
postmortem examination. He further admitted that if a
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person falls on any blunt object, such type of injury to liver
may be possible.
Thus, an attempt was made that deceased has
sustained injuries due to the fall.
18. Now, it is well settled that evidence of Medical
Officer is not only an opinion evidence but also his
evidence is in the nature of direct evidence as he had an
opportunity to see injuries on the persons of the deceased.
19. A medical witness, who performs a postmortem
examination, is a witness of fact though he also gives an
opinion on certain aspects of the case. This proposition of
law has been stated by the Hon'ble Apex Court in the case
of Smt.Nagindra Bala Mitraand vs. Sunil Chandra Roy and
another, reported at 1960 SCR (3) 1 wherein the Hon'ble
Apex Court observed that "the value of a medical witness
is not merely a check upon the testimony of eyewitnesses;
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it is also independent testimony, because it may establish
certain facts, quite apart from the other oral evidence. If a
person is shot, at close range, the marks of tatooing found
by the medical witness would show that the range was
small, quite apart from any other opinion of his. Similarly,
fractures of bones, depth and size of the wounds would
show the nature of the weapon used. It is wrong to say
that it is only opinion evidence; it is often direct evidence
of the facts found upon the victim's person."
Thus, the testimony of medical witness is very
important and it can be safely accepted. The evidence
adduced by the Medical Officer corroborated by the
inquest panchanama shows that the deceased died
homicidal death.
20. The Hon'ble Apex Court in the case of Anuj
Singh @ Ramanuj Singh @ Seth Singh vs. The State of
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Bihar, reported in 2022 Live Law (SC) 402 dealt with the
evidentiary value of the medical evidence and observed
that the evidentiary value of a medical witness is very
crucial to corroborate the case of prosecution and it is not
merely a check upon testimony of eyewitnesses, it is also
independent testimony, because it may establish certain
facts, quite apart from the other oral evidence. It has been
reiterated by this court that the medical evidence adduced
by the prosecution has great corroborative value as it
proves that the injuries could have been caused in the
manner alleged.
21. Thus, the prosecution evidence, as far as the
evidence of PW6 Dr.Ganesh Rathod is concerned,
sufficiently shows that the prosecution has succeeded in
proving that the death of the deceased is homicidal one.
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22. To prove the charge against the accused, that
the accused has caused the death of the deceased, the
prosecution mainly relied upon the direct evidence in the
nature of evidence of eyewitness i.e. PW1 Suresh Nikalje,
PW2 Gajanan Tonde, PW4 Eknath Gandhe, and PW7
Shyam Yadav. The evidence of these witnesses
consistently shows that they are auto-rickshaw drivers on
the day of the incident i.e. on 26.4.2023. The deceased
as well as these eyewitnesses were present near Undri
S.T.Bus Stand. The deceased, PW1 Suresh Nikalje, and
Bandu were sitting in the auto-rickshaws of PW4 Eknath
Gandhe. PW2 Gajanan Tonde, PW4 Eknath Gandhe, and
PW7 Shyam Yadav were standing near the said auto-
rickshaw. At that time, the accused came there and was
rubbing the tobacco on the palm of his hand. He came
near the auto-rickshaw of PW4 Eknath Gandhe and while
shaking the tobacco, dust entered into the eyes of the
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deceased. On that count, there was altercation of the
words between them. They abused each other. The
deceased assaulted the accused by fists blows and,
therefore, the accused pulled the leg of the deceased. At
the relevant time, part portion of the body of the deceased
remained in auto-rickshaw and part body came outside.
Thereafter, the deceased fell down from the auto-rickshaw
and again there was scuffle between them. The accused
assaulted him by fists and kick blows, due to which the
deceased was having giddiness and he fell on the ground
and became unconscious. Immediately, the deceased was
taken to hospital of PW3 Dr.Uddhay Deokar at Undri, but
the said doctor advised to take him to the hospital at
Khamgaon. On the way, the deceased died and, therefore,
they took him first to his house and informed his parents
and, thereafter, they approached the police station and
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PW1 Suresh Nikalje lodged the report, which is at Exh.22
and FIR is at Exh.23.
23. The cross examination of informant and
eyewitness PW1 Suresh Nikalje shows that there were
various shops in front of the spot of the incident where the
alleged incident has taken place. Some minor omissions
are also brought on record. He further admitted that the
said incident has occurred all of a sudden. He knows the
accused since 2-3 years prior to the incident and knew the
deceased as he is of his village. There was no previous
enmity between the accused and the deceased.
Thus, his cross examination shows that
whatever happened was due to sudden fight and sudden
quarrel on account of rubbing tobacco and entering dust
of tobacco into the eyes of the deceased and, therefore,
the quarrel started.
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24. Eyewitness PW2 Gajanan Tonde, has narrated
the similar incident. The said witness stated that when
they were chit-chatting, the accused has shaken tobacco
and dust entered into the eyes of the deceased, on which
there was a quarrel between them and during the scuffle
between them, the accused assaulted the deceased by
kicks and fist blows. The deceased was immediately taken
to hospital of PW3 Dr.Uddhay Deokar at Undri, but the
said doctor advised to take him to the hospital at
Khamgaon and when there were proceeding, the death of
the deceased occurred.
His cross examination also shows that the
alleged incident has occurred on account of the hot
exchange of words as the dust entered into the eyes of the
deceased.
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Thus, his evidence also shows that during
sudden fight and sudden quarrel, there was scuffle
between the accused and the deceased and the accused
assaulted the deceased and the deceased sustained
injuries.
25. The evidence of eyewitness PW4 Eknath
Gandhe is also on the similar line. His cross examination
also shows that there was no previous enmity between the
deceased and the accused. On the contrary, they both are
auto drivers and, therefore, having friendship.
26. Thus, the evidence of eyewitness PW4 Eknath
Gandhe and PW7 Shyam Yadav also shows that there was
neither enmity between the deceased and the accused nor
there was any previous dispute between them. However,
their evidence shows that the alleged incident has taken
place while rubbing the tobacco on palm by the accused
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and dust entered into the eyes of the deceased and,
therefore, quarrel started. During the quarrel, they both
assaulted each other and during the assault, the deceased
sustained injuries and succumbed to the injuries.
PW7 Shyam Yadav has also admitted that prior
to the incident, there was never any quarrel between the
deceased and the accused and there was no enmity
between them.
27. Besides the evidence of eyewitnesses, the
medical evidence is already discussed, which shows that
the death of the deceased is homicidal one.
28. Police Constable PW5 Sahebrao Ingle,
registered the crime on the basis of report filed by
informant and eyewitness PW1 Suresh Nikalje and initial
investigation was also carried out by him. His evidence is
formal in nature. The minor omissions are proved
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through the evidence of Police Constable PW5 Sahebrao
Ingle.
29. Investigating Officer PW8 Dattu Deoram Palve,
has narrated about the investigation carried out by him.
The sum and substance of his evidence is that during
investigation, he visited the alleged spot of the incident,
drawn spot and inquest panchanamas, collected
incriminating articles and forwarded the same to CA. He
also admitted that during the investigation, it revealed to
him that there was no previous enmity between the
accused and the deceased.
Thus, the evidence of the investigating officer
also shows that the alleged incident has taken place
between the deceased and the accused in a sudden fight
and sudden quarrel during the hot exchange of words
between them.
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30. Learned counsel for the accused vehemently
submitted that there was neither intention nor the accused
was having knowledge that this act would cause the death
of the deceased and, therefore, no offence is made out
against the accused. Alternatively, he submitted that even
if it is accepted that the accused has caused the death of
the deceased, as the deceased was assaulted by him, there
was no premeditation, no weapon is used by the accused,
but during scuffle, some injuries are caused to the
deceased and the death of the deceased is caused and,
therefore, the act of the accused covers under the culpable
homicide not amounting to murder. In support of his
contentions, he placed reliance on Ankush Shivaji
Gaikwad vs. State of Maharashtra supra wherein the
Hon'ble Apex Court held that whether the act of accused
would cover under murder or culpable homicide not
amounting to murder. The nature of injury, weapons used,
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and part of body on which injury was inflicted are some of
the considerations which required to be taken into
consideration.
31. On the contrary, learned Additional Public
Prosecutor for the State submitted that the act of the
accused does not cover under Exception-4 to Section 300
of the IPC as he has extended the act and acted in an
unusual manner and assaulted the deceased after he fell
down. Therefore, Exception-4 to Section 300 of the IPC is
not applicable. In support of his contentions, he placed
reliance on the decision in the case of Narayan Yadav vs.
State of Chhattisgarh supra wherein the Hon'ble Apex
Court held that Section 300 Exception-4 of the IPC applies
when death occurs without premeditation in a sudden
fight due to sudden quarrel in hit of passion, provided
offender did not take undue advantage or act in a cruel or
unusual manner. Exception-4 concerns mutual exchange
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of blows of provocation where both parties are partially to
blame. He further placed reliance on Anbazhagan vs.
State represented by the Inspector of Police supra
wherein the Hon'ble Apex Court has considered this aspect
and held that there is fine difference between the two
parts of Section 304 of the IPC. If the act of an accused
person falls within the first two clauses of cases of
culpable homicide as described in Section 299 of the IPC,
it is punishable under the first part of Section 304. If,
however, it falls within the third clause, it is punishable
under the second part of Section 304.
32. Admittedly, scuffle took place between the
accused and the deceased while rubbing tobacco on palm
by the accused and dust entered eyes of the deceased and
on that count, there was hot exchange of words between
them in presence of PW1 Suresh Nikalje, PW2 Gajanan
Tonde, PW4 Eknath Gandhe, and PW7 Shyam Yadav. The
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evidence of these witnesses shows that there was no
previous enmity between the deceased and the accused.
They were friends. There was no previous quarrel or there
was no premeditation on the part of the accused or the
accused has not extended his act either by assaulting the
deceased by any weapon and, therefore, the case covers
under Section 304 of the IPC.
33. Admittedly, three injuries are found on the
person of the deceased i.e. internal injuries. Admittedly,
the deceased has not sustained any external injuries in the
said incident. The injuries sustained are on the abdomen
cavity i.e. on large intestine, which resulted into injury to
liver and death of the deceased is caused.
34. Whether offence is culpable homicide or
murder, it can be seen that the offence of culpable
homicide does not provide any punishment.
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35. The culpable homicide is defined in Section 299
of the Indian Penal Code and it is genus. Whereas, the
murder defined in Section 300 of the Indian Penal Code
and it is specie. Under Section 299 of the Indian Penal
Code, whoever causes death with an intention or
knowledge specified in that section, commits offence of
culpable homicide. However, since culpable homicide is
only genus, it includes two forms; one is a graver offence
which amounts to 'murder' and lesser one which does not
amount to 'murder'. It can be seen that, therefore, though
the offence of culpable homicide is defined, the said
provision does not provide any punishment for that
offence as such and, for the purpose of punishment, the
court has to examine facts and find out whether the
offence falls or does not fall under the definition of
murder under Section 300 of the Indian Penal Code. In
view of this scheme, therefore, every act of homicide falls
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within the definition of culpable homicide under Section
299 of the Indian Penal Code. Section 300 of the Indian
Penal Code on the one hand mentions that a homicide is
murder. However, in that section five exceptions have
been given and these exceptions lay down the
circumstances in which the act causing death is not
murder even though it may have been done with the
intention or knowledge specified in Section 300 of the
Indian Penal Code. Therefore, it has to be seen; (1) what
was the intention or knowledge with which the act was
done and what are circumstances in which it was done,
(2) if it is established that the offence is culpable
homicide, but it does not fall within the definition of
murder and if it falls under any of exceptions to that
section, the offence is punishable under Section 304 of the
Indian Penal Code. Once, it is held that the offence falls
under Section 304 of the Indian Penal Code, the
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punishment differs, depending upon whether the death is
caused with an intention or only with the knowledge and,
therefore, if the element of intention exists, the offence is
punishable under Part-I of Section 304 of the Indian Penal
Code, otherwise, the offence falls under Part-II of Section
304 of the Indian Penal Code.
36. As far as the intention to cause death is
concerned, it can be gathered generally from a
combination of a few or a several circumstances like
nature of the weapon used, whether the weapon was
carried by the accused persons or was picked up from the
spot, whether the blow is aimed at the vital part of the
body, the amount of force employed in causing injury,
whether the act was in course of sudden quarrel or sudden
fight, whether the incident occurs by chance, or whether
there was any premeditation, whether there was any prior
enmity or the deceased was the stranger, whether there
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was any grave or sudden provocation, or whether the
incident was in the hit of passion.
37. By applying these parameters, if the evidence
on record in the present case is assessed, admittedly, no
weapon is used in the said incident. The injuries sustained
by the deceased was on the abdominal portion i.e. liver
and the death is caused. Admittedly, the accused has not
acted in a cruel manner. Whatever happened was in a
sudden fight and in a sudden quarrel. The evidence of
these witnesses shows that hot exchange of words started
as while rubbing the tobacco on palm by the accused and
dust entered into the eyes of the deceased and it was the
deceased who started assaulting the accused and,
therefore, the accused has assaulted the deceased in which
the blow was given on his abdomen which proved to be
fatal and resulted into his death.
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38. Admittedly, intention can be gathered from the
circumstances as the injury caused by the deceased is on
the liver. It can be said that there was a knowledge for the
accused that this act may cause death of the deceased and,
therefore, the case of the accused covers under Exception-
4 to Section 300 of the IPC.
39. A sudden fight and a sudden quarrel is to be
seen from the circumstances.
40. Admittedly, there was a quarrel between the
accused and the deceased on account of rubbing of
tobacco on palm by the accused and entering dust of
tobacco into the eyes of the deceased.
41. The said Exception-4 deals with the case of the
prosecution. Exception-4 to Section 300 of the Indian
Penal Code deals only if there is heat of passion and the
person acts while losing his self control. It deals
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with cases in which a blow may have been struck or some
provocation given in the origin of the dispute. A sudden
fight implies a mutual provocation. The help of the said
Exception-4 can be invoked if the death is caused without
premeditation, in a sudden fight without the offender
having taken undue advantage or acted in a cruel or
unusual manner etc..
42. In the present case, the facts on record show
that there was a sudden quarrel with no premeditation.
The injury sustained by the deceased was on abdominal
portion and no weapon was used by the accused. The
accused has not taken any undue advantage or acted in a
cruel manner.
43. The culpable homicide is defined in Section 299
of the Indian Penal Code. Whereas, the murder is defined
in Section 300 of the Indian Penal Code. The every act of
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homicide falls within the definition of culpable homicide
in Section 299 of the Indian Penal Code. As per Section
300 of the Indian Penal Code, homicide is murder,
however there are five exceptions and in those exceptions
if the circumstances in which the act causing death is not
murder even though it may have been done with the
intention or knowledge specified in Section 300 of the
Indian Penal Code and, therefore, it has to be seen
whether there was intention or knowledge with which the
act was done.
44. Admittedly, in the present case, the quarrel took
place on a simple reason as the dust of tobacco entered
into the eyes of the deceased. Therefore, there was hot
exchange of words between the deceased and the accused
and the deceased started assaulting the accused and,
therefore, the accused assaulted the deceased and blow
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was given on abdominal portion of the deceased, which
proved to be fatal, resulted into death of the deceased.
45. The law is settled that while appreciating the
evidence of witnesses, though witnesses have exaggerated
their versions, the same are not sufficient to discard their
entire evidence. The cumulative effect of the evidence
shows that in a sudden fight and a sudden quarrel, the
accused gave fists and kick blows on the person of the
deceased, which resulted into his death.
46. From the above all circumstances, irresistible
conclusion can be drawn that there was no intention on
the part of the accused to cause death of the deceased,
but, admittedly, he was having knowledge that his act
would result into death of the deceased and, therefore, the
act of the accused falls under Section 304-II of the IPC.
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47. In view of the above discussion, the appeal
deserves to be allowed partly and the judgment and order
impugned convicting the accused under Section 302 of
the IPC and sentencing him to undergo imprisonment for
life and to pay fine Rs.500/-, in default, to undergo
rigorous imprisonment for three months, is to be
modified by sentencing the accused to undergo rigorous
imprisonment for 10 years and to pay fine Rs.500, in
default, to undergo rigorous imprisonment for 3 months
for offence under Section 304-II of the IPC. Hence, we
pass following order:
ORDER
(1) The Criminal Appeal is Allowed Partly.
(2) The judgment and order dated 16.5.2006 passed by
learned Additional Sessions Judge, Buldana in Sessions
Trial No.79/2003 is modified.
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(3) The accused is held to be guilty for offence under
Section 304-II of the IPC and he is sentenced to undergo
rigorous imprisonment for 10 years.
(4) The fine amount is maintained.
(5) The Bail Bonds of the accused stand cancelled.
(6) Appellant/accused is entitled for set off under Section
428 of the Code of Criminal Procedure for which he was
undertrial.
(7) The appellant/accused is already in jail under
committal warrant. He has to undergo the sentence as
aforestated.
(8) The order of this Court and Judgment be
communicated to the Superintendent Central Prison,
Nagpur.
Appeal stands disposed of.
(NANDESH S.DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
!! BrWankhede, PS !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 08/10/2025 17:48:49
