Victim Names Roommate as Attacker in Three Dying Declarations Before Dying 13 Days Later; Bombay High Court Upholds Murder Conviction Despite Delayed Death
Dying Declaration Recorded by Police Without Magistrate or Separate Fitness Certificate; Bombay High Court Says It Can Still Sustain Murder Conviction
Facts
The appeal was filed by Tahir Khan, challenging his conviction by the Sessions Court at Daman under Section 302 of the Indian Penal Code. He had been sentenced to rigorous imprisonment for life with a fine of ₹500.
According to the prosecution, Tahir and deceased Hasruddin Sarafuddin Shaikh were acquainted, worked as fruit sellers and shared a room in Surat. On 21 May 2013, they travelled to Daman and consumed liquor near Girish Bar, Kachigaon. At about 2:00 a.m., Tahir allegedly asked the deceased to carry a bag containing wine and beer. When he refused, Tahir allegedly attacked him repeatedly with a knife and fled.
The deceased was found injured the next morning and taken to Government Hospital, Marward. An FIR was initially registered under Sections 307 and 504 IPC. He was later transferred to J.J. Hospital, Mumbai, where he died on 4 June 2013, following which the offence was converted to Section 302 IPC.
There was no eyewitness to the actual assault. The prosecution case rested principally upon multiple statements made by the deceased identifying Tahir as the assailant.
Issues
The principal questions before the High Court were whether the deceased’s oral and written statements could legally and reliably constitute dying declarations; whether the absence of a Magistrate and separate medical fitness certificate weakened them; whether death from septicemia almost two weeks after the assault broke the causal connection; whether discrepancies in the injuries created reasonable doubt; and whether the prosecution had reliably established the identity of Tahir as the assailant.
Appellant’s Arguments
The appellant argued that the deceased was semi-conscious when his statement was recorded and there was no doctor’s specific certification that he was fit to make a statement. Further, the statement was not recorded by a Magistrate.
It was also argued that the deceased died considerably later and therefore the statement made shortly after the assault should not automatically be treated as a dying declaration.
The defence highlighted a substantial discrepancy in the medical evidence: the initial hospital record referred to approximately 15 injuries, whereas the post-mortem recorded 59 injuries, raising doubt as to what happened during the intervening treatment period.
The appellant further disputed the recovery of the knife, questioned the CDR evidence and argued that the mobile numbers relied upon by the prosecution were registered in the names of other persons. He also raised an identity dispute because the deceased referred to the assailant as “Tahir”, “Tahir Kunnu Pathan” or “Tahir Pathan”, whereas the appellant identified himself as “Tahir Khan”.
Respondents’ Arguments
The prosecution maintained that there were three consistent dying declarations—statements made to the waiter, a Head Constable and the Investigating Officer.
It argued that the absence of a separate medical fitness certificate was not fatal and that the deceased was conscious and capable of speaking.
The prosecution also submitted that the difference in the number of injuries arose because the initial medical examination concentrated on the prominent injuries requiring immediate treatment, while the post-mortem comprehensively recorded external and internal injuries.
Analysis of the Law
The High Court relied upon Laxman v. State of Maharashtra for the principle that a doctor’s certification regarding fitness is a rule of caution rather than an inflexible legal requirement.
A dying declaration also need not necessarily be recorded by a Magistrate. What ultimately matters is whether the Court is satisfied that the declarant was mentally fit and that the statement was voluntary and truthful.
The Court further considered Irfan @ Naka v. State of Uttar Pradesh, which identifies relevant factors for testing a dying declaration, including whether it was made at the earliest opportunity, whether there was tutoring or prompting, whether the declarant could observe the incident and whether multiple declarations remained consistent.
Significantly, the Court held that expectation of imminent death is not a prerequisite under Section 32 of the Evidence Act. If an injured person’s statement concerns the cause or circumstances of the transaction resulting in death, the statement may subsequently acquire the character of a dying declaration.
Precedent Analysis
The Court applied Laxman to reject the contention that the absence of a separate doctor’s fitness certificate automatically rendered the declaration inadmissible.
Irfan @ Naka was applied to test the consistency, voluntariness and credibility of the multiple dying declarations.
The Court relied on Kans Raj v. State of Punjab for the proposition that Section 32 does not require the deceased to have made the statement while expecting imminent death.
On causation, the Court relied upon Maniklal Sahu v. State of Chhattisgarh, particularly the principle that where fatal injuries lead naturally to septicemia or another complication, the assailant does not escape liability merely because death occurs after an interval.
Court’s Reasoning
Multiple Dying Declarations Were Consistent
The first oral account was made when the injured man was found near Girish Bar. He stated that he had come from Surat with his friend Tahir, they drank together, and Tahir attacked him with a knife after he refused to carry a bag.
He subsequently gave another account to Head Constable Kiranbhai Patel, again identifying Tahir and describing how the altercation over carrying the liquor bag led to the stabbing.
The Investigating Officer also recorded a written statement in hospital in which the deceased again identified his room partner Tahir Khan Pathan and described the attack.
The High Court found the three versions consistent, cogent and materially free from contradiction, holding them truthful, voluntary and worthy of credence.
No Magistrate or Separate Fitness Certificate Was Necessary
Although the deceased was described as semi-conscious when initially examined, the treating doctor stated that he was able to speak and give his statement.
Accordingly, neither the absence of a Magistrate nor the absence of a separate formal fitness certificate was sufficient to invalidate the dying declaration.
Delayed Death Did Not Destroy the Dying Declaration
The Court rejected the contention that the statement could not be treated as a dying declaration because the victim survived for several days.
Section 32 does not require a person to believe that death is imminent when making the statement. The critical requirement is the connection between the statement and the cause or circumstances of the eventual death.
Septicemia Did Not Break the Chain of Causation
The post-mortem doctor stated that death resulted from “septicemia with perforative peritonitis” arising from complications following the incised stab injuries.
The stab and incised injuries were considered serious and sufficient in the ordinary course of nature to cause death. There was no independent intervening cause breaking the causal chain.
Thus, the fact that death occurred later from medical complications did not absolve the person who inflicted the original fatal injuries.
15 Versus 59 Injuries Did Not Create Reasonable Doubt
The Court acknowledged that the discrepancy created some suspicion. However, it accepted the explanation that the first medical examination occurred when immediate treatment was required and may have recorded only prominent injuries.
In the absence of material showing that the deceased suffered another assault while hospitalised, the discrepancy was insufficient to destroy the prosecution case.
Identity Defence Failed
The High Court rejected the argument that references to “Tahir”, “Tahir Pathan” or “Tahir Kunnu Pathan” created doubt because the appellant described himself as “Tahir Khan”.
The identity objection had not been developed during the prosecution evidence and essentially surfaced in the appellant’s Section 313 statement. The Court found no cogent material supporting the theory of mistaken identity or false implication.
Dying Declaration Alone Can Sustain Conviction
Most importantly, the Court reiterated that a truthful, voluntary and reliable dying declaration can itself constitute the basis of conviction without an eyewitness.
Having found all three declarations mutually consistent and trustworthy, the Court held that the Sessions Court correctly treated the case as one resting principally on the deceased’s dying declarations.
Conclusion
The Bombay High Court found no reason to interfere with Tahir Khan’s conviction under Section 302 IPC.
Despite the absence of an eyewitness, the deceased had repeatedly and consistently identified Tahir as the person who stabbed him. Neither the lack of a Magistrate-recorded declaration nor the absence of a separate medical fitness certificate rendered those statements unreliable. The subsequent death from septicemia and perforative peritonitis was medically linked to the stab injuries and therefore did not break the chain of causation.
The criminal appeal was dismissed and the life sentence was upheld.
Case Details
Case: Tahir Khan S/o Tasbbar Khan Pathan v. State of Maharashtra & Anr.
Court: Bombay High Court, Criminal Appellate Jurisdiction
Case No.: Criminal Appeal No. 234 of 2018
Citation: 2026:BHC-AS:38669-DB
Coram: Justice Manish Pitale & Justice Shreeram V. Shirsat
Reserved: 24 June 2026
Pronounced: 22 September 2026
Result: Appeal dismissed; conviction under Section 302 IPC and life imprisonment upheld.
