Delhi District Court
State vs Akaram on 8 August, 2023
IN THE COURT OF SH. V. K. BANSAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH-EAST, KARKARDOOMA COURTS, DELHI
SC No. 226/2018
CIS No. DLNE01-002992-2018
State Versus Akram
S/o Nisar Ali,
R/o A-104, New Seelampur,
Delhi.
Also at: Ambedkar Nagar,
Saurikh Rural Kannauj, UP.
FIR No: 57/2018
PS: Seelampur
Under Section : 307 IPC
Date of institution of case : 18.07.2018
Date of reserving for order : 04.08.2023
Date of passing of Judgment : 08.08.2023
JUDGEMENT:
1. The story of the prosecution in brief is that on 07.03.2018 at about 4:00 PM, Shane Ali went to the shop of Naeem being run from the ground floor of house of Amit Morwal. Akram was sitting at the shop, at that time, and Naeem was not present. Shane Ali asked for Shikhar gutkha from Akram but he did not Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 SC No.226/2018 STATE Vs. AKRAM Page 1/20 16:58:59 +0530 pay any heed and used foul language. Thereafter, Shane Ali and Akram grappled with each other. They were separated by the public persons. Shane Ali went back. While Shane Ali was passing in front of shop of Naeem, Akram again abused him, on which, Shane Ali hit him and Akram gave a knife blow on the neck of Shane Ali. Shane Ali was removed to the hospital. The public persons gathered there and overpowered Akram. PCR was informed. Accused Akram was handed over to the police. The knife was seized. After completion of the investigation, charge- sheet was filed. Ld. MM after complying with the provisions of section 208 CrPC committed the case to the Sessions court as the offence punishable under section 307 IPC is exclusively triable by the Sessions court. Accused was charged for the offence punishable under section 307 IPC to which he pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
2. The prosecution in order to prove its case examined 18 witnesses. Amit Morwal was examined as PW1. He claims himself to be the eye witness and stated that he was present in the street near his house at about 3.00 or 4.00 PM. He was the owner of the grocery shop which is being run by Naeem on rent. Akram was present at the shop of Naeem and Naeem was not there. He heard the noise of quarrel and rushed to the shop. He saw that Akram and Shane Ali were quarreling with each other. Shane Ali used to work in a godown located in the same Street. He separated them. Shane Ali went to some other shop. After about 5 to 10 minutes, Shane Ali came back and while he was passing in front of shop, Akram abused Shane Ali. Akram picked up a knife lying in the shop and started abusing Shane Ali more loudly. He Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 2/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 16:59:14 +0530 tried to pacify Akram but, in the meanwhile, Akram gave a knife blow on the chest of Shane Ali which missed. He made Akram to sit in the shop but the quarrel again started. This time Shane Ali sustained injury on his neck. He noticed that Shane Ali is having bleeding injury. Shane Ali was removed to hospital on a scooty. Crowd gathered there and assaulted Akram. Police also reached the spot. He gave his statement Ex.PW1/A. Akram alongwith knife was handed over to the police. He proved the seizure memo of knife as Ex.PW1/B. Akram was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. Accused made a disclosure statement which is Ex.PW1/E. He also identified the knife as Ex.P1.
3. During the cross examination, he deposed that he was not the eye witness of the actual quarrel and he also deposed that he has not seen Akram giving the knife injury to Shane Ali as at that time, he was present in the gali away from the spot.
4. Shane Ali was examined as PW-2. He deposed that on 07.03.2018, at about 4.00 PM, he went to the shop of Naeem for purchasing pan masala. Naeem was not present there only accused Akram was present in the shop. He asked for Shikhar gutka but the accused did not pay any heed and used foul language. Thereafter, they grappled with each other. Both of them assaulted each other. Thereafter, he went to other shop and when he returned back the accused again abused him on which he slapped him. The accused gave a knife blow on his neck inside the shop. He ran away from the spot. He was taken to the hospital. He remained conscious upto the hospital located in Shastri park and while he was taken to other hospital in SC No.226/2018 STATE Vs. AKRAM Page 3/20 Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 16:59:24 +0530 ambulance, he became unconscious. He regained consciousness after 2-3 days. Police met him after his discharge from the hospital and he narrated the entire facts to them. His clothes were seized by the police. He identified his clothes i.e. the knicker, vest, shirt and pant as Ex.P2 but he was not able to identify the knife.
5. During cross examination, he admitted that he slapped the accused when he used foul language against him. He denied the suggestion that he did not sustain injury at the hands of accused or that accused did not give any knife injury on his neck. He further denied the suggestion that during the scuffle, he sustained injury while falling in the shop or due to grudge against accused he falsely implicated him.
6. HC Udayveer Singh is examined as PW-3. He was the MHC(M). He proved the entry in the register no.19 as Ex.PW3/A. The exhibits were sent to FSL on 20.04.2018 vide RC No.72/21/18. The copy of the same is proved as Ex.PW3/B. The acknowledgment of the FSL is proved on record as Ex.PW3/C. The testimony of the witness has gone unchallenged and uncontroverted.
7. Naushad is examined as PW-4. He received the information that Shane Ali had sustained injury. He reached the godown and noticed that Shane Ali is having injury on his neck.
He got stopped one Scooty and removed Shane Ali to JPC Hospital and thereafter, he returned home. He identified Akram as the person who work at the shop of Naeem. Later, he came to know that Akram has assaulted Shane Ali. During cross Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 4/20 VIRENDER KUMAR BANSAL KUMAR Date:
BANSAL 2023.08.08 17:00:35 +0530 examination, nothing material came to contradict the witness.
8. Kashif was examined as PW-5. He deposed that he was present at his shop and the shop of Naeem is at a distance of about 10 meter from his plot. Accused Akram used to work on the shop of Naeem, however, he stated that he does not know what has happened in the shop. He was cross examined by ld. Addl. PP but he did not support the prosecution case.
9. Dr. Shashi Shekhar was examined as PW-6 who examined the injured Shane Ali and prepared the MLC which is proved on record as Ex.PW6/A. He also stated that the patient was referred to the SR Surgery. During cross examination, he stated that IO did not produce any weapon before him. The injuries were caused with close position. He denied the suggestion that he prepared the MLC at the instance of IO without examining the patient.
10. Dr. Anuragini was examined as PW-7. She had opined the the nature of injury as grievous and proved the discharge slip of Shane Ali as Ex.PW7/A. During cross examination by ld. LAC she stated that IO has not produced any weapon before her.
11. Dr. Mritunjay Kumar was examined as PW-8. He had also examined the injured on 07.03.2018 and he referred the patient for further management and investigation. Testimony of this witness has gone unchallenged and uncontroverted.
12. Naeem was examined as PW9. He deposed that he is running a general store at A-103, New Seelampur, Delhi and Digitally signed by SC No.226/2018 STATE Vs. AKRAM Page 5/20 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:00:44 +0530 accused Akram was employed by him at his shop about one month prior to this incident. On 07.03.2018, he had gone to the DCP office and when he came back, he saw 3-4 persons beating accused Akram. He dialed at 100 number. CCTV camera was also installed at his shop. DVR was removed by the police from his shop. The DVR was taken by the police.
13. During cross examination by the defence counsel he stated that he has seen the CCTV of his shop. He had not seen in the CCTV footage whether accused was inflicting any knife injury on the neck of the complainant. There is nothing in the CCTV footage showing the weapon of offence.
14. ASI Satish Kumar was examined as PW10. On 07.03.2018, he was working as duty officer and he proved the copy of FIR as Ex.PW10/B and his endorsement on the rukka as Ex.PW10/A regarding registration of FIR. The testimony of the witness has gone unchallenged and uncontroverted.
15. SI Rajender Singh was examined as PW11. He was the Incharge Crime team who visited the scene of crime on 07.03.2018 on receiving call from the control room. They reached Naeem Bakery shop at A-103, New Seelampur, at about 7.40 PM alongwith the Crime team officials. The spot was photographed. He also prepared the inspection report which is proved as Ex.PW11/A.
16. During the cross examination, he stated that at that time IO and SHO PS Seelampur were present at the spot. Some public persons were also there. No blood was found at the counter or Digitally signed by SC No.226/2018 STATE Vs. AKRAM Page 6/20 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:00:54 +0530 outside the shop. He denied the suggestion that he had not visited the spot or prepared a false report.
17. HC Shri Bhagwan was examined as PW12. He was the member of the Mobile Crime team which visited the scene of crime on 07.03.2018. He took photographs of the scene of crime from his camera and proved 14 photographs as Ex.PW12 (A1 to A14). The certificate under section 65B is proved as Ex.PW12/B. Nothing material came on record during cross examination of the witness to contradict him.
18. Ct. Santosh was examined as PW13. He deposed that on receiving DD No.48B which was marked to SI Pratik Saxena, he alongwith SI Pratik Saxena reached in front of K-Block, Hazi Afzal Office. Many public persons and PCR officials were there. The PCR officials produced one person alongwith blood stained knife. That person disclosed his name as Akram. IO prepared the sketch of knife and put the same in a sealed pulanda, sealed it with the seal of PS and seized it vide seizure memo Ex.PW1/1. While they were interrogating the accused, the complainant reached there. IO recorded the statement of the complainant. Complainant also informed that injured had been taken to the hospital. In the meanwhile, beat HC Narender also reached there. The shop where the incident had taken place was locked and HC Narender was left at the spot to guard the same. Thereafter, he alongwith IO went to JPC Hospital. The MLC of injured Shane Ali was collected. They came to know that injured had been shifted to LNJP Hospital. The accused was also got medically examined. IO called the Crime team to visit the spot. IO made endorsement on the statement of the complainant and prepared Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 7/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:01:03 +0530 the rukka. Rukka was handed over to him for getting the FIR registered. He took the rukka to the PS and get the FIR registered. Thereafter, he reached JPC Hospital and handed over the copy of FIR and original rukka to the IO. Thereafter, they alongwith accused reached the spot. Crime team also reached the spot and inspected the scene of crime. Photographer of the Crime team took the photographs. Public persons gathered on the spot. On seeing the public gathering, on the direction of IO, he alongwith HC Narender took the accused to PS. After sometime, IO and the complainant also reached at the PS. Accused was interrogated who made disclosure statement Ex.PW1/E. After sometime Ct. Bansi reached the PS alongwith the cloth parcel having clothes of the victim which was seized vide memo Ex.PW13/A. Accused was arrested vide memo Ex.PW1/C and his personal search was conducted vide memo Ex.PW1/D. The witness identified the knife as Ex.P1. He deposed that IO also seized the DVR from Naeem Bakery vide memo Ex.PW13/B. He also identified the DVR as Ex.P2.
19. During cross examination by ld. Defence counsel, he deposed that today cannot notice any blood on the knife Ex.P1. He does not remember the length and width of the knife. He denied the suggestion that nothing was recovered from the accused. They reached the spot on motorcycle. The sketch of knife was not prepared in his presence. He did not notice blood on the counter of the shop.
20. Ct. Bansidhar was examined as PW-14. He deposed that on 07.03.2018 on the instruction of the Senior officials, he went to LNJP hospital where injured Shane Ali was being treated. Doctor Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 8/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:01:14 +0530 handed over to him one sealed parcel of clothes of the injured sealed with the seal of LNH, New Delhi. He came back to the PS and handed over the pulanda to SI Pratik who seized the same vide memo Ex.PW13/A.
21. During cross examination, he stated that he cannot tell in which ward or room of the hospital, injured Shane Ali was being treated. He does not remember the time when the doctor handed over the sealed parcel to him.
22. HC Narender was examined as PW15. He deposed that on 20.04.2018, he took the two sealed parcels vide RC No.72/21/18, deposited the same in FSL and obtained the acknowledgment. He returned to the PS and handed over the acknowledgment to the MHC(M) PS Seelampur. During the time pulandas were with him, nobody tampered with the same. Nothing material came on record during his cross examination to contradict him.
23. ASI Ashok Kumar was examined as PW16. He deposed that on 07.03.2018, he was posted at PCR, North-East Zone. On receiving call from the control room, he reached at the spot. He came to know from the public persons that injured had already been taken to the hospital. One boy was produced before him who was beaten by the public persons. That boy disclosed his name as Akram. Public persons also handed over one knife to him having blood stains. Public persons stated that the boy Akram had assaulted the injured by the said knife. SI Pratik reached the spot. He handed over the accused and knife to him.
Knife was seized vide memo Ex.PW1/1. He also identified the knife as Ex.P1.
Digitally signed by VIRENDER VIRENDER KUMAR SC No.226/2018 STATE Vs. AKRAM Page 9/20KUMAR BANSAL BANSAL Date:
2023.08.08 17:01:23 +0530
24. During cross examination, he deposed that within 3-4 minutes of receiving the call, he reached the spot. He deposed that public persons did not inform him about the part of body of injured where accused had given knife blow. Public persons did not inform him as to where the incident had taken place. IO reached within 4-5 minutes of his reaching the spot. He cannot tell the name of the public persons who handed over the accused and knife to him. He did not notice any blood stains on the ground.
25. SI Pratik Saxena was examined as PW-17. He deposed that on 07.03.2018, on receiving DD No.48B Ex.PW17/A, he alongwith Ct. Santosh reached outside the office of Hazi Afzal, K-Block, Seelampur. PCR officials met him there. Incharge PCR produced one person, who disclosed his name as Akram, alongwith a knife. He was informed that injured had been shifted to JPC Hospital. He put the knife in a cloth parcel, sealed it with the seal of PS and seized vide memo Ex.PW1/A. Amit Morwal the eye witness met him there. He recorded his statement. In the meanwhile, other police officials and beat staff also reached there. He left the spot alongwith accused and Ct. Santosh and reached the hospital. He collected the MLC of Shane Ali and came to know that Shane Ali has been shifted to another hospital.
Thereafter, he made his endorsement Ex.PW17/B on the statement of Amit Morwal and handed over the rukka to Ct. Santosh for getting the FIR registered. After sometime, Ct. Santosh came back to the hospital and handed over the original rukka and copy of FIR to him. He again went to the spot and prepared site plan. Crime team was called on the spot. Incharge Crime team inspected the spot and gave his report Ex.PW11/A. Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM VIRENDER Page 10/20 KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:01:32 +0530 The photographer took 14 photographs of the scene of crime as Ex.PW12/A1 to A14. From the place of incident i.e. shop the DVR was seized vide memo Ex.PW13/B. As there was crowd on the spot, so accused Akram was sent to PS for safety. Thereafter, he alongwith complainant reached the PS. Accused Akram was arrested vide memo Ex.PW1/C and personal search was conducted vide memo Ex.PW1/D. Accused Akram made the disclosure statement Ex.PW1/E. In the meanwhile, Ct. Bansidhar reached in the PS from Lok Nayak Hospital and handed over one sealed pulanda sealed with the seal of hospital to him. Seizure memo of pulanda is Ex.PW13/A. The case property was deposited in the Malkhana. Later on, the case property was sent to FSL and the FSL report was collected. He identified knife as Ex.P1 and DVR as Ex.P2.
26. During the cross examination, he deposed that the call was received at about 4.10 PM and within 5-7 minutes he reached the spot. PCR was already there. SI Ashok from PCR handed over the blood stained knife and accused to him. SI Ashok did not inform the names of public persons who handed over the knife to him. He recorded the statement of injured on 18.03.2018 as he was discharged from the hospital on 16.03.2018. He met the victim first time on 18.03.2018 and before that that he was under
treatment. However, in the next sentence itself he denied the suggestion that he did not meet the victim in the hospital on the day of incident. The shop where the incident had taken place is situated in the residential area and there are not many shops adjoining the shop where the incident had taken place. He does not remember if he recorded the statements of the occupants of the shop situated opposite to the shop where the incident had Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 11/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:01:52 +0530 taken place. He recorded the statement of various eye witnesses who had seen the incident. He denied the suggestion that the complainant told him that he had not seen the actual quarrel between the victim and the accused.
27. Thereafter the prosecution closed its evidence but on an application Dr. Monika Chakravarty, Sr. Scientific Officer, FSL was examined as PW18. She conducted the DNA profiling of the knife and cloth piece of the injured. The genotype analysis report is Ex.PW18/A and the DNA profiling report is proved as Ex.PW18/B. According to the report, DNA profiling (STR Analysis) performed on the exhibits provided is sufficient to conclude the DNA profile that DNA profile generated from the source Ex.2a (jacket) and Ex.2d (cloth piece) of injured were found to be matching with DNA profile generated from Ex.1 (knife). The testimony of this witness has gone unchallenged and uncontroverted.
28. Thereafter, the evidence of the prosecution was closed.
Statement of accused under section 313 CrPC was recorded wherein he admitted that he was present in the shop of Naeem and Naeem was not there. He also admitted that Shane Ali asked for Shikhar Gutka but he denied that he did not pay heed and used foul language against Shane Ali. He told Shane Ali that Shikhar Gutka is not there. Shane Ali started abusing him in foul language. Shane Ali got inside the shop and started assaulting him after which crowd gathered and separated them. He denied that he continued to abuse and threaten Shane Ali and that he gave a knife blow on his neck. He further told that Shane Ali again came at the shop. He was cutting butter at that time (it was Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 12/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:02:03 +0530 bakery shop) when he came from behind and pushed him and also took the butter knife from the table. Shane Ali tried to hit him with the knife and in order to save himself he pushed Shane Ali, he does not know if Shane Ali got knife blow during that scuffle. He was also assaulted by Shane Ali. He denied the entire evidence. He also stated that Amit Morwal wanted to get his bakery shop vacated from Naeem and therefore, he in collusion with Shane Ali implicated him in this case. The accused had opted not to lead any evidence in his defence. The case was fixed for final arguments.
29. I have heard ld. Addl. PP for the State, ld. Counsel for the accused and perused the record.
30. Ld. Addl. PP submitted that in this case injured has been examined as PW-2. He has fully supported the prosecution case that it was the accused who assaulted him with the knife by giving knife injury on his neck. It was a bleeding injury and on the MLC the nature of injury was opined as grievous. The testimony of PW2 is corroborated by the owner of the shop. Ld. Addl. PP submitted that on the date of incident, it was the accused who was working from that shop which was taken on rent by Naeem. Naeem is also examined as PW-9 and he also deposed that accused Akram was employed by him just one month prior to the incident. Ld. Addl. PP submitted that the testimony of PW2 gets full corroboration from PW1. Even the scientific evidence from FSL which is on record corroborates the testimony of PW2. According to the FSL result Ex.PW18/B and genotype analysis Ex.PW18/A, the knife Ex.P1, the clothes of the injured Ex.P2, both were having the blood stains and in the DNA Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 13/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:02:12 +0530 profiling, the DNA of the blood found on the knife matched with the DNA of the blood found on the cloth piece of the injured. Ld. Addl. PP submitted that this evidence itself shows that it was the knife Ex.P1 with which the injury on the person of injured was caused by the accused. The presence on the spot and the scuffle is admitted by the accused. Ld. Addl. PP further submitted that the defence taken in statement of accused under section 313 CrPC that PW1 Amit Morwal wanted to get his shop vacated from Naeem and that is why he is falsely implicated in this case but there is no such cross examination on PW1 and PW9. It is only an after thought having no merit.
31. Ld. Addl. PP further submitted that so far as the intention or knowledge is concerned, there cannot be any evidence in this record, it is to be inferred from the evidence and circumstances.
In this case the accused gave a knife blow on the vital part of body of injured and the doctors opined the nature of injury as grievous. From this itself it can be inferred that accused at that time had the intention and knowledge that if he will hit on the neck of the injured with knife, injured would die.
32. Ld. Addl. PP further submitted that the onus which was on prosecution has fully been discharged. There is nothing on record to disbelieve the testimony of the injured and witnesses. Injured/witness PW2 is reliable, trustworthy and his testimony inspires confidence. His testimony is corroborated by the other witnesses also. It is prayed that as the prosecution has fully discharged its onus and proved the guilt of accused beyond doubt, therefore, he be held guilty and convicted for offence punishable under section 307 IPC.
SC No.226/2018 STATE Vs. AKRAM Page 14/2033. Ld. Defence counsel submitted that in this case, the onus was upon the prosecution to prove the guilt of the accused beyond reasonable doubt which the prosecution miserably failed. Ld. Counsel submitted that FIR in this case was recorded on the statement of PW1 alleging himself to be the eye witness but during cross examination, it has come on record that he has not witnessed the quarrel. He has specifically deposed that he has not seen the accused giving knife blow to injured as at that time, he was in the street. There is no otsher evidence or corroboration to the testimony of PW2 Shane Ali. The other witnesses examined are also not the eye witness. Ld. Defence counsel further submitted that so far Shane Ali is concerned, he himself is the aggressor. From his testimony it is clear that the accused was not giving any heed and he abused him and grappled with him though it is not true. Infact the accused told the injured that the Shikhar gutka is not available. The injured started abusing the accused and also assaulted him. The incident had taken place when the injured again came and at that time, accused was cutting the butter with the knife. The injured pushed him and took the knife and attempted to attack the accused and in the scuffle, the injured sustained injury with that knife. Ld. Counsel further submitted that it was he i.e. the injured who attacked on the accused. It was the injured who slapped him and abused him. He also gave kick and fist blows to the accused. Under the circumstances, as it was the injured who firstly assaulted the accused, hence, it is clear that no offence as such is made out against accused. Accused was having his right to private defence to save himself.
34. Ld. Counsel further submitted that according to the Digitally signed by SC No.226/2018 STATE Vs. AKRAM Page 15/20 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:02:54 +0530 evidence there was no pre-planing or any pre-meditated action by the accused. Even if the prosecution story is taken as a gospel truth, it was the injured who first slapped the accused after entering the shop and it was only thereafter when the accused retaliated. Ld. Counsel further submitted that under the circumstances, it cannot be said that he has any intention or knowledge that by doing such act, he will cause death of the injured. It was a sudden quarrel and hence, offence punishable under section 307 IPC is not made out. The onus was upon the prosecution to prove the same which the prosecution has failed.
35. Ld. Counsel for the accused further submitted that in this case, accused also sustained injuries but the prosecution has neither placed on record the MLC of the accused nor proved the same and has not explained the same as to how he sustained the injuries. The benefit of the same has to be given to the accused and he be acquitted.
36. Ld. Counsel further submitted that so far as knife is concerned, knife has not been recovered from the possession of accused. It has been handed over to the IO when the PCR van came. There is no evidence that it is the same knife which was used by the accused. Ld. Counsel further submitted that even the injured is not able to identify the knife used in the commission of offence though knife was shown to him. Ld. Counsel submitted that even the weapon of offence has not been proved and established, hence, the benefit of same must be given to the accused. No independent witness has been examined. There is nothing on record to show that accused had the intention or knowledge to cause any such injury. It is prayed that keeping in Digitally signed by SC No.226/2018 STATE Vs. AKRAM Page 16/20 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:03:01 +0530 view these facts and the fact that prosecution has miserably failed, accused be acquitted from this case. Ld. Defence Counsel has relied upon the judgements "Sekar Alias Raja Shekharan Vs. State (2002) 8 SCC 354", "S. Shanmugavel Nadar VS. State of T.N. & Another (2002) 8 SCC 361", "Raghbir Singh and Ors. Vs. State of Haryana (2008) 16 SCC 33" and "Girija Shankar VS. State of UP (2004) 3 SCC 793".
37. After hearing the arguments and going through the record, I found that in this case, though the prosecution alleges that PW1 Amit Morwal was the eye witness but the witness himself has submitted that he has not witnessed the incident. Accused had not given injury on the person of injured in his presence. He was in the street at that time. He has not seen the accused giving knife blow to the injured. Therefore, we are left with the testimony of PW2 Shane Ali only. There is no such rule of evidence that there must be an eye witness of the incident or corroboration to the testimony of injured before the same could be relied upon. The injured can be relied upon. The only requirement is that the witness must be reliable, trustworthy and if his testimony inspires confidence, the case is based on the sole testimony.
38. PW2 Shane Ali deposed that he went to the shop of Naeem where Akram was sitting. He asked for gutka but the accused did not pay any heed to his request and abused him. The witness is fair enough when he stated that thereafter, he grappled with the accused though the defence is alleging that accused told the injured that gutka is not available on which injured abused the accused but surprisingly, there is no such cross examination of PW2 on this aspect that accused told him that the gutka was not Digitally signed by SC No.226/2018 STATE Vs. AKRAM Page 17/20 VIRENDER VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:03:10 +0530 available or that thereafter, he abused the accused and also grappled with him. In view of this fact, in my opinion it is nothing but an after thought in order to somehow come out of the situation.
39. Witness has further stated that he went to some other shop and while he was coming back, he saw that accused was still abusing him on which he slapped the accused and the accused gave him blow on his neck with the knife. The accused has now taken the defence that he was cutting the butter with the knife, injured came there, pushed him and picked up the knife. It is argued that injured attempted to hit him with the knife and in that scuffle he fell down and sustained injuries but no such cross examination was done on PW2 on this aspect. Even the doctor has not been cross examined on the aspect whether the injuries as found on the person of injured are possible due to fall. It is pertinent to mention here that the MLC proved as Ex.PW6/A. As per record, injured was referred to SR Surgery and thereafter, he was referred to the Higher Center ie. Lok Nayak Hospital. The doctors have opined the nature of injury as grievous. In the absence of any such cross examination of the doctor whether the injury as found on the person of the injured which his diagnosed as stab injury and not a cut injury as evident from Ex.PW7/A and the doctor has also opined the nature of injury as grievous. PW-6 Dr. Shashi Shekhar also mentioned specifically during the cross examination that injuries were caused with close position. Under the circumstances, I do not find any merit in the contention that injured sustained injuries due to fall. The testimony of injured PW2 inspires confidence. He has deposed truly and even explained that he also slapped the accused, on which accused Digitally signed by VIRENDER SC No.226/2018 STATE Vs. AKRAM Page 18/20 VIRENDER KUMAR KUMAR BANSAL BANSAL Date:
2023.08.08 17:03:29 +0530 gave him knife blow. I do not find any reason to not to believe his testimony.
40. Ld. Counsel has raised the plea that the knife is not linked with the commission of offence. No doubt that PW2 has not been able to identify the knife as it was suddenly picked by the accused, hit him on his neck but the police seized it from the spot and the scientific evidence nails the same as according to the report the blood was detected on knife. The DNA profiling was done and the DNA found on the knife matched with the blood stains on the clothes of the injured. The fact that injured was having bleeding injury is deposed by the witnesses and they also stated that he was bleeding. There is no reason to disbelieve them. The clothes seized were also having blood stains. In view of this report, I do not find any merit in this contention that the knife is not linked with the commission of offence.
41. So far as intention and knowledge which is required for holding the accused guilty for offence punishable under section 307 IPC, I found that as per the evidence, it was the injured who first slapped the accused but he slapped him because accused was abusing him. Ld. Counsel for the accused has claimed the right of private defence as he was assaulted but to save oneself the force which is required to dispel shall not be more than what is required as the injured slapped him. It is not explained how and why the accused who was slapped had picked up a knife and hit on the neck. The accused has exceeded his right of private defence and hence the benefit of section 96 IPC is not available to the accused. So far as intention or knowledge is concerned, it is evident from evidence that it was a sudden incident, the injured Digitally signed SC No.226/2018 STATE Vs. AKRAM Page 19/20 by VIRENDER VIRENDER KUMAR BANSAL KUMAR Date:
BANSAL 2023.08.08 17:03:36 +0530 slapped the accused and accused picked up a knife which was lying there and hit the injured. It is also important to note that it was a single blow when the accused was already assaulted from the injured. Under the circumstances and from the evidence on record, in my opinion, the prosecution has not been able to show that accused had any intention to cause death or had any knowledge that by doing the act he would cause death of the injured. Therefore, the prosecution has failed to prove the same. Hence, accused Akram is acquitted for the offence punishable under section 307 IPC. However, accused has caused grievous injury with a knife i.e. deadly weapon on the person of PW2 Shane Ali, hence, accused Akram is held guilty for offence punishable under section 326 IPC.
ANNOUNCED IN THE OPEN Digitally
signed by
COURT ON 08th AUGUST, 2023 VIRENDER
VIRENDER
KUMAR
KUMAR BANSAL
BANSAL Date:
2023.08.08
17:03:44
+0530
(V. K. BANSAL)
PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI SC No.226/2018 STATE Vs. AKRAM Page 20/20