Delhi District Court
State vs Akbar @ Ganja Fir No.319/2017 Ps Moti ... on 29 September, 2018
State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC IN THE COURT OF SHRI SAURABH PARTAP SINGH LALER ADDITIONAL SESSIONS JUDGE (PILOT COURT) WEST DISTRICT : TIS HAZARI COURTS : DELHI SC No. 11/2018 FIR No. 319/2017 U/s. 302/34 IPC P.S Moti Nagar In the matter of : State versus Akbar @ Ganja S/o Sabir R/o Jhuggi No. 320 Rakhi Market, Zakhira Moti Nagar, Delhi Date of Institution : 02.01.2018 Date of reserving Judgment : 24.09.2018 Date of pronouncement : 29.09.2018 Appearances For the State : Ms. Reeta Sharma, Additional Public Prosecutor For the accused : Sh. Dhruv Bhagat, Amicus Curiae, Advocate Sessions Case No. 11/2018 Page 1/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC JUDGMENT
1. Accused namely, Akbar @ Ganja aged about 22 years son of Sabir, was sent up for trial for murder of Niyaz son of Mustaq on report under Section 173 of the Code of Criminal Procedure, 1973, (Cr.P.C) submitted on 24.11.2017 upon conclusion of investigation into First Information Report (FIR) No. 319/2017 of Police Station Moti Nagar for offences punishable under Sections 302/34 of the Indian Penal Code, 1860 (IPC).
2. Prosecution Version:
2.1. As per the prosecution story, on receipt of DD No. 42A regarding stabbing near Ram Dharam Kanta, Zakhira Gol Chakkar, Moti Nagar, ASI Hareti Lal alongwith Ct.
Anup reached at the spot where they learnt that the injured was taken to Acharya Bhikshu Hospital by the PCR van. The said officials thereafter reached Acharya Bhikshu Hospital and collected MLC no. 19866/17 of Niyaz (deceased) son of Mustaq, wherein the doctor had reported history of physical assault at Rakhi Market Zakhira and reported two sharp injuries on the chest and thigh of the injured who was unfit for statement at that time. Thus, ASI Hareti Lal prepared rukka on the basis of the said MLC report and sent the same for registration of FIR under section 307 IPC which was registered at the police station on the same date vide FIR no. 319/2017. The investigation was handed over to SI Hira Lal. At the Sessions Case No. 11/2018 Page 2/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC hospital, ASI Hareti Lal seized the blood soaked jeans of the injured and during enquiry at the hospital, SI Hira Lal met Mohd. Sagir, who claimed to be an eye witness of the incident and he informed the investigating officer that on 03.09.2017 at about 8.15 p.m in his presence, 'R' son of SS and Akbar @ Ganja son of Sabir asked Niyaz for cannabis (Ganja) and when Niyaz stated that he did not have the same, both the said persons started abusing him in filthy language and when Niyaz asked them not to abuse him, Akbar @ Ganja said to 'R' to teach a lesson to Niyaz, upon which 'R' caught hold of Niyaz from the back- side and Akbar @ Ganja took out a knife and stabbed Niyaz with the same in his chest and thereafter in his right thigh. After that, the said culprits ran away towards railway line. Another witness namely Mohd. Sanwar Alam told the IO that at 8.15 p.m on the same day, the aforesaid two culprits came towards ring factory and behind them Niyaz also came there, who fell down and he with the help of Sagir, picked up Niyaz upon which Niyaz told him that 'R' and Akbar @ Ganja had stabbed him. Thereafter, someone called 100 number and alongwith the PCR the said witness also came to the hospital. In view of their statements and subsequently because of death of Niyaz on 04.09.2017, section 302 IPC was added. Thereafter, the IO got the postmortem examination conducted at RML hospital and as per the postmortem report, the death was found to be due to hemorrhagic shock caused due to the injury no.1, caused by sharp edged weapon which is Sessions Case No. 11/2018 Page 3/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC sufficient to cause death in the ordinary course of nature. All the injuries were found to be ante-mortem in nature. Consequently, Akbar @ Ganja was arrested on 04.09.2017 and upon his disclosuer and pointing out, the weapon of offence i.e. the knife was recovered and in the subsequent opinion taken from the doctor on the basis of the said knife, it was opined that injuries no. 1 and 2 could be caused by the said knife or similar type of weapon. The other culprit namely 'R' being minor was apprehended and produced before JJB and after completion of investigation, the present chargesheet was filed, however, pending the DNA report. The DNA report was subsequently filed, as per which the DNA profile generated from the clothes of the deceased were found to match from the DNA profile generated from the knife recovered at the instance of accused.
3. After completion of the investigation, the I.O came to the conclusion that sufficient evidence had come on record against accused Akbar @ Ganja for commission of offences punishable under Section 302/34 IPC. The police report under Section 173 Cr.P.C (charge-sheet) was prepared against accused Akbar @ Ganja and filed in the court of learned Metropolitan Magistrate.
4. On the basis of charge-sheet and the documents submitted with it, the learned Metropolitan Magistrate, Delhi took cognizance of offences punishable under Section 302/34 IPC and vide order dated 23.12.2017 after complying Sessions Case No. 11/2018 Page 4/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC with the provisions contained in Section 207-209 Cr.P.C, committed the case to the Court of Session for 02.01.2018.
5. Charge:
On 06.01.2018, after hearing the learned Additional Public Prosecutor for the State and the learned counsel for the accused, charge was framed against the accused namely, Akbar @ Ganja for commission of offence punishable under Section 302 IPC. The charge so framed was read over and explained to the accused to which he did not plead guilty and claimed trial.
6. Prosecution Witnesses :
To prove the afore-mentioned charge against the accused, the prosecution examined 17 witnesses in all. For the sake of convenience, a brief description of all the prosecution witnesses as well as their testimonies and the documents relied upon them is produced is stated herein below, in tabular form :-
Sl. NO. NAME OF EXIHIBIT DOCUMENTARY NATURE OF PROSECUTION EVIDENCE TESTIMONY WITNESS PW-1 MOHD. SAGIR S/O PW-1/A Site plan without Being an eye-witness SH. SAHAB JAIN scale deposed about the PW-1/DA Confronted with the incident.
statement u/S 161 Cr.P.C.
PW-2 MS. NARGIS W/O PW-2/A Staement for She identified the dead
SH. JAFFAR identification of body of deceased in
dead body the hospital.
PW-2/B Receipt of dead
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State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC
body
PW-3 HC JAG RAM He shifted Niyaz
(deceased) to the
hospital in injured
condition.
PW-4 MOHD. SANWAR Deposed about the
ALAM incident.
PW-5 PRABHANSHU He made call at 100
S/O SH. RAM LAL number informing
about the incident.
PW-6 ASI HARETI LAL PW-6/A Seizure memo of Deposed about
blood stained jeans reaching at spot i.e. PW-6/B Rukka Ram Dharam Kanta, Zakhira round about, Moti Nagar on receipt of DD No. 42 A dated 03.09.2017. He prepared rukka for registratin of FIR in the present case.
PW-7 ASI OM PRAKASH PW-7/A Scaled site plan At the instance of IO, visited the place of incident on 14.09.2017 and prepared the scaled site plan.
PW-8 HC OMBIR SINGH PW-8/A Arrest memo of Deposed about
accused apprehending and
PW-8/B Personal search arresting accused
memo of accused Akbar @ Ganja. He is
also a witness to
PW-8/C Disclosure
personal search of
statement of
accused and recovery
accused
of weapon of offence
PW-8/D Sketch of
as well as pointing out
recovered knife
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PW-8/E Seizure memo of of place of occurrence.
knife
PW-8/F Pointing out memo
of accused
PW-9 DR. SACHIN PW-9/A Postmortem Conducted the
MITTAL, examination report postmortem
CASUALITY PW-9/B & Subsequent examination of Niyaz
MEDICAL opinion regarding (deceased) on
PW-9/B1
OFFICER knife 04.09.2017. He also
gave the subsequent
opinion regarding
knife.
PW-10 DR. S.K. PW-10/A Prepared MLC of
KAAKRAN, CMO Niyaz (deceased)
when he was brought
to the hospital in
injured condtion on
03.09.2017.
PW-11 CT. SANDEEP Deposited the case
property in the FSL.
PW-12 ASI SUMER Collected the
SINGH subsequent opinion
regarding the knife.
PW-13 HC LALIT KUMAR PW- Entry no. 3245/17 Sent the case property
13/A(OS in register no. 19 to FSL Rohini on
R) different dates.
( MHC(M) )
PW- Entry no. 3246/17
13/B(OS in register no. 19
R)
PW- Entry no. 3251/17
13/C(OR) in register no. 19
PW- Entry vide RC no.
13/D(OS 83/21/17 in register
R) no. 21
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State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC
PW- Entry vide RC no.
13/E(OS 95/21/17 in register
R) no. 21
PW- Entry vide RC no.
13/F(OSR 96/21/17 in register
) no. 21
PW- FSL
13/G(OS acknowledgment
R)
PW- FSL
13/H(OS acknowledgment
R)
PW-14 CT. ANOOP PW-14/A Seizure memo of Deposed about the
SINGH PW-14/B exhibits near plot investigation.
no. 136 (blood
PW-14/C
stained earth
control, blood in
gauze, plain earth
control and shoes)
Seizure memo of
exhibits near plot
no. 19 (blood
stained earth
control, blood in
gauze, plain earth
control and shoes)
Seizure memo of
vescera box and
blood sample of
deceased
PW-15 SONI KHAMPA, PW-15/A FSL report Deposed about
JR. FORENSIC biological examination
CHEMICAL of sealed parcels in
PW-15/B Forwarding letter of
EXAMINER connection with the
abovesaid FSL
(BIOLOGY), present case.
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State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC
report
(FSL)
PW-16 SI HIRA LAL PW-16/A Death report Deposed about the
investigation.
PW-17 INSPECTOR PX-1 Statement of Deposed about the
SHYORAM identification of investigation, being
(Investigating dead body Investigating Officer.
Officer) PX-2 Crime team report
PX-3 Photographs of
scene of crime
PX- FIR, certificate u/s
4(COLLY) 65-B Evidence Act
PX-5 DD entry no. 42A
dt. 03/09/2017
PX-6 DD entry no. 6A dt.
04/09/2017
PX-7 FSL report
7. Statement of the Accused:
After conclusion of prosecution evidence, on 07.08.2018, statement of accused Akbar @ Ganja was recorded under Section 313 Cr.P.C on 21.08.2018, wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case. He also stated that the entire incident had taken place between CCL 'R' and the deceased and that he was not even present at the spot. He further stated that witnesses deposed against him, as CCL 'R' could not be given harsh punishment.
8. The accused did not lead evidence in his defence.
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9. Final Arguments:
9.1. Arguments were advanced by Ms. Reeta Sharma, learned Additional Public Prosecutor for the State and Sh. Dhruv Bhagat, learned Amicus Curiae for accused Akbar @ Ganja.
9.2. Learned Additional Public Prosecutor: argued that the present case is based on eye-witness account of PW-1 Mohd. Sagir and PW-4 Mohd. Sanwar Alam as well as circumstantial evidence. She has submitted that besides the eye witness account given by PW-1 and PW-4, the very fact that the weapon of offence i.e. the knife was recovered after the arrest of accused, that too from his jhuggi, at his instance, further corroborates the oral testimonies. She submits that said knife was also sent for DNA profiling and as per the report received from FSL, the DNA on the blood found on the knife matched with the DNA of the blood on the clothes of the deceased, seized by the Investigating Officer. She submits that there is no material contradiction in the testimonies of the eye witnesses as well as the police witnesses examined in the case and that the prosecution has proved beyond reasonable doubt that the accused committed murder of the deceased on 03.09.2017, when the deceased refused to give cannabis (ganja) to the accused.
9.3. Learned Defence Counsel:
a) The first argument of learned counsel for accused is with respect to the arrest of the accused and he has Sessions Case No. 11/2018 Page 10/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC submitted that there are major discrepancies in the statement of PW-8, PW-16 and PW-17 as to how the information regarding the presence of the accused at the spot, where he was arrested, was received from the secret informer.
b) It is submitted by him that PW-8 in his testimony stated that secret informer had not come to the police station, whereas PW-16 stated that secret informer gave the information at police station and PW-17 stated that secret informer met at Zakhira. He pointed out that there is material contradiction, as regards whether the secret informer actually met the said three officials, who are involved in the arrest of the accused and the said contradiction assumes significance in view of the fact that the accused has been arrested at a distance of 400-500 mtrs. from the place where the offence allegedly took place, that too on the very next day.
c) He submits that the fact that the place of arrest is just 400-500 mtrs. from the place of incident is also admitted by PW-17 in his testimony and it is further argued by learned counsel for accused that, though, as per the said witness (PW-17) the weapon of offence was got recovered by the accused from his jhuggi, however, there is material contradiction even as regards who was present at the time when the said recovery was made. Admittedly there is no public witness to the said recovery. He submits that PW-16 SI Hira Lal in his Sessions Case No. 11/2018 Page 11/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC statement stated that the mother of the accused was not present at that time, whereas the other two recovery witnesses i.e. PW-8 and PW-17 stated that the mother was present, which fact is also mentioned in the arrest memo, as the information regarding arrest as per arrest memo was given to the mother. Therefore, learned counsel for accused submits that the arrest of accused and the recovery of weapon from him is shrouded with doubts.
d) He further submits that the accused in normal circumstances, if he had actually committed offence as alleged, would have run away from the spot and therefore, the possibilities of his arrest on the next day, that too within 400-500 mtrs. from the place of incident is a fact, which goes in favour of the accused and remains unexplained by the prosecution and learned counsel relied upon Para 53-55 of the judgment titled Prahlad & Ors. Vs. State dated 09.02.2018 in Crl. A 100/2017 of Hon'ble Delhi High Court in this regard.
e) It is further submitted that in normal circumstances, the accused would not have hidden the weapon of offence in his jhuggi, specially when as per prosecution story itself, there was sufficient time between the incident and the time of arrest to get rid of the said weapon, either by throwing it away or destroying it.
f) That interestingly clothes of the accused, worn by him allegedly at the time of incident, have not been Sessions Case No. 11/2018 Page 12/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC recovered and when PW-17 was questioned in this regard, he stated that accused informed that the clothes were thrown by him in a train and if the same is believed then the prosecution has failed to explain as to why accused would not thrown the weapon of offence as well alongwith the said clothes, more so when the weapon of offence is not an object which is very expensive, being just a knife. He has further pointed out that it is because of this reason that neither at the time of arrest, nor at the time of recovery of weapon of offence, the Investigating Officer joined any public witness from the spot, though the place of arrest, as well as place of recovery of weapon is situated in a thickly populated area.
g) Learned counsel for accused has further submitted that PW-16 in his examination in chief stated that he alongwith Constable Anoop as well as PW-1 and PW-4 went to the spot i.e. Chara Mandi in front of Plot No.19, from where articles were recovered as per seizure memo Ex. PW 14/A to Ex. PW 14/C. However, none of the two witnesses i.e. PW-1 and PW-4 testified to the effect that said memos were prepared in their presence or that said articles were seized and seizure memo also do not bear their signature. Moreover, the said witnesses were never shown the weapon of offence, though as per prosecution story PW-1 is an eye witness Sessions Case No. 11/2018 Page 13/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC and he could have identified the weapon of offence, if shown to him.
h) As regards expert opinion given by PW-15, who had given the report that the DNA found on knife matched with the DNA of the deceased, it is submitted by learned counsel for accused that except final opinion in this regard, the said expert has not produced any document to support the said opinion or to show how the said opinion was arrived at.
i) He submits that specific question regarding having prepared allelic chart was put to expert witness and it has been admitted by the witness that the said chart was not attached with the report and even despite the said question, the said chart never came on record. He submits that in absence of the said chart, for the purpose of comparing the DNA profile of the blood of the deceased and the blood found on the knife, the opinion of the expert can not be blindly accepted.
j) In light of the said submissions learned counsel prayed that the accused be acquitted, however, in alternative he further submits that even if the evidence available on record is taken to be correct, still offence under Section 302 IPC is not made out, rather offence under Section 304 Part-I IPC (culpable homicide not amounting to murder) is made out for the reason that PW-1 and PW-4 have admitted that there was no animosity or enmity between the accused and the Sessions Case No. 11/2018 Page 14/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC deceased and the incident as per prosecution took place merely because the deceased refused to supply 'ganja'. He submits that even as per prosecution story, the incident took place within a few seconds and even if the allegations are found to be true, still the facts are squarely covered by judgment titled Rampal Singh Vs. State of UP (2012) 8 SCC 289, wherein Hon'ble Apex court converted the conviction under Section 302 IPC to one under Section 304 Part-I of IPC. He has relied upon Para 27-39 of the said judgment. He has also pointed out that even as per the disclosure statement Ex. PW 8/C, the entire incident took place because of grave and sudden provocation.
9.4. In rebuttal, Learned Additional Public Prosecutor:
a) As regards arguments of learned counsel for accused with respect to arrest of the accused, learned Additional PP for the State has submitted that contradiction, as to where the secret informer met the police officials, is not a material contradiction for the reason that the secret informer had joined raiding party and had pointed out the accused during search in the area.
b) Learned Additional PP for the state has submitted that present case is a case, which is based on eye witness account of the incident given by PW-1 and also upon the testimony of PW-4, who reached at the spot immediately and had seen both the accused as well as Sessions Case No. 11/2018 Page 15/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC the deceased and to whom the deceased had informed before he expired that the injuries were inflicted by the accused amounting to be dying declaration. She further submits that besides the said oral testimony of PW-1 and 2 another important piece of evidence against accused is the recovery of knife from his jhuggi upon his disclosure statement, which is admissible under Section 27 of Indian Evidence Act and the DNA report which connects the said knife with the deceased.
c) However, as regards presence of mother of accused at the time of arrest and recovery, it is submitted by learned Additional PP for the State that on page 9 of cross examination of PW-16, he states that at the time of recovery no one was present inside the jhuggi, which does not necessarily mean that mother was not present even outside the jhuggi, as the jhuggi is very small and three police officials and accused were already in jhuggi at the time of recovery. She submits that the said PW-16 has never stated that the mother of the accused was not present there when police official reached there.
d) As regards the conduct of the accused, regarding his arrest at a distance of 400-500 mtrs. from the place of incident and regarding the recovery of knife from his jhuggi, learned Additional PP for the State has submitted that conduct of each individual is different in a particular situation and therefore merely because the Sessions Case No. 11/2018 Page 16/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC accused choose to throw away the cloths and hide the knife, it can not be presumed that he is innocent, as he is also a drug addict. Learned Additional PP has stated that judgment titled Prahlad Vs. State (Supra) relied upon by defence is distinguishable in the facts and circumstance of the present case.
e) As regards the identification of knife by eye witness PW-1 and circumstantial witness PW-4, it is submitted that said recovery of knife is admissible under Section 27 of Indian Evidence Act due to being recovered from jhuggi of the accused at his instance and further because of the fact that the DNA of the blood found on the said knife had matched with the blood of the deceased. Hence, use of the knife by accused in inflicting injuries to the deceased has been duly proved in this case.
f) Moreover, as per the testimony of PW-1, the incident of stabbing took place at spur of the moment and after stabbing accused immediately took away the knife with him, hence there was no occasion for PW-1 to minutely see the knife.
g) As regards the absence of signatures of PW-1 and 4 on Ex. PW 14/A to Ex. PW 14/C, it is submitted by learned Additional PP that none of the police witnesses have testified that PW-1 and 4 were continuously involved in the investigation throughout the day by the Investigating Officer.
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h) As regards the DNA report Ex. PW 15/A, it is submitted by learned Additional PP that the said witness stated in her cross examination that she did not took out the printouts of allelic details at the time of preparation of report and the said details were studied by her in the machine itself. Hence, testimony of PW-15 can not be doubted upon merely on the basis of not placing on record the allelic data.
i) Further as regards the argument that offence punishable under Section 304 Part-I of IPC is made out and 302 IPC is made out in this case, it is submitted by learned Additional PP that to come under Exception 1 Section 300 IPC the provocation is to be grave and sudden and should be one which is sufficient to deprive the accused of his power of self control. She further submits that as per the explanation to the said exception, the said fact is to be proved by defence by adducing evidence on it and can not be judged merely on the basis of disclosure statement.
j) She further submits that the case do not fall even under Exception 4 of Section 300 IPC as there was neither a sudden fight, nor sudden quarrel and for the reason that at the time of incident the accused had taken undue advantage, as he was already having a knife, whereas the deceased was unarmed.
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10. I have given my thoughtful consideration to the submissions of both the sides and have perused the record.
11. In the present case, accused has been charged for commission of offence punishable under Section 302 IPC. The said Section is reproduced as under:
302.Punishment for Murder- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
12. The relevant portion of Section 300 IPC which defines 'Murder' reads as follows:
300. Murder- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
Secondly- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused , or - Thirdly- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury is aforesaid.
13. Further, the relevant portion of Section 299 IPC which defines "Culpable homicide", having reference in the definition of 'Murder' reads as follows:
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299. Culpable homicide-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offence of culpable homicide.
14. The evidence produced by the prosecution against the accused to prove charge of offence of murder can be broadly divided into following categories:-
14.1. Eye witness account of the incident (i.e. testimony of PW-1).
14.2. Dying declaration of deceased to PW-4. 14.3. Oral testimony of PW-4 with respect to the facts which are relevant under Section 6 of Indian Evidence Act being res gestae.
14.4. Recovery of knife at the instance of accused from his jhuggi under Section 27 of Indian Evidence Act. 14.5. Expert opinion regarding matching of DNA profile generated from the blood sample of deceased (on cloth etc.) and the blood stains found on the knife recovered at the instance of accused.
14.6. Doctor's opinion as regards cause of death and as regards injuries on the body of deceased.
15. The court now proceeds to discuss each piece of evidence to find out if the charges against the accused are proved or not.
16. Eye witness account and statement of PW-4:-
16.1. PW-1 Mohd. Sagir is an eye witness in the present case and before coming to his testimony, it is important to Sessions Case No. 11/2018 Page 20/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC discuss that how and when the said witness was found by the investigating agency.
16.2. The first police officials from PS Moti Nagar, who reached the spot were PW-16 ASI Hareti Lal and PW-14 Ct. Anoop Singh. The said two police witnesses did not find any eye witness present at the spot and they have duly testified in this regard in their deposition before the court.
16.3. Both the said witness in their testimony have categorically stated that when they visited the spot, no eye witness was found present there and they came to know that the injured has already been shifted to Acharya Bhikshu Hospital by the PCR, thereafter, the said officials went to the said hospital, where PW-6 ASI Hareti Lal obtained MLC of injured Niyaz, but no eye witness was found present even at the hospital.
16.4. The rukka was prepared on the basis of the condition of the injured as mentioned in the MLC and after the registration of FIR, the investigation was marked to PW-16 SI Hira Lal, who alongwith PW-14 Constable Anoop went to the hospital and there they for the first time met eye witness PW-1 as well as PW-4. PW-16 SI Hira Lal in his testimony stated in this regard that "In the hospital, I met one Mohd. Samir Alam and Mohd. Sagir. They stated themselves to be eye witness of the present case. I recorded statement of both the said persons". Similarly PW-14 also stated "I alongwith the SI Hira Lal went to Sessions Case No. 11/2018 Page 21/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Acharya Bikshu Hospital, as SI Hira Lal was assigned with the investigation of this case. SI Hira Lal made inquiry in the hospital. Two witnesses of the occurrence namely Mohd. Samir Alam and Mohd. Sagir were found present in the hospital. IO/SI Hiral Lal recorded statement of Mohd.
Sanwar Alam and thereafter Investigating Officer with Mohd. Sagir and me proceeded to the spot". 16.5. Statements of PW-1 and 4 under Section 161 of Cr.
P.C. were recorded by PW-16 SI Hira Lal on the date of incident itself. In the said statement under Section 161 Cr. P.C. recorded on 04.09.2017, eye witness PW-1 Mohd. Sagir stated about the incident and even in his examination before the court, the said witness testified that the accused had stabbed the deceased with knife and as to how the entire incident took place.
16.6. PW-1 Mohd. Sagir in his testimony stated as under:-
"On 03.09.2017 at about 8 / 8.15 p.m, I and Niyaz were standing on the road after taking dinner. We were infront of H. No. 10 and were talking with each other. 'R' and accused Akbar @ Ganja came to us and asked for Ganja (cannabis) from Niyaz. Niyaz refused by saying that he was not having it. Both of them got infuriated. Accused Akbar @ Ganja asked 'R' to give him Samaan i.e. a knife on which 'R' handed over to him a knife. 'R' caught hold of Niyaz and Akbar @ Ganja stabbed the said knife under his chest and on his right thigh. Niyaz stated as to why he was stabbed and followed both of them while Akbar @ Ganja was going away from there after causing stab injury to Niyaz. After going to some distance, Niyaz fell down on the road. Both the said Sessions Case No. 11/2018 Page 22/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC persons i.e. 'R' and accused Akbar @ Ganja went away towards railway line.
Many public persons collected at the spot after Niyaz had fallen down on the road. Someone asked to make a call at 100 number. The PCR came and took Niyaz to hospital. I had become perplexed on seeing the blood oozing from the body of Niyaz and his condition. After sometime, I went to Acharya Bhikshu hospital situated at Moti Nagar. At the hospital, police officials met me and made enquiry from me. The examining doctor asked us to take Niyaz to DDU hospital on which Niyaz was removed to DDU hospital through ambulance. I went to my house from DDU hospital. From DDU hospital, Niyaz was referred to another hospital name of which I do not remember today but on the way to the said other hospital, Niyaz expired."
16.7. In his testimony as reproduced above, the eye witness has stated that he has seen accused stabbing the deceased in his chest and in his right thigh, however, the witness also disclosed certain additional facts in his testimony before the court, which were not disclosed by him in his statement under Section 161 Cr. P.C. Ex. PW 1/DA and the said additional fact was put to the witness in his cross examination, wherein he stated that "I stated to the police in my statement that 'R' had handed over knife to accused Akbar". As per learned counsel for accused, the said deposition is an improvement over statement under Section 161 Cr. P.C. Ex. PW 1/DA. However, the court is not inclined to accept the said argument for the reason that the said fact does not amount to any improvement at all, as it makes no difference whether the Sessions Case No. 11/2018 Page 23/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC knife which was used to commit the alleged incident was that of the accused or of the CCL. Even in the absence of the said fact, the testimony with respect to the offence alleged, is complete and covers all the ingredients of the section with which the accused is charged. The eye witness in his cross examination stated that he was not knowing the accused prior to the incident in the following lines.
"I was not knowing accused Akbar prior to the incident. I was not knowing name of his father and his residential address. I came to know about the name of accused from Niyaz, who was repeatedly saying at the time of occurrence of incident Ganje tune mujhe kyu mara."
16.8. Thus, the question which comes to the mind of the court is as to how the name, father's name and address of the accused was mentioned by Mohd. Sagir in his statement under Section 161 Cr. P.C. made to PW-16 Investigating Officer SI Hira Lal on 04.09.2017. The said question remains unanswered in the cross examination of this witness, as no question was put to him, as to how he disclosed the name, father's name and residential address of this accused in his statement under Section 161 of Cr. P.C. No specific question in this regard was put to the witness in his cross examination.
16.9. However, when the testimony of this witness is read together with the testimony of another public witness i.e. PW-4 Mohd. Samir Alam, then explanation of the aforesaid anomaly comes forth. PW-4 Mohd. Samir Alam in his Sessions Case No. 11/2018 Page 24/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC cross examination stated "I know accused Akbar @ Ganja as he resides in same locality where I reside. I know him for last 2-3 years." Thus, PW-4 knew accused Akbar @ Ganja for 2-3 years prior to the date of incident and he also knew his address as the accused was residing in the same locality where PW-4 was residing. As stated earlier PW-14 and PW-16 have stated in their testimony that they found both the eye witnesses present at the hospital when they reached there, which shows that the two witnesses came in contact with each other at the hospital before their statement was recorded by the Investigating Officer and therefore possibility of having obtained the knowledge regarding the father's name and address of accused by PW-1 from PW-4, can not be ruled out and the said possibility explains as to how the father's name and residential address of the accused is mentioned in statement under Section 161 Cr. P.C. of PW-1. 16.10. Another interesting fact in the testimony of PW-1 is that the witness did not call the police or the family member of the deceased, nor he took the victim to the hospital, despite the fact that the deceased is a co- neighbourer and a distant nephew of PW-1. However, the said fact is also explained by the witness in his testimony, as, he stated that when he saw blood on the body of deceased and his condition, he became perplexed and ran away from the spot, upon which nothing contradictory has come-forth in the cross examination. In the cross Sessions Case No. 11/2018 Page 25/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC examination, witness again stated that "I had immediately ran away from the spot after the incident. Firstly, I had returned to the spot of occurrence after sometime and thereafter I went to the hospital. When I returned to the spot after about 30 minutes, Niyaz was sill lying there and police zypsy had arrived." Thus, the witness deposed that he ran away from the spot after seeing the incident and reason for the same has already been explained in his examination in chief, when he stated that he got perplexed upon seeing the blood and condition of Niyaz. 16.11. It may be noted that the house of the said witness is just 10-15 paces from the spot where the incident took place and therefore the possibility of his having run to his home upon seeing the incident and thereafter coming back upon arrival of the police does not render the case of the prosecution weak.
16.12. Coming to the second witness i.e. PW-4. The said witness was also found by PW-14 and PW-16 at the hospital and he is also distant cousin brother of the deceased. He testified regarding what happened immediately after the incident, in the following words:-
"On 03.09.2017, at about 8.15 p.m I was standing near ring factory which is situated near my house. I was talking to one of my co-villager at that time. I saw that accused namely, Ganja and 'R' were coming towards us and Niyaz was behind them. Accused Ganja is present in the court today (Correctly identified). The complete name of Ganja is Akbar Ganja.Sessions Case No. 11/2018 Page 26/51
State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Niyaz fell down on the ground and Ganja and 'R' ran away from there. I went near Niyaz and saw him. I asked him as to what had happened on which Niyaz told me that 'R' and Ganja had stabbed knife to him. I tried to lift Niyaz from the ground but could not do so. Somebody made 100 number call on which PCR van came. We took Niyaz to Acharya Bhikshu Hospital in PCR van."
16.13. The said witness in his cross examination reiterated that he had seen accused and he also stated that PCR came at the spot after 15-20 minutes. He also corroborate the testimony of PW-1 as regards incident and also as regards the fact that accused and the CCL after committing the offence alleged ran away towards railway line. No contradiction is found in the cross examination of this witness, rather, the said witness has corroborated the testimony of PW-1.
16.14. It is interesting to note that both PW-1 and PW-4 were given suggestion that they were making false statement against accused as they were having prior enmity with him and that the deceased was also having prior enmity with the accused. However, interestingly, the accused in his statement under Section 313 Cr. P.C. did not say that he had previous enmity with the deceased or with any of the said two witnesses and he has also not disclose the reason of said previous enmity. Further, no specific question with respect to the reason for such previous enmity is put to any of these two public witnesses in their cross examination. As per the accused the entire Sessions Case No. 11/2018 Page 27/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC incident took place between the CCL and the deceased and the witnesses are "false and interested witnesses"1, who deposed against him as a revenge, since the CCL could not be given punishment. The said reasoning is contrary to the suggestions given to the said witnesses and is unacceptable because there is no reason for the said two witnesses to depose falsely, only because CCL could not be given harsh punishment. The said two witnesses would not unnecessarily and without any previous enmity falsely implicate the accused, who claims not to be present at the spot. It is interesting to note that while answering question No.59 in his statement under section 313 Cr.P.C., the accused has stated that he was not even present at the spot, but in the same answer he has also stated that entire incident took place between the CCL and the deceased without explaining as to how he obtained the knowledge of the said fact, if he was not actually present at the spot. Therefore, the suggestions for falsely testifying against the accused, given to PW-1 and PW-4 do not reflect in the reasons given by the accused in answer to the question as to why the PWs deposed against him .
16.15. Now coming to the law as regards the testimony of PW-1 and PW-4, PW-1 is an eye witness of the incident and his testimony is directly admissible under Section 60 of Indian Evidence Act. PW-2 is a witness, who had not seen the incident, but had seen the accused and CCL 1 In answer to question number 60 in statement under section 313 Cr. P.C. Sessions Case No. 11/2018 Page 28/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC running away from the spot and he is also witness to the dying declaration of the deceased. As far as his deposition regarding presence of the accused person at the spot is concerned, the same is admissible under Section 60 of Indian Evidence Act and the dying declaration of deceased is admissible under Section 32 of Indian Evidence Act. Section 32 of Indian Evidence Act provides that even VERBAL statement of relevant facts by a person who is dead are relevant, if such statement is made by the said person as to cause of his death, in cases in which the cause of that person's death comes into question. Thus, the statement of deceased to PW-1 that the CCL and accused stabbed him, is a relevant fact under Section 32 of Indian Evidence Act and also under Section 6 of Indian Evidence Act, being so connected with the incident as to form part of same transaction. Illustration
(a) of S.6 of Indian Evidence Act and illustration (a) of S.32 of Indian Evidence Act squarely apply to the testimony of PW-4.
17. Recovery of Knife 17.1. There are three witnesses of recovery of knife i.e. PW-8 HC Ombir Singh, PW-16 SI Hira Lal and PW-17 Inspector Shyoram.
17.2. All the three witnesses testified about the disclosure statement made by accused Akbar @ Ganja as well as with respect to the recovery of weapon (i.e. knife) pursuant to said disclosure at his instance from the jhuggi.
Sessions Case No. 11/2018 Page 29/51State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC 17.3. PW-8 HC ombir Singh in this regard testified as under:-
"On 4.9.2017, I was posted at police station Moti Nagar. On that day, I alongwith Inspector Shyoram Yadav and SI Hira Lal had joined the investigation of this case. On that day, we were present in the jhuggis of Zakhira and were searching for the accused persons. In the meantime, one secret informer came and told Inspector Shyoram that the wanted accused persons are seen roaming around at the railway lines. We all alongwith the secret informer went to the railway line of Zakhira. The secret informer pointed out from a distance, two persons present at the railway line. At that time, it was 7.30 p.m. We apprehended the two persons who were pointed out by the secret informer. On inquiry, they disclosed their names as Akbar @ Ganja and 'R'. During inquiry about the incident, they initially told irrelevant facts, but thereafter they stated about their involvement in the occurrence. Inspector Shyoram arrested accused Akbar @ Ganja in the case, however, as the age of 'R' was appearing to be less than 18 years, his apprehension memo was prepared. The arrest memo of accused Akbar @ Ganja is Ex.PW-8/A, bearing my signature at point A and his personal search memo is Ex.PW-8/B, bearing my signature at point A. Accused Akbar @ Ganja had given his disclosure statement to I.O Inspector Shyoram which is Ex.PW- 8/C, bearing my signature at point A. Pursuant to the disclosure statement, accused Akbar @ Ganja took us to his jhuggi I.e Jhuggi No.320, Rakhi Market, Zakhira. He went inside the jhuggi and took out one knife from the roof of the jhuggi. On measuring, total length of knife was found 21 cm and the length of its blade was 12 cm. A blood stain was found on the blade of the knife. I.O prepared the sketch of knife which is Ex.PW-Sessions Case No. 11/2018 Page 30/51
State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC 8/D, bearing my signature at point A and kept the knife in a cloth pullanda which was sealed with the seal of SR. The pullanda containing knife was seized by the I.O vide seizure memo Ex.PW-8/E, bearing my signature at point A."
17.4. PW-16 SI Hira Lal also testified in this regard as under:-
"On the same day i.e. 04.09.2017, I joined the investigation of this case with Inspector Shyoram and I along with Inspector Shyoram and HC Ombir were present in the area to search the accused persons. On the basis of secret information, we had gone to Zakhira Railway Line and at the instance of secret informer, we apprehended two persons.
persons.
On asking their names, the same were revealed as Akbar @ Ganja and Rahul. Accused Akbar @ Ganja is present in the Court today (correctly identified by the witness). On enquiry, the other person Rahul was found minor. IO arrested accused Akbar @ Ganja in this case and prepared arrest memo already exhibited as Ex.PW8/A and also prepared personal search memo of the said accused already exhibited as Ex.PW8/B. IO also recorded the disclosure statement of accused Akbar @ Ganja. The same is already exhibited as Ex.PW8/C. Above memos and disclosure statement bear my signatures at point X..................................................... Accused Akbar @ Ganja had also taken us at his Jhuggi that was Jhuggi No.320, Rakhi Market, Zakhira, Delhi and from the said Jhuggi, accused had taken out one knife and stated that he had used the said knife to cause injury to the deceased. IO prepared the sketch memo of the said knife Sessions Case No. 11/2018 Page 31/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC which is already exhibited as Ex.PW8/D and bears my signatures at point X. The pulanda of knife was prepared which was duly sealed with the seal of 'SR' and was taken into possession through seizure memo already exhibited as Ex.PW8/E which also bears my signatures at point X. IO also recorded my statement."
17.5. PW-17 Inspector Shyoram testified as under as regards recovery of knife:-
"While we were searching the accused persons in the area of Zakhira, one secret informer met us and told me that both the said accused persons are roaming around at the railway line situated in the area of Zakhira. We all reached at the railway line and apprehended two boys at the instance of the secret informer. On enquiry, names of the said boys were revealed as Akbar @ Ganja and 'R'. I made enquiry from both of them who initially stated irrelevant facts but thereafter on sustained enquiry, they admitted their involvement in the incident pertaining to this case. At about 8.30 p.m, I arrested accused Akbar @ Ganja. He is present in the court today (correctly identified by the witness). The arrest memo of accused Akbar @ Ganja is already Ex.PW-8/A bearing my signature at point C. His personal search was conducted vide memo already Ex.PW-8/B bearing my signature at point C. As accused 'R' was aged less than 18 years, the proceedings as per Juvenile Justice Act were conducted against him and his apprehension memo and other documents were prepared. The Juvenile Welfare Officer SI Hira Lal had conducted separate proceedings qua the said CCL.Sessions Case No. 11/2018 Page 32/51
State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Accused Akbar @ Ganja made a disclouser statement to me and the same is already Ex.PW-8/C bearing my signature at point C. Accused pointed out the place of occurrence vide pointing out memo already Ex.PW-8/F bearing my signature at point C. On the basis of disclosuer statement of accused Akbar @ Ganja, we went to his jhuggi which was bearing jhuggi no. 320, Rakhi Market, Zakhira. Accused took out one knife from the roof of his jhuggi made of wooden logs and Tirpal (plastic sheet). Sketch of said knife was prepared by me by putting the same on sheet of paper. The sketch is already Ex.PW-8/D bearing my signature at point C. On measuring, its total length was found 21 cm and blade was 12 cm long. Width of the blade was 2.4 c.m. The handle of knife was of aluminum whereas its blade was of iron. The said knife was kept inside a cloth pullanda and was sealed with the seal of SR. I seized the pullanda containing knife in this case vide seizure memo already Ex.PW-8/E bearing my signature at point C. Accused was taken to PS Moti Nagar. I had recorded the statement of SI Hira Lal and HC Omvir under section 161 Cr.P.C."
17.6. Learned defence counsel argued that the recovery is shrouded with doubts as there were material contradiction in the testimonies of aforesaid three witnesses with respect to the place where secret informer met them and also as regards who all were present at the time of arrest and recovery.
17.7. As per record the arrest memo Ex. PW 8/A, personal search memo Ex. PW 8/B and disclosure statement of accused Ex. PW 8/C as well as the seizure memo of knife Ex. PW 8/E were not prepared in presence of any public Sessions Case No. 11/2018 Page 33/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC witness and do not bear the signature of any public witness. As regards public witness and secret informer the three police witnesses testified as under:-
PW-8 : "The secret informer had not come to the police station on 04.09.2017 in my presence prior to the time we left the police station. I do not know if IO had ascertained the credibility of the secret informer. In my presence, on receipt of the secret information IO had not informed the senior officers from the said spot. There was no station near the railway line but there were jhuggies near the place where the accused was apprehended. It is correct that public persons were present in the jhuggie area and were roaming around at the time we apprehended the accused. IO had asked public persons to join the investigation but none had agreed. Due to paucity of time, no written notice was given by the IO to the said public persons for their refusal to join the investigation. IO had asked said public persons to join the proceedings prior to arrest of accused. Accused and child in conflict with law (CCL) were going on foot on the railway track at the time we saw them.
After apprehending the accused and CCL IO had not asked any public person to join the proceedings. After about 15-20 minutes of apprehending of the accused, IO had started writing the disclosuer statement. Accused was apprehended at about 7.30 p.m. The disclosuer statement Ex.PW-8/C is in the handwriting of the IO Inspector Shyoram. IO had recorded the facts disclosed by the accused in the disclouser statement. We had remained present at the spot of arrest of the accused for about 1 - 1 ½ hour. It is correct that accused is resident of jhuggie cluster of Zakhira situated near the spot of arrest.Sessions Case No. 11/2018 Page 34/51
State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Jhuggie of accused was a small jhuggie and two cots can be accommodated in the same. The said jhuggie was constructed up to ground floor only. The roof of the jhuggie was a temporary structure made up of tirpal, wooden logs etc. The knife was found concealed inside the jhuggie in between tirpal and wooden logs in the roof of the jhuggie. There was only one entry gate in the jhuggie. The knife was taken out by the accused from the right side of the jhuggie after entering into it. IO had not recorded statement of any neighbour of the accused though he had made enquiry from them. Mother of accused was found present in the jhuggie at that time. We left the jhuggie of the accused after about 30 minutes."
PW-16: "On 04.09.2017, I had joined the investigation of the present case with the IO at about 6.00 PM. We had made search of the accused in the area of Zakhira only. The secret informer met with the IO in the police station at about 6.00 PM only. We left the PS on 04.09.2017 at about 6.00 PM. I had not made any departure entry at that time but IO had made the same.
We had used private vehicle in making search of the accused in the area of Zakhira. At the time of apprehension of accused Akbar @ Ganja and 'R', there were some public persons present. However, none of them joined the proceedings despite asking by the IO and had left from there without disclosing their names and addresses. The disclosure statement of accused Akbar @ Ganja was recorded by the IO at the spot itself in his own handwriting.
We had reached on the road in front of Plot No.19 along with accused Akbar @ Ganja at around 9.15-9.20 PM on that day. We remained there for about 20 minutes. We along with the accused reached at his Jhuggi at about 10.00-10.15 PM. It was a single room Jhuggi only Sessions Case No. 11/2018 Page 35/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC on the ground floor. The accused took out the knife from under the roof made of 'Tirpal' and wooden logs. I do not remember if the place from where the accused took out the knife was situated on the right hand direction or left hand direction from the entrance. At that time, no one was present in the said Jhuggi. IO had not recorded the statement of any neighbour in my presence. No public person had agreed to join the recovery proceedings despite asking by the IO. We remained at the Jhuggi for about 30 minutes." PW-19: "Secret informer met us about 7:00 p.m., in the area of Zakhira. I had verified the facts narrated by the secret informer by putting cross questions. I had not given information in writing about the secret information, to SHO or any other senior officer. (Vol. As there were chances of escape of the accused, I had not done so in order to save the time).
We had used private vehicle i.e my own car in reaching the area. of Zakhira. I had not maintained reading of kilometer area for using the private car. (Vol. It was hardly two kilometer/two and half kilometer). I had not claimed the petrol charges from the department for using the said vehicle.
We reached at the railway track at about 7:15 p.m. Some public persons were coming and going at the time we apprehended the accused and CCL. I had asked some of the public persons to join the investigation, but they refused. I had not given notice in writing to the said public persons. We remained present at the railway track for about an hour. It is correct that I have not placed on record the documents pertaining to apprehension of CCL. Information of arrest of accused Akbar @ Ganja was given by me to his mother when we had reached at the jhuggi of the accused. We had reached at the spot Sessions Case No. 11/2018 Page 36/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC from railway track at about 9:00 p.m. It is correct that some public persons were present at the place of occurrence at the time of preparation of the pointing out memo. I had asked the said public persons to join the investigation, but they had refused. I had not given notice in writing to the said public persons. Disclosure statement of accused was recorded at the time of arrest of the accused. The disclosure statement is in my handwriting.
We reached at the jhuggi of the accused at about 10:00 p.m. Jhuggi of the accused was situated in the jhuggi cluster having streets. The area of the jhuggi was sufficient to accommodate only two cots. It was single storyed jhuggi. Mother of the accused was present at the jhuggi. The area of roof from which the accused had taken out the knife was situated at the right side of jhuggi if we enter from main entrance. I had not recorded the statements of the neighborers of the accused. (Vol. None of the neighborer of the accused was ready to become witness in this regard). I had not given notice in writing to any of the neighborer of the accused. I had not got the recovery proceedings video-graphed or photographed. I had not prepared the site plan of jhuggi of the accused. We left the jhuggi at about 10:15 p.m/10:30 p.m."
17.8. It is true that there is contradiction in the testimonies of PW-8, PW-16 and PW-17 as regards where the secret informer met the said police officials, however, the said contradiction does not go to the root of the case and certain contradictions are bound to occur in the testimonies of witnesses.
18. Learned Defence counsel argued that neither the mother nor any other neighbour was involved in Sessions Case No. 11/2018 Page 37/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC investigation, particularly while recovering the weapon of offence (Knife) at the instance of the accused. As regards joining of public witness is concerned, all the aforesaid three witnesses stated that efforts were made by Investigation Officer to join public witnesses but none agreed. Though, it is correct that notices should have been given to the witnesses and their names and addresses and reason for refusal to join investigation should have been recorded, but at the same time the court can not loose sight of the hard realities of life. The accused resides in jhuggi and the incident also took place near the jhuggies, and in a murder case no one wants to get involved, specially those belonging to economic weaker sections of the society who have almost no means and resources to protect themselves. There have been instances where murders are committed in public place in broad day light in the presence of several public persons, but none comes forward to save or help the victim, rather the public disperses from such area. These hard realities of life have to be borne in mind while appreciating evidence and in the opinion of the court merely because public persons were not involved in the recovery of weapon, does not render the recovery of weapon doubtful.
19. Further, as regards not involving mother of accused in investigation while recovering the knife, the court is of the opinion that relatives of the accused in such investigation only weakens the case of prosecution, as such witnesses subsequently depose in favour of the accused, thereby shrouding with doubts a genuine recovery / investigation.
Sessions Case No. 11/2018 Page 38/51State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Relatives of the accused would also be willing to join investigation as that will finally help the accused during trial, hence the relative should be joined in investigation only in rare and exceptional circumstances. However, in case no public witness is available or ready to join investigation, then the investigating officer should make use of technology i.e. the mobile phone or digital camera and record as to how the recovery was effected. Such video recording for recovery could rather would, further strengthen the case of the prosecution.
20. It may however be noted that the three witnesses of recovery of knife corroborated each other as regards the place of recovery (roof of the jhuggi), the point of recovery (right side of jhuggi) and regarding the material of which the roof was made. The three witnesses also corroborated each other as regards the fact that despite efforts by the Investigating Officer no public person joined investigation.
21. Accordingly, the recovery of knife at the instance of the accused stands proved from the testimony of the aforesaid three police witnesses and the knowledge of the accused to this affect contained in his disclosure statement stands proved under Section 27 of Indian Evidence Act.
22. As regards recovery of knife and the report of expert that the blood on the same matched with blood of deceased found on other exhibits, learned counsel for accused submitted that mere matching of DNA on the blood on knife with other exhibits is not sufficient to connect the accused to the offence alleged. In this regard the learned counsel relied Sessions Case No. 11/2018 Page 39/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC upon para 53 to 55 of judgment titled Prahlad Vs. State (Supra), which are reproduced as under:-
"53. the prosecution has also not explained how the blood stains on the slab were unable to be matched with the blood of the deceased. It is only the DNA profile of the blood stains on the pants of the accused that matched with the DNA of the blood of the deceased. However, this was by itself not conclusive because the manner of arrest of the two Appellants and the subsequent disclosure and seizures has not been conclusively proved by the prosecution.
54. it appears that the prosecution has placed extensive reliance on the eye-witness's testimonies and did not pay attention to the corroborating evidence including that of forensic evidence, the evidence relating to arrest and the evidence relating to recovery. None of them corroborated what is stated by these eye-witnesses.
55. The Court is, therefore, unable to agree with the conclusion reached by the trial Court that the medical evidence corroborates the eye-witness versions and links both the accused to the main incident as well as their presence at the spot. In fact the presence of the accused does not stand proved if PW-3 is disbelieved. Merely because the blood of the victim was found on their trousers cannot, as a solitary circumstance, be sufficient to link them to the crime. Why they would continue wearing those trousers and be waiting around to be arrested from an open parking place in the vicinity has not Sessions Case No. 11/2018 Page 40/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC been explained at all. Why they would not run away after having committed such a heinous crime is not explained. These are two serious questions which cannot be brushed aside as being inconsequential."
23. In the said case the testimony of eye witness was found to be untrustworthy and in those circumstances it was held that "Merely because the blood of the victim was found on their trousers can not, as a solitary circumstance, be sufficient to link them to the crime". In the present case the DNA report is not the only ground to conclude that the accused committed the offence alleged. In this case the testimony of PW-1 (eye witness) is found to be trustworthy and there is no reason to disbelieve his testimony. The said testimony is further corroborated by the testimony of PW-4 and their testimonies together with the DNA report strengthen the case of prosecution. Further, in the said case the prosecution failed to explain as to how the blood stains on the slab were unable to match with the blood of deceased, whereas, in present case all the exhibits were found to match with the blood of the deceased.
24. It was strongly argued that why would the accused not run away from the place, if he had actually committed such a heinous offence and why would he hide the knife in his own jhuggi and throw the clothes in a train. In this regard, para 55 of the aforesaid judgment was read out by learned defence counsel.
25. However, the court is of the opinion that the facts of the aforesaid case are different for the reason that in the Sessions Case No. 11/2018 Page 41/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC aforesaid case the accused were found wearing same clothes in an open parking near the spot, whereas in the present case the accused managed to get rid of the clothes that he was wearing and his jhuggi itself was situated near the spot. If the accused had ran away after the incident from his jhuggi, the suspicion against him would have grown stronger. As regards why the accused kept the knife in the jhuggi, it may be noted that the accused was arrested within one day of the incident and by that time he managed to get rid of the clothes that he was wearing at the time of incident. Thus, he might have kept the knife in the roof of the jhuggi so as to get rid of it as well, as and when he gets the opportunity to do so. Moreover, if the knife with blood stains could be planted by investigating agency, then even clothes with blood stains could also be planted. Further, the case against accused is not only based on the DNA report, but also on the testimony of two public witnesses, who corroborated each other in material particulars and who had no previous enmity with the accused.
26. Expert opinion:-
26.1. The knife (weapon of offence) which was recovered at the instance of the accused was sent by the IO to FSL for comparison with the earth control etc lifted from the spot, the clothes of the deceased as well as the blood of the deceased.
26.2. As per FSL report dated 05.03.2018, Exhibit 2 (concrete pieces ), Exhibit 3 (shoe of deceased), Exhibit 5 (concrete pie), Exhibit 6 (blood in gauze cloth piece), Sessions Case No. 11/2018 Page 42/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Exhibit 7 (shoe of deceased) , Exhibit 8 (jeans pant of deceased), Exhibit 9 (blood in gauze) and Exhibit 10 (knife) were found to be similar to each other, meaning thereby that the knife (recovered at the instance of accused from his juhggi) was found to be having stains of blood of deceased. The said report has been challenged by the Ld. Defence counsel on the ground that the same is not based upon any data as Allelic Chart was never filed by the expert (i.e. PW-15 Soni Kampa) either with the report or during cross-examination.
26.3. In order to understand the contact, it is necessary to reproduce the cross-examination of PW-15 Soni Kampa which is as under:-
"I have been working in FSL Rohini on contract basis since 2011. It is wrong to suggest that the examination report of an expert on contract with FSL has to be counter-signed by the Director of FSL. Vol. The report is to be forwarded by the Director and the forwarding letter on record is duly signed by the Director ( the said forwarding letter is Ex.PW-15/B)."
I have given more than 400 reports prior to this case. It is correct that I had prepared rough notes at the time of examining the Exhibits. It is correct that Allelic chart is prepared at the time of DNA examination. It is correct that I have not mentioned the Allelic details in the report Ex. PW15/A. (Vol. I have not annexed the Allelic chart with the report as it was used in drawing the conclusion and I have already mentioned the conclusion of the Sessions Case No. 11/2018 Page 43/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC DNA examination in the report itself.) The Allelic details of each of the exhibit is examined while it is in the machine itself and not from the print out. Ex.10 i. e. knife was having visible brown stains which turned out to be blood stains on examination. I had examined the origin of blood and had found it of human origin only. It is correct that I have not mentioned in my report Ex.PW15/A that the blood detected on the exhibits was of human origin. Vol. If during examination, the blood would have been found to be of not human origin, I would have mentioned it specifically in the report. It is wrong to suggest that I prepared the report in a mechanical manner without application of mind. It is wrong to suggest that I am not competent to prepare the report Ex.PW15/A as being on contractual service in the FSL."
26.4. PW-15, in her cross-examination, admitted that Allelic Chart is prepared at the time of DNA examination and she also admitted that she prepared rough notes at the time of examining the Exhibits. She further admitted that Allelic Charts were not mentioned in the report Ex.PW-15/A, however, at the same time she stated that allelic details of each Exhibits are examined while it is in the machine itself and not from print out. The purpose of allelic details is to compare the same to reach the conclusion whether the DNA profile is same or not. In the present case, the said details were not filed, but that does not render the report inadmissible or of any less evidentiary value, as the Sessions Case No. 11/2018 Page 44/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC said allelic details are required to compare the DNA even without taking print out one can compare the same in rough notes only. Comparison of allelic details is different from comparison of finger print and handwriting because in comparing finger print and handwriting reports may differ, but in comparing the DNA profile, no expertise is required. Expertise is required in generating DNA profile, but once generated for different Exhibits, the comparison of allelic details do not require much expertise and the conclusion of such comparison cannot differ in view of the science involved in comparison of DNA profiles. 26.5. Thus, report Ex.PW-15/A prepared on the basis of rough notes is admissible and reliable and there is no reason to discard the same.
27. Cause of death- Doctor's opinion 27.1. Postmortem examination report Ex.PW-9/A mentions the cause of death as under:-
"The cause of death to the best of my knowledge and belief is hemorrhagic shock due to injury no. 1 caused by sharp edged weapon which is sufficient to cause death in ordinary course of nature. All injuries are ante mortem in nature."
27.2. The external injuries have been mentioned on page 2 of the report as under:-
"External Injuries (Type, Size,Shape,Location, Direction, etc...) 1. Stitched wound of size 3 cm Present on left fifth anterior axillary line, wound when opened was an elliptical wound with size 2.5x1cm which was 18 cm Sessions Case No. 11/2018 Page 45/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC from midline, 118 cm from heel 17 cm from acromion process. The wound when traced pierced into the chest wall and then in below fourth ribs and then into lower lobe of left lunch collapsing the lung area of 3cmx1cm and then into the pericardium and into the left ventricle in lower aspect in area of 2x1cm. The wound direction was medially downward.
Stitched wound of size 2 cm present on rt. Thigh 57 cm from heel 11 cm from knee joint and 25 cm from anterior superior iliac spine. The wound on opening was an elliptical shaped wound with size 2.5x1.3 cm on cut opening it penetrated into skin, superficial fascia subcutaneous fat and then into muscle sheath."
27.3. Subsequent opinion as regards knife was also obtained which is Ex.PW-9/B and the opinion given is as under:-
"On perusal of above mentioned references we are of the considered opinion that injury no.1 and injury no. 2 mentioned in post mortem report could be caused by this or similar type of weapon, and after examination the alleged weapon of offence is sealed back in the same Pulinda after reversal mentioning the details of the case and sealed with the seal of "SG"."
27.4. PW-9 Dr. Sachin Mittal was examined as regard the said opinions and he duly exhibited the report as Ex.PW- 9/A and subsequent opinion as Ex.PW-9/B and B1. He also reiterated the opinion given in reports in his Sessions Case No. 11/2018 Page 46/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC examination in chief. The cross-examination of this witness is reproduced as under:-
"Alleged history of assault mentioned in the postmortem examination report was on the basis of the inquest papers submitted by the police with the request for autopsy. Besides me and Dr. Shalini the supporting staff i.e. postmortem attendant and technician were present during the PM examination. I have conducted around 600 postmortem examination till date. It is wrong to suggest that I and the Dr. Shalini Girdhar have prepared the PM report and subsequent opinion in mechanical manner."
27.5. Nothing has come forth in the cross-examination of this witness to prove that the opinion given by him is incorrect.
27.6. Thus, from the testimony of this witness, it stands proved that the knife Ex. MO-1 could have caused injury no.1 and as mentioned above and that injury no. 1 caused by sharp edged weapon was sufficient to cause death in ordinary course of nature.
28. Conclusion: In the entire set of circumstances, as discussed above, in my considered opinion, make the chain complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. All the facts and circumstances unerringly point out towards the fact that it was the accused and accused only who can be held liable for committing murder of Niyaz (deceased).
Sessions Case No. 11/2018 Page 47/51State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC 28.1. Now that it stands proved that the accused committed offence of murder as defined in Section 300 IPC, the question before the court is : Whether the present case falls in exception (1) or exception (4), to bring it out of ambit of Section 300 IPC?
28.2. Learned counsel for accused relied upon judgment titled Rampal Singh Vs. State (Supra) to argue that the present case falls in the first exception to Section 300 IPC i.e. grave and sudden provocation Para 26 to 28 of the said judgment are reproduced as under;-
"26. From the above statement of this witness, it is clear that there was heated exchange of words between the deceased and the Appellant. The deceased had thrown the Appellant on the ground. They were separated by Amar Singh and Ram Saran. She also admits that her husband had told the Appellant that he could shoot at him if he had the courage. It was upon this provocation that the Appellant fired the shot which hit the deceased in his stomach and ultimately resulted in his death.
27. another very important aspect is that it is not a case of previous animosity. There is nothing on record to show that the relation between the families of the deceased and the Appellant was not cordial. On the contrary, there is evidence that the relations between them were cordial, as deposed by PW1. The dispute between the parties arose with a specific reference to Sessions Case No. 11/2018 Page 48/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC the ladauri. It is clear that the Appellant had not committed the crime with any pre-meditation. There was no intention on his part to kill. The entire incident happened within a very short span of time. The deceased and the Appellant had had an altercation and the appellant was thrown on the ground by the deceased, his own relation. It was in that state of anger that the Appellant went to his house, took out the rifle and from a distance, i.e., from the roof of Muneshwar, he shot at the deceased. But before shooting, he expressed his intention to shoot by warning his brother to keep away. He actually fired in response to the challenge that was thrown at him by the deceased. It is true that there was knowledge on the part of the Appellant that if he used the rifle and shot at the deceased, the possibility of the deceased being killed could not be ruled out. He was a person from the armed forces and was fully aware of consequences of use of fire arms. But this is not necessarily conclusive of the fact that there was intention on the part of the Appellant to kill his brother, the deceased. The intention probably was to merely cause bodily injury. However, the Court cannot overlook the fact that the Appellant had the knowledge that such injury could result in death of the deceased. He only fired one shot at the deceased and ran away. That shot was aimed at the lower part of the body i.e. the stomach of the deceased. As per the statement of PW2, Dr. a.K. Sessions Case No. 11/2018 Page 49/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC Rastogi, there was a stitched would obliquely placed on the right iliac tossa which show the part of the body the Appellant aimed at.
28. This evidence, examined in its entirety, shows that without any pre-meditation, the Appellant committed the offence. The same, however, was done with the intent to cause a bodily injury which could result in death of the deceased."
28.3. Coming to the facts of the present case, the eye witness PW-1 Mohd. Sagir never testified either in his examination in chief or in his cross examination that the deceased provoked the accused in any manner. The facts of the present case are very different from the aforesaid case, where the deceased challenged the culprit to fire and the fire was aimed at lower part of the body, that too only one shot. In the present case there was no such challenge or provocation by the deceased, who had merely denied to give cannabis (ganja) to the accused and the stab wound is also in the chest i.e. material part of body, besides on the leg. Thus, there is no grave or sudden provocation by the deceased which resulted into the incident and death of the deceased.
28.4. The fourth exception relates to causing of death without pre-meditation in a sudden fight. 28.5. The term "sudden death" is not defined in IPC, however, it implied mutual provocation and blows on each side. In the present case there is no sudden fight. The Sessions Case No. 11/2018 Page 50/51 State Vs Akbar @ Ganja FIR No.319/2017 PS Moti Nagar U/s 302/34 IPC accused got enraged by the fact that the deceased refused to give ganja (cannabis) to him. There is no evidence of any sudden figt between the parties. Rather, the accused was accompanied by CCL whereas the deceased was alone and without any fight provocation or blows the accused enraged by the refusal of the deceased to give him cannabis, stabbed him with knife twice, with the help of CCL.
28.6. Thus, in the opinion of the court, the present case do not fall in any of the exception to Section 300 IPC.
29. Conviction Order 29.1. I accordingly hold the accused Akbar @ Ganja son of Sh. Sabir guilty for commission of offence punishable under section 302 read with Section 34 of IPC and convict him under the said section.
29.2. Let the convict be heard on the quantum of sentence.
SAURABH Digitally signed by
PARTAP SAURABH PARTAP
(Pronounced in the open SINGH LALER SINGH LALER
Court on 29.09.2018) (S.P.S Laler)
Additional Sessions Judge (Pilot Court) West:Court No. 33: Tis Hazari Courts Delhi Sessions Case No. 11/2018 Page 51/51