Delhi District Court
Uber Mohammad vs The State on 28 February, 2015
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CA No. 01/15
Uber Mohammad
S/o Mohd. Iliyash
R/o House No. 2263,
Katra Chandi Wali
Turkman Gate,
Delhi
(Presently kept in Special Home)
Through his natural guarian/Mother
Shajahan Begum .....Appellant
Versus
The State
(Govt of NCT of Delhi) .... Respondents
O R D E R
1. Vide this Order I shall dispose off the present appeal preferred by JCL . Brief facts are: The prosecution case, in brief, is that on 12.05.2013 at about 05:00 P.M, at Abdul Khair Marg, near Bilal Masjid, Turkam Gate, Delhi within the jurisdiction of PS Chandni Mahal, JCL(hereinafter referred to as 'UM', as it is the case of CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 1 of 21 2 Juvenile Justice Act), in furtherance of his common intention with his adult associate, committed murder of Mohd. Mahmood by stabbing knife in his chest and thereby caused his death.
JCL(hereinafter referred to as 'UM') was declared juvenile by this Board vide order dated 21.06.2013. Notice for the offence U/s 302/34 IPC was given to the juvenile. JCL did not admit his involvement in the alleged offence and claimed inquiry.
The prosecution examined total seven witnesses. PW1 is Mohd. Asim, eye witness to the incident. He deposed that on 12.05.2013 at about 05:30 pm, he was going to Karol Bagh and when he reached near Bilal Mosque, Abdul Khair Marg, he saw that JCL was causing injuries to his uncle. He saw JCL giving knife blow on CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 2 of 21 3 the chest of his uncle Mohd.
Mahmood(since deceased). He deposed that father of JCL namely Mohd. Iliyash was also present at the spot. He stated that when he rushed towards his uncle, JCL and his father ran away from there. He stated that blood was oozing out from the chest of his uncle. He deposed that he shifted his uncle t o LNJP hospital with the help of his brother Mohd. Asif on his two wheelar scooter. He further deposed about recording of his statement Ex PW1/A by the police and showing of place of occurrence to the police. PW1 correctly identified the JCL in the Board and identified the weapon of offence i.e knife vide ExP1.
In cross examination, PW1 replied that he had seen the incident from a distance of 2025 feet. He admitted that CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 3 of 21 4 place of occurrence is a crowded area. He voluntarily stated that there was not much rush at the time of incident. He stated that public persons had gathered at the spot but no one came forward to help them. He stated that he called his brother through some public person. He stated that police came at hospital. He denied the suggestion that he was not present at the spot. He further denied the suggestion that no such incident had occurred or caused by juvenile Uber.
PW2 is Asif, younger brother of complainant/PW1 Mohd. Asim. He deposed that one Sunday at about 0505:30 p.m, he saw his uncle Mohd. Mahmood lying over a vehicle in injured condition. His brother Mohd. Asim was already there, who told him that JCL had stabbed on the chest of his uncle with CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 4 of 21 5 knife. He further deposed that they took their injured uncle at LNJP hospital, where he died after 45 days. PW2 identified JCL.
In cross examination, PW2 replied that he did not hear any noise when his uncle was stabbed by JCL. When he came out from his house, he saw Asim shouting that uncle had been stabbed. He stated that first they took his uncle to hospital and then called the police. He replied that public persons had gathered at the spot during incident.
PW3 is Dr. Ms. Anju. She proved the postmortem report No. 454/13, dated 17.05.2013 of deceased Mohd. Mahmood vide ExPW3/A. She deposed that the cause of death was due to hemorrhagic shock consequent upon penetrating injuries to the chest, caused by sharp CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 5 of 21 6 cutting weapon. She further deposed about handing over of dead body alongwith 17 inquest papers and postmortem report in original plus one Diagram sheet ExPW3/C to the IO. PW3 also examined the weapon of offence and opined that the injury sustained by deceased could be possible by the said weapon examined and any other weapon similar to it.
In cross examination, PW3 replied that the stab injury to the chest could be possible if somebody attacked from behind. She voluntarily stated that the severity of injury would not be the same.
PW4 is SI Balwant. He deposed that on 12.05.2013 on receipt of DD No. 19A, he reached at the spot of occurrence, however, no eye witness met him there. CA NO. 01/15
Uber Ahmed Vs. State(GNCT) 6 of 21 7 Thereafter, he reached at LNJP hospital and obtained MLC of injured Mohd.
Mahmood who was under treatment. He deposed that no public witness met him even in the hospital. He further deposed about calling of crime team at the spot, inspection and photography of spot by crime team and collecting of earth control and blood sample from the spot. He deposed that he again went to LNJP hospital and recorded the statement of PW1 Mohd. Asim. He further deposed about registration of case and preparing of site plan at the instance of complainant. He deposed about apprehension of JCL from his house and recovery of knife from his house. He further deposed about recording of statement of injured Mohd.
Mahmood(since deceased). PW4 correctly CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 7 of 21 8 identified the JCL as well as case property including knife, used in commission of offence vide ExP1 to P5.
In cross examination, PW4 stated that he had asked public persons to join the investigation but none had agreed. He replied that Mohd. Asim was the eye witness to the incident who told that deceased was stabbed by the JCL. He denied the suggestion that knife was not recovered from the house of JCL. He further denied the suggestion that Mohd. Asim and Asif were the planted witness and they were not eye witness to the incident.
PW5 is Jahangir. He deposed about recording of statement of deceased Moyhd. Mahmood by police in his presence.
PW6 is 2nd IO Inspector Vinod. He CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 8 of 21 9 deposed about preparing the inquest papers of deceased Mohd. Mahmood and handing over of dead body to his relatives. He further deposed about collecting of PM report, sending of exhibits to FSL and collecting of FSL result vide ExPW6/F. He further deposed about sending of weapon of offence to doctor, forensic science for subsequent opinion and collecting the same vide Ex PW3/B. PW6 correctly identified the JCL.
In cross examination, PW6 admitted that weapon of offence was not recovered in his presence.
PW7 is Dr. Rajandeep Singh Bali. He stated that on 14.05.2013 at about 09:00 p.m, after examination, he declared patient Mohd. Mahmood as fit for statement vide MLC ExPW7/A. In cross examination, PW7 replied CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 9 of 21 10 that after seeing improvement in the vitals(pulse rate, BP and SpO2, GCS) of patient Mohd. Mahmood, he declared him firt for statement.
In his statement recorded U/s 281 Cr.P.C, JCL pleaded false implication. He did not examine any witness in favour of his defence.
2. Vide judgment dated 27.11.14 the JCL (hereinafter referred to as 'UM') was convicted U/s 302 IPC and vide order dated 04.12.2014 JCL was ordered to be kept at Special Home(Majnu Ka Tila) for 2 years subject to review.
3. It is against the said order the JCL('UM') has approached this court on various grounds:
a) That the Juvenile Justice Board has grossly erred in convicting the JCL('UM') U/s 302 IPC, since it was a case of sudden quarrel which resulted in the JCL allegedly inflicting a blow to the deceased in the heat of moment. JCL therefore could not be attributed with the intention requisite for culpable homocide amounting to murder.
CA NO. 01/15
Uber Ahmed Vs. State(GNCT) 10 of 21 11
b) That the fact of the case also suggests that despite having opportunity the JCL('UM') had not repeated the act of stabbing and only one blow was given. Therefore he could not be convicted for the offence U/s 302 IPC.
c) That it is the case of prosecution itself that JCL('UM') had not planned the act and incident had taken place at the spur of moment and injury was given upon the chest of the deceased.
Therefore JCL('UM') at its best said to have the knowledge that his act is likely to cause death, but could not be attributed with the intention of causing such bodily injury which caused the death of the deceased.
d) That the prosecution had failed to produce the dropped witnesses whose testimonies were essential to the decision of the present case and the Juvenile Justice Board has grossly erred in not considering the version of the child in conflict with the law who had given a fair explanation of the incident and in view of the same no offence U/s 302 IPC is made out against the JCL('UM').
e) That the sentence imposed upon the JCL('UM') is highly excessive since it had come on record that the JCL('UM') has no previous criminal history or involvement in any case till CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 11 of 21 12 date and there was no likelihood of his engaging in criminal activity in future also.
f) That the Juvenile Justice Board also erred in ordering 2 years of observation of JCL('UM') in special home which was highly excessive in nature, as the offence at the most could be punishable U/s 304(II) IPC.
g) That during the pendency of the inquiry the JCL('UM') was admitted in Government Boys Secondary School at Jama Masjid and his detention at Special Home has discontinued his studies and Juvenile Justice Board also did not take into account the fact that the mother of the JCL('UM') had taken care of him while he was on bail and no offence was repeated by the JCL('UM') during that period and sending him to Special Home will not serve the purpose of rehabilitation rather it would have an adverse effect on his carrier.
3. Therefore it is stated that the judgment/order dated 27.11.14 and 04.12.2014 passed by Juvenile Justice Board be set aside.
4. I have heard Ld. counsel for the appellant Sh. Sunil Ahuja and Ld. Additional PP for the State Sh. Mohd. Iqrar and perused the record. Counsel for appellant has relied upon following CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 12 of 21 13 judgments:
1. 1984 CRI L.J 478
2. 2002[3] JCC 1737
3. 2002[3] JCC 1742
4. 2001 II AD(Cr.) DHC 225
5. From the testimony of the witnesses examined by the prosecution during the trial namely PW1 Mohd. Asim read as a whole including his cross examination it has been clearly established by the prosecution regarding the presence of the accused at the spot on the date of incident i.e 12.05.2013, the manner of incident, his identity is not disputed as he was previously known to the deceased as well as PW1 and that JCL('UM') after stabbing the deceased Mohd. Mehamood had run away from the spot. Nothing has come out in his cross examination which could show that the PW1 was not a trustworthy witness or that he has been later on introduced by the prosecution to strengthen its case.
6. Though it has come in his cross examination that public persons had gathered at the spot, but he has explained in his cross examination that public persons were not coming near CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 13 of 21 14 the spot. There is nothing unnatural about the same as the public apathy in such kind of incident is well known, as nobody wants to be involved in the police case for various reasons.
7. Testimony of PW1 is corroborated by the testimony of PW2 who has stated that he had taken the deceased alongwith the PW1 on his scooter to LNJP hospital. MLC ExPW7/A also shows that the deceased had been admitted into LNJP hospital by PW1 which also corroborates the testimonies of PW1 and PW2 in this regard. PW3 is Ms. Anju Rani, Sr. Resident, Department of Forensic Science, Maulana Azad Medical College. She after postmortem has given the cause of death as due to hemorrhage and shock consequent upon penetrating injuries to the chest as injury no. 1 i.e injury caused to chest of the deceased was sufficient to cause death in ordinary course of nature and said the injuries were found antemortem. She also opined that the injury could have been caused by the knife produced before her or similar to it.
8. The first IO i.e PW4 SI Balwant who had first gone to the spot on receipt of DD No. 19A with regard to incident ExPW4/A has also deposed when he reached the spot he came to know that the injured had been removed to LNJP hospital, one CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 14 of 21 15 Constable was found at the spot, he went there and obtained the MLC of Mohd. Mehmood who was injured at that time. He came back to the spot and called the crime team there and seized the specimens from the spot and thereafter he prepared rukka and got the FIR registered and thereafter he again went to the spot where he seized the clothes of deceased and thereafter recorded the statement of witnesses and on 14.05.2013 he apprehended the JCL('UM') and recorded the version of JC vide memo EPW4/F, who got recovered one knife from his house which was seized vide memo ExPW4/G. Recovery of knife has been specifically proved by PW4 SI Balwant Singh. Nothing has come out in his cross examination which could show that the said knife was planted.
9. In his cross examination a suggestion was given by the JCL('UM') in which it was stated that it was correct the knife was recovered from his house, which also shows even the defence admits that the knife was got recovered by him from his house. This also shows that the recovery of knife has been satisfactorily explained. Further the Juvenile Justice Board had rightly rejected the dying declaration of the deceased which is CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 15 of 21 16 ExPW5/A, as IO had ample opportunity to get the dying declaration ExPW5/A recorded by the Magistrate or by the Doctor, as there was ample time available with him for this purpose and despite that the dying declaration was not recorded by the IO through the concerned Magistrate or by the Doctor. It has also been rightly observed by JJB that no evidence has been brought on the record that the deceased was illiterate, therefore he could not put his signatures on the dying declaration as stated. It is also not clear whether the thumb impression on the said document was of left hand or right hand thumb impression of the deceased.
10.So in these circumstances, the dying declaration of the deceased appears to have been recorded under suspicious circumstances and it was not safe to rely upon the same to convict the JCL('UM') on the basis of the same. However, from the testimony of the complainant which is corroborated by the other witness as discussed above the prosecution has been able to establish that it was the JCL ('UM') who had inflicted knife injuries upon the deceased which resulted into his death.
11.Now adverting to the arguments of counsel for the JCL('UM') that it was the case of sudden fight and the JCL('UM') had no CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 16 of 21 17 intention to cause death of the deceased.
12.I have gone through the record. JCL('UM') in his statement U/s 281 Cr.PC has not given any explanation under what circumstances the incident took place. He should have given his version when the entire prosecution case was put to him while recording his statement U/s 281 Cr.P.C. He has only stated in his statement that the prosecution witnesses were interested witnesses and they had falsely deposed against him and he had also not chose to lead his defence evidence.
Though in his version he has stated that the deceased used to nag him and abuse him when he used to pass through the Gali and has stated that at the time of incident the deceased had abused him and was talking filthy language with him, but that does not prove there was any sudden fight between the JCL('UM') and the deceased. Mere abusing or talking filthy language with the JCL('UM') cannot be said to have triggered certain fight as claimed by the counsel for JCL('UM'). The sudden fight could have only triggered if both of them would have exchanged hot words and there was no premeditation on the part of the JCL('UM') in igniting the fight. No evidence has come that deceased barring abuses or saying filthy words had CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 17 of 21 18 done anything further in triggering the fight in question.
13.In any case, it is not the question of sudden fight as deceased as per the version of the child had been saying filthy things and had been giving abuses to him earlier also, so it cannot be said that passing of filthy words and abuses on particular day gave rise to sudden fight, therefore the said defence is not available to the JCL('UM').
14.However, arguments of Ld. Counsel for the appellant that the present case does not fall U/s 302 IPC appears to be correct, as there is only one stab injury given on the chest of the deceased as per postmortem report which was 2 x 2 cm on the centre of the chest. Though the stab injury was found to be quite deep as it entered the pleural cavity, but the fact remains that the deceased was at the mercy of the appellant and he only gave one injury to the deceased that too on the vital part of his body i.e chest. The JCL('UM') though not fully mature, but even the child of his age can be attributed with the intention or knowledge i.e by causing such a bodily injury on such a vital part of any person that too on an old ailing person could cause his death. In any case, deceased was already carrying knife with him at the time of incident, as it is not the CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 18 of 21 19 case of defence that he had picked the knife from nearby lying around or from any other person. Therefore it shows that the JCL('UM') was already carrying knife with him and thereafter he stabbed the deceased with the said knife on his vital part i.e on chest causing very deep injury resulted into his death. In these circumstances, the JCL('UM') could be attributed with the necessary intention for causing such body injury is likely to cause death, as it is not the case of defence that the said injury had been caused accidentally, or that the JCL('UM') was intending to cause injury on some other part of body, but accidentally it was caused on his chest.
15.It is also not the case of the defence that the said injury had been caused unintentionally. From the entire evidence lead on record it is proved that JCL('UM') had intention of causing the very injury which was ultimately turned on the body of the deceased and none else. JCL had caused stab injury with the full blow of the knife on the chest of the deceased. Therefore he could be said to have intention of causing such bodily injury as was likely to cause death of the deceased. Though it cannot be said that he had intention of causing such bodily injury, which was sufficient to cause death in ordinary course CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 19 of 21 20 of nature. In the present case only one stab blow was given by him which was quite deep, thereafter he ran away from the spot, therefore the conviction of the JCL('UM') is modified to Section 304 partI IPC instead of Section 302 IPC as held by the Juvenile Justice Board.
16.Regarding the sentencing part, counsel for appellant had vehmentally argued that the order of JJB sending the JCL('UM') to be kept him in Special Home, Majnu Ka Tilla for 2 years subject to review is highly excessive in nature. After perusal of the entire record including order of JJB, it has been rightly observed by the JJB that the reformation and rehabilitation of the JCL('UM') can be a very long drawn process through institutionalized inculcation of good moral values, psychological counseling for sound mental equilibrium and vocational training/educational courses and therefore it was ordered that it was not conducive for mental growth and development of the juvenile to send him back to the vitiated atmosphere in which JCL committed the offence.
17.Considering the age of Juvenile and the atmosphere in which he committed offence and his tender age, it has been rightly observed by the JJB that he has to be kept away from the CA NO. 01/15 Uber Ahmed Vs. State(GNCT) 20 of 21 21 vitiated atmosphere so that good morals and psychological counseling could be imparted to him. Therefore it seems that the said order has been passed in the overall interest of JCL('UM') and there is no reason for this court to differ with the same. Appeal stands disposed off with these observations.
18.TCR be sent back alongwith the copy of this order to the Ld. Trial Court.
19. Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 28.02.2015 Special Judge,
CBI03 (PC Act)
Delhi
CA NO. 01/15
Uber Ahmed Vs. State(GNCT) 21 of 21