Full Text
HIGH COURT OF DELHI
CRL.A. 61/2019
IN THE MATTER OF:
AKBAR @ GANJA ..... Appellant
Through : Mr. C. Mohan Rao, Advocate (DHCLSC) with Mr. Lokesh K.
Sharma, Advocate
Through : Ms. Aashaa Tiwari, APP
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI MANOJ KUMAR OHRI, J.
JUDGMENT
1. The present appeal has been filed challenging the judgment of conviction dated 29.09.2018 and order on sentence dated 29.09.2018, arising out of Sessions Case No.11/2018 in FIR No.319/2017, P.S. Moti Nagar whereby the appellant had been convicted for the offence punishable under Sections 302/34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default of payment of fine, to further undergo RI for six months.
2. The case of the prosecution, as noted by the trial court, is: “As per the prosecution story, on receipt of DD No.42A regarding stabbing near Ram Dharam Kanta, 2019:DHC:2861 Zakhira Gol Chakkar, Moti Nagar, ASI Hareti Lal along with 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 injures 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 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 eyewitness of the incident and he informed the IO that on 03.09.2017 at about 8.15 p.m. in his presence, ‘R’ son of SS and Akbar @ Ganja son of Satbir 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 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 disclosure 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, charge sheet was filed under Section 302/34 IPC. On 06.01.2018, charge was framed against the appellant for offence punishable under Section 302 IPC. During the course of trial, the prosecution examined a total of 17 witnesses.
┌─────────────────────────────────────────────────────────────────────────────────────┐ │ SL. NAME OF EXHIBIT DO NATURE OF │ │ NO. PROSECUTION CUMENTARY TESTIMONY │ │ WITNESS │ │ PW-1 MOHD. SAGIR PW-1/A Site plan without Being an eye- │ │ S/O SH. SAHAB scale witness, │ │ JAIN deposed about │ │ PW-1/DA Confronted with the incident. │ │ the statement u/S │ │ 161 Cr.P.C. │ │ PW-2 MS. NARGIS W/O PW-2/A Statement for She identified │ │ SH. JAFFAR identification of the dead body │ │ dead body of deceased in │ │ CRL A 61/2019 Page 3 of 18 │ │ 2019:DHC:2861 │ │ PW-2/B Receipt of dead the hospital. │ │ body │ │ PW-3 HC JAG RAM He shifted the │ │ deceased to the │ │ hospital in │ │ injured │ │ condition. │ │ PW-4 MOHD. SANWAR Deposed about │ │ ALAM the incident. │ │ PW-5 PRABHANSHU He made call │ │ S/O. SH. RAM at 100 number │ │ LAL informing │ │ about the │ │ incident. │ └─────────────────────────────────────────────────────────────────────────────────────┘
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.” MLC
7. MLC of Niyaz (deceased) was recorded by Dr. S.K. Kaakran (PW-
10) at about 8:55 pm on 03.09.2017. As per the said MLC, he was shown to have been brought by HC Jag Ram (PW-3). The MLC mentioned ‘History of Physical Assault at Rakhi Market, Zakhira’, as told by PW-3. Post Mortem Report.
8. The post mortem on the body of the deceased was conducted by Dr. Sachin Mittal (PW-9) on 04.09.2017 at about 2:45 PM. He proved the PM Report as Ex. PW-9/A, the relevant portion whereof is reproduced hereinbelow. “5. 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 from midline, 118cm 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 lung collapsing the lung in 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.
2. Stitched wound of size 2cm present on rt. Thigh 57 cm from heel 11 cm from knee joint and 25 cm from anterior iliac spine. The wound on opening was an elliptical shaped wound with size 2.5x[1].[3] cm on cut opening it penetrated into skin, superficial fascia subcutaneous fat and then into muscle sheath.
(C) CHEST (Thorax)
3 Trachea and Bronchi Congested 4 Pleural Cavities: NAD 5 Lungs Right pale wt. 450 grams Left Collapsed shrunken in consistency rest as mentioned
(I) OPINION
The cause of death to the best of my knowledge and belief is haemorrhagic shock due 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.” Subsequent Opinion.
9. Dr. Sachin Mittal proved his subsequent opinion after examining the knife (Ex. PW-9/B) and observed as below:- “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”.” FSL
10. Samples collected from the spot, samples handed over by the PM doctor and the knife recovered at the instance of the appellant were sent for an analysis to the FSL. Blood was detected on the blood-stained stone, blood-stained shoes and jeans-pants. The DNA profile analysis was performed on these exhibits and it was concluded that the DNA profile generated from the source exhibits, which included blood-stained stone, blood-stained shoes and jeans-pants, matched with the DNA profile generated from the source of knife. Analysis
11. The prosecution case began with DD 42A recorded at about 8:30 pm on 03.09.2017. The said DD was marked to SI Hira Lal (PW-16) and Ct. Anoop Singh (PW-14), who reached the spot, however, they did not find any witness at the spot. They came to know that the injured had already been removed by the PCR van to Acharya Bhikshu Hospital. On reaching the hospital, they obtained the MLC of the injured Niyaz, on the basis whereof a Rukka was prepared and sent to the police station for registration of the FIR. As per the testimony of the above police witnesses, they met Mohd. Sagir (PW-1) and Mohd. Sanwar Alam (PW-4) in the hospital and recorded their statements. Material Witnesses
12. The prosecution case rests on the testimony of the eyewitness, Mohd. Sagir (PW-1). He deposed that on 03.09.2017 at about 8/8:15 pm, he and Niyaz (deceased) were standing on the road after having dinner and they were standing in front of House no. 10, when the appellant, along with the juvenile ‘R’ approached them and asked Niyaz for Ganja (cannabis). On refusal by Niyaz, both got infuriated. Then the appellant asked ‘R’ to give him samaan on which, the juvenile ‘R’ handed over a knife to him. Thereafter, ‘R’ caught hold of Niyaz and the appellant stabbed him on his chest and right thigh, with the said knife. After that, when the appellant and the juvenile ‘R’ were walking away, Niyaz followed them and asked them as to why they had stabbed him. After walking for a few steps, Niyaz collapsed. The witness saw that the appellant along with ‘R’ had proceeded towards the railway line.
13. PW-1 further deposed that many public persons had gathered at the spot and someone gave a call at 100 number. The PCR van came and took Niyaz to the hospital. He deposed that he became perplexed and after sometime went to the hospital. On a leading question posed by the learned APP, the witness clarified that the I.O. had made enquiries from him and had prepared the site plan at his pointing out. He identified the appellant in the Court. During his cross examination, he was confronted with his earlier statement (EX.PW-1/DA) where he had not stated that it was ‘R’, who handed over the knife to the appellant. He also stated that he did not know the appellant prior to the date of incident and had come to know about his name when Niyaz was repeatedly asking - ‘Ganje tune muje kyu mara’. He stated that Niyaz was not a drug peddler/Ganja supplier but he used to consume Ganja sometimes. He stated that after the incident, he had gone away from the spot and returned back after about 30 minutes while Niyaz was still lying there and the PCR had arrived at the spot.
14. The prosecution examined Mohd. Sanwar Alam as PW-4. He deposed that he was distantly related to the deceased, being his cousin. On 03.09.2017 at about 8:15 pm, he was standing near the ring factory situated near his home when he saw the appellant and ‘R’ coming towards him. They were followed by Niyaz. He saw that Niyaz fell on the ground and the appellant and ‘R’ ran away from there. The witness went upto Niyaz and on enquiring from him, he told him that ‘R’ and the appellant had stabbed him with a knife. The witness took Niyaz in a PCR van to Acharya Bhikshu Hospital. He stated that later, Niyaz was shifted to DDU Hospital and then to RML Hospital. During his cross examination, the witness clarified that the appellant being a resident of the same locality, was known to him for the last about 2-3 years. He denied that Mohd. Sagir (PW-1) was related to him. He denied the suggestion that Niyaz did not tell him that it was the appellant who had stabbed him with a knife.
15. The testimony of Mohd. Sanwar Alam (PW-4) is corroborated by the testimony of HC Jag Ram, (PW-3) who was in-charge of the PCR Van. He deposed that on 03.09.2017, a message was received at about 8:35 pm that one person had been stabbed with a knife near Ram Dharam Kanta, Zakhira, near the roundabout, Chara Mandi, Moti Nagar. On reaching at the spot, he found the injured with stab injuries on the left side of his chest and the right thigh. He removed the injured to Acharya Bhikshu Hospital and one person, who told his name as Mohd. Sanwar Alam, had also accompanied him in the PCR van. During the cross examination, no suggestion was given to the said witness that he did not meet PW-4 at the spot or that he did not accompany him in the PCR van to the hospital.
16. The fact that PW-4 was present at the spot, stood proved by the testimony of HC Jag Ram (PW-3). It also stood proved that Niyaz was removed to the hospital by the PCR van in which PW-4 had also accompanied them. It was contended by the learned counsel for the appellant that Mohd. Sagir (PW-1), did not mention in his testimony about the presence of Mohd. Sanwar Alam (PW-4) at the spot. A closer look at the testimony of Mohd. Sagir (PW-1) reveals that on seeing blood oozing out of Niyaz’s body, the said witness had become perplexed and had gone away. He returned to the spot after about 30 minutes, when he saw that public persons had gathered there and the PCR van was taking the injured to the hospital. Arrest and Recovery
17. The prosecution examined HC Ombir Singh (PW-8), SI Hira Lal (PW-16) and Insp. Shyoram (PW-17) to prove the arrest of the appellant and pursuant to his disclosure, recovery of the blood-stained knife on 04.09.2017 from his jhuggi. It was stated that the knife was recovered from the roof of the jhuggi, made up of tirpal (plastic cover) and wooden logs. The sketch of the knife was prepared (Ex. PW-8/D) and was seized vide seizure memo (Ex. PW-8/E).
18. We do not find any merit in the submission made by learned counsel for the appellant that there were discrepancies in the statements of the police witnesses as to where they had met the secret informer who had told them about the whereabouts of the appellant. All the police witnesses have consistently stated that pursuant to receiving the information, the appellant was arrested and that the knife was got recovered by him from the right side of his jhuggi’s roof. Dying Declaration
19. It has come in the testimony of Mohd. Sanwar Alam (PW-4) that on his enquiring from Niyaz (deceased) he had told him that he was stabbed by the appellant and ‘R’. The law on dying declaration is well settled. In this context, reference is made to the decision of the Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra reported as (1984) 4 SCC 116 wherein it was held as under:
20. As per the evidence on record, the deceased succumbed to his injuries on 04.09.2017. The Post Mortem which was concluded at about 4 p.m. on 04.09.2017, mentions the ‘time since death’ as about 12 hours. Tracing backwards, in terms of the said Post Mortem report, the death of the deceased had occurred at about 4 a.m., i.e., in the early morning hours of 04.09.2017. The deceased remained in the hospital from 8:55 p.m. i.e, from the time of his admission till the time he succumbed to his injuries in the hospital. In terms of the deposition of Mohd. Sagir (PW-1) corroborated by the PM report, the subsequent opinion in the FSL report and the DNA analysis, it stands adequately proved that Niyaz had succumbed to his injuries which were caused by the knife (Ex. P-10). The oral statement made by the deceased to Mohd. Sanwar Alam (PW-4) is in relation to the cause of his death and is thus, admissible in evidence under Section 32 of the Indian Evidence Act. The oral statement made by the deceased to PW-4 finds support not only from the testimony of PW- 1, but also from the scientific evidence brought on record.
21. Lastly, it was argued that, in the alternative, the appellant’s conviction be modified to one under Section 304 Part-II IPC. In support thereof reliance was placed on Laxmichand alias Balbutya vs. State of Maharashtra reported as (2011) 2 SCC 128, Rampal Singh vs. State of Uttar Pradesh reported as (2012) 8 SCC 289 and Gudu Ram vs. State of Himachal Pradesh reported as (2013) 11 SCC 546. In our opinion, the present case does not fall under any of the exceptions carved out in Section 300 IPC. There was neither any sudden fight, nor any heated exchanged of words between the deceased and the appellant. On the contrary, it has come on record that the appellant asked the Juvenile ‘R’ for the samaan (knife) and after taking, he stabbed Niyaz twice on his chest and right thigh. It has also come on record that after being stabbed, the deceased had walked to some distance and he kept on asking the appellant as to why had he stabbed him. Conclusion:
22. We are therefore of the opinion that the prosecution has successfully established its case against the appellant, not only on the basis of the testimony of Mohd. Sagir (PW-1), but also on the basis of the ‘dying declaration’ which was proved by Mohd. Sanwar Alam (PW-4) duly corroborated by the scientific evidence placed on record in the form of the PM report, the subsequent opinion on the weapon of offence, i.e., the blood-stained knife, the FSL report and the DNA analysis report.
23. Resultantly, we do not find any merit in the present appeal for interfering with the impugned judgment of conviction and order of sentence that is upheld. The appeal is consequently, dismissed. Trial court record be sent back along with a copy of this judgment. A copy of this judgment be also sent to the appellant through the Jail Superintendent.
(MANOJ KUMAR OHRI) JUDGE (HIMA KOHLI)
JUDGE MAY 24th, 2019 sm