Delhi High Court
Akbar @ Ganja vs State & Anr. on 24 May, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A. 61/2019
Reserved on : 29.03.2019.
Date of Decision : 24.05.2019.
IN THE MATTER OF:
AKBAR @ GANJA ..... Appellant
Through : Mr. C. Mohan Rao, Advocate
(DHCLSC) with Mr. Lokesh K.
Sharma, Advocate
versus
STATE ..... Respondent
Through : Ms. Aashaa Tiwari, APP
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
MANOJ KUMAR OHRI, J.
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,
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
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.
PW-6 ASI HARETI LAL PW-6/A Seizure memo of Deposed about
blood-stained reaching at the
jeans spot on receipt
of DD No.42 A
dated
03.09.2017. He
prepared rukka
PW-6/B Rukka for registration
of FIR.
PW-7 ASI OM PW-7/A Scaled site plan At the instance
PRAKASH of IO, visited
the place of
incident on
14.09.2017
and prepared
the scaled site
plan.
PW-8 HC OMBIR PW-8/A Arrest memo of Deposed about
SINGH accused apprehending
and arresting
PW-8/B Personal search accused Akbar
memo of accused @ Ganja. He
PW-8/C Disclosure is also a
statement of witness to
accused personal
search of
PW-8/D Sketch of accused and
recovered knife recovery of
weapon of
PW-8/E Seizure memo of
offence as well
knife
as pointing out
PW-8/F Pointing out of place of
memo of accused occurrence.
PW-9 DR. SACHIN PW-9/A Postmortem Conducted the
MITTAL, examination postmortem
CASUALTY report examination of
MEDICAL the deceased
OFFICER PW-9/B & Subsequent on 04.09.2017.
opinion regarding He also gave
PW-9/B1 knife
the subsequent
opinion
regarding the
knife.
PW-10 DR. S.K. PW-10/A Prepared MLC
KAAKRAN, CMO of the deceased
when he was
brought to the
hospital in an
injured
condition 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 PW- Entry No.3245/17 Sent the case
KUMAR 13/A(OSR) in register no.19 property to
(MHC(M)) FSL Rohini on
PW- Entry No.3246/17 different dates.
13/B(OSR) in register no.19
PW- Entry No.3251/17
13/C(OR) in register no.19
PW- Entry vide RC No.
13/D(OSR) 83/21/17 in
register no.21
PW- Entry vide RC No.
13/E(OSR) 95/21/17 in
register no.21
PW- Entry vide RC No.
13/F(OSR) 96/21/17 in
register no.21
PW- FSL
13/G(OSR) acknowledgement
PW- FSL
13/H(OSR) acknowledgement
PW-14 CT. ANOOP PW-14/A Seizure memo of Deposed about
SINGH exhibits near plot the
PW-14/B no.136 (blood investigation.
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
CHEMICAL examination of
EXAMINER PW-15/B Forwarding letter sealed parcels
(BIOLOGY), of abovesaid FSL in connection
(FSL) with the
report
present case.
PW-16 SI HIRA LAL PW-16/A Death report Deposed about
the
investigation.
PW-17 INSPECTOR PX-1 Statement of Deposed about
SHYORAM identification of the
(Investigating dead body investigation,
Officer) being the
PX-2 Crime team report Investigating
Officer
PX-3 Photographs of
scene of crime
PX-4 FIR, certificate
(COLLY) u/s 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
4. Arguments were addressed by Mr. C. Mohan Rao, learned counsel
appearing on behalf of the appellant and Ms. Aashaa Tiwari, learned
APP for the State.
5. Learned counsel for the appellant contended that the testimony of
Mohd. Sagir (PW-1), the eyewitness, is not reliable as he had made
considerable improvements while deposing in the Court. He wondered
how the name, parentage and address of the appellant were known to the
said witness as revealed by him in his statement recorded under Section
161 Cr.P.C., since during his cross examination, he had stated that he did
not know the appellant prior to the incident. Learned counsel argued that
there were material contradictions in the statements of the eyewitness
recorded by the police and their statements made in court. It was also
contended that Mohd. Sanwar Alam (PW-4), cousin brother of the
deceased, was a planted witness.
6. On the other hand, Ms. Aashaa Tiwari, learned APP, supported the
impugned judgment. During her arguments, she reiterated the following
circumstances, which were noted by the trial court as under:-
"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."
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 2.5x1.3 cm
on cut opening it penetrated into skin, superficial
fascia subcutaneous fat and then into muscle sheath.
(C) CHEST (Thorax)
1 Diaphragm & ribs and As mentioned above
chest wall
2 Oesophagus : NAD
3 Trachea and Bronchi Congested
4 Pleural Cavities : NAD
5 Lungs
Right pale wt. 450 grams
Left Collapsed shrunken in
consistency rest as
mentioned
6 Heart and Pericardial Sac as mentioned above
wt. 250 gms.
7 Large Blood vessels NAD
xxx
xxx
xxx
xxx
(H) TIME SINCE DEATH
About twelve hours (12)
(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:
"21. Thus, from a review of the authorities mentioned
above and the clear language of S.32(1) of the Evidence
Act, the following propositions emerge:-
(1) Section 32 is an exception to the rule of hearsay and
makes admissible the statement of a person who dies,
whether the death is a homicide or a suicide, provided the
statement relates to the cause of death, or exhibits
circumstances leading to death. In this respect, as
indicated above, the Indian Evidence Act, in view of the
peculiar conditions of our society and the diverse nature
and character of our people, has thought it necessary to
widen the sphere of S.32 to avoid injustice.
(2) The test of proximity cannot be too literally construed
and practically reduced to a cut-and-dried formula of
universal application so as to be confined in a straitjacket.
Distance of time would depend or vary with the
circumstances of each case. For instance, where death is a
logical culmination of a continuous drama long in process
and is, as it were, a finale of the story, the statement
regarding each step directly connected with the end of the
drama would be admissible because the entire statement
would have to be read as an organic whole and not torn
from the context. Sometimes statements relevant to or
furnishing an immediate motive may also be admissible as
being a part of the transaction of death. It is manifest that
all these statements come to light only after the death of the
deceased who speaks from death. For instance, where the
death takes place within a very short time of the marriage
or the distance of time is not spread over more than 3-4
months the statement may be admissible under S.32.
(3) The second part of clause (1) of S.32 is yet another
exception to the rule that in criminal law the evidence of a
person who was not being subjected to or given an
opportunity of being cross-examined by the accused, would
be valueless because the place of cross- examination is
taken by the solemnity and sanctity of oath for the simple
reason that a person on the verge of death is not likely to
make a false statement unless there is strong evidence to
show that the statement was secured either by prompting or
tutoring.
(4) It may be important to note that S.32 does not speak of
homicide alone but includes suicide also, hence all the
circumstances which may be relevant to prove a case of
homicide would be equally relevant to prove a case of
suicide.
(5) Where the main evidence consists of statements and
letters written by the deceased which are directly
connected with or related to her death and which reveal a
tell-tale story, the said statement would clearly fall within
the four corners of S.32 and, therefore, admissible. The
distance of time alone in such cases would not make the
statement irrelevant." [emphasis added]
[Also refer: Mukhtyar Jabbar Tadvi vs. State of Maharashtra
reported as (2018) SCC Online SC 2279.]
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
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