State V Akbar Ganja

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

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
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

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

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

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


13/E(OS 95/21/17 in register
R) no. 21

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.

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.

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

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

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

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

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

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

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

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.

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.

JUDICIAL RESOLUTION
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:

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

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

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

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

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

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

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.

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

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.
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.

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-

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

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.

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

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.

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

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

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

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.
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
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
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
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),
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
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
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
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

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).

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

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.
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

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

State V Akbar Ganja

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

State V Akbar Ganja

Uploaded by

Copyright:

Available Formats

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

Date of Institution : 02.01.2018

For the accused : Sh. Dhruv Bhagat,

Sessions Case No. 11/2018 Page 2/51

hospital, ASI Hareti Lal seized the blood soaked jeans of

sufficient to cause death in the ordinary course of nature.

Sessions Case No. 11/2018 Page 4/51

with the provisions contained in Section 207-209 Cr.P.C,

Sessions Case No. 11/2018 Page 5/51

PW-3 HC JAG RAM He shifted Niyaz

PW-4 MOHD. SANWAR Deposed about the

PW-5 PRABHANSHU He made call at 100

PW-8 HC OMBIR SINGH PW-8/A Arrest memo of Deposed about

PW-8/B Personal search arresting accused

Sessions Case No. 11/2018 Page 6/51

PW-8/E Seizure memo of of place of occurrence.

PW- Entry no. 3251/17

PW- Entry vide RC no.

Sessions Case No. 11/2018 Page 7/51

PW- Entry vide RC no.

PW- Entry vide RC no.

Sessions Case No. 11/2018 Page 8/51

PW-16 SI HIRA LAL PW-16/A Death report Deposed about the

PW-17 INSPECTOR PX-1 Statement of Deposed about the

(Investigating dead body Investigating Officer.

Officer) PX-2 Crime team report

PX- FIR, certificate u/s

PX-5 DD entry no. 42A

PX-6 DD entry no. 6A dt.

PX-7 FSL report

7. Statement of the Accused:

Sessions Case No. 11/2018 Page 9/51

Sessions Case No. 11/2018 Page 10/51

submitted that there are major discrepancies in the

Sessions Case No. 11/2018 Page 11/51

statement stated that the mother of the accused was not

Sessions Case No. 11/2018 Page 12/51

recovered and when PW-17 was questioned in this

Sessions Case No. 11/2018 Page 13/51

and he could have identified the weapon of offence, if

Sessions Case No. 11/2018 Page 14/51

deceased and the incident as per prosecution took

Sessions Case No. 11/2018 Page 15/51

the deceased and to whom the deceased had informed

Sessions Case No. 11/2018 Page 16/51

accused choose to throw away the cloths and hide the

Sessions Case No. 11/2018 Page 17/51

h) As regards the DNA report Ex. PW 15/A, it is

Sessions Case No. 11/2018 Page 18/51

Sessions Case No. 11/2018 Page 19/51

299. Culpable homicide-Whoever causes death by doing

Sessions Case No. 11/2018 Page 20/51

Sessions Case No. 11/2018 Page 21/51

Acharya Bikshu Hospital, as SI Hira Lal was assigned with

Sessions Case No. 11/2018 Page 22/51

persons i.e. 'R' and accused Akbar @ Ganja went away

Sessions Case No. 11/2018 Page 23/51

knife which was used to commit the alleged incident was

Sessions Case No. 11/2018 Page 24/51

cross examination stated “I know accused Akbar @ Ganja

Sessions Case No. 11/2018 Page 25/51