Delhi District Court
State vs Nishan@Nisal on 16 July, 2024
IN THE COURT OF MS. MADHU JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Sessions Case No. 30/2024
CNR No. DLST01-000397-2024
State vs. Nishan @ Nisal
S/o Sh. Sunil
R/o H.No. 288, Dhaniram Colony,
Maidan Garhi, New Delhi
FIR No. 209/2023
Police Station : Maidan Garhi
U/s : 308 IPC
Date of institution : 26.07.2023
Date of Committal : 16.01.2024
Date of arguments : 27.05.2024
Date of Judgment : 16.07.2024
JUDGMENT
1. On a rukka initiated by ASI Radhey Shyam, FIR bearing no. 209/2023, Police Station Maidan Garhi, U/s 308 IPC was registered, which after requisite investigation culminated into the charge sheet U/s 308 IPC and the same was filed against the accused Nishan @ Nisal, in the Court of learned Metropolitan Magistrate, South District, Saket, New Delhi. After compliance of provisions of Section 207 Cr.PC, learned Metropolitan Magistrate committed the case to the Court of Sessions under provisions of Section 209 Cr.PC for trial being a sessions trial case.
SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 1 of 31
2. Brief facts as per charge sheet are that on receipt of DD Nos. 52A, 53A, 54A, 55A & 56A on 15.08.2014 on 26.05.2023 regarding information that at Shiv Mandir Prajapati Colony Maidan Grahi "caller ne bataya ki address par ek admi dusre admi ko bhot buri tarah maar raha almost maar diya hai usse". The said information was conveyed to ASI Radhey Shyam who was on emergency duty, who on receipt of said information along with HC Ashok reached at the spot of incident i.e. 691, Prajapati Mohalla, Maidan Garhi, New Delhi. At the spot, they came to know that injured has already been shifted to AIIMS Trauma Center. Crime Team was called by ASI Radhey Shyam and the officials of Crime Team inspected the spot. Crime team photographed the spot and lifted exhibits which were seized. No eye witness was found at the spot. IO went to AIIMS Trauma Center and obtained MLC of injured Vipin wherein nature of injuries were mentioned as under:-
(A) Wound 1- Laceration Occipital Area (i) 4 x 0.5 x 0.5 cm, (ii) 3 x 0.5 x 0.5 cm, (iii) 2.5 x 0.5 x 0.5 cm; (B) Wound 2- Laceration Lower Lip Intra Oral 3 x 0.2 x 0.2 cm;
(C) Wound 3- Abrasion Left Forehead 2 x 1 cm, Left Frontal Scalp 0.5 x 0.5 cm;
(D) Wound 4- Swelling at right side of face;
3. Patient was declared unfit for statement. However, on the basis of the MLC of injured, offence U/s 308 IPC was found to have been committed. ASI Radhey Shayam SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 2 of 31 prepared rukka and got registered present FIR through HC Ashok. IO ASI Rahdey Shyam checked footage of CCTV Camera wherein he could see one person beating injured. IO received exhibits from Crime Team, sealed and seized the same. IO prepared site plan (Ex. PW7/A). IO interrogated the accused, arrested him vide memo Ex. PW7/C, conducted his personal search vide memo Ex. PW/D, recorded his disclosure statement (Ex. PW7/E). Accused got recovered his Blue jeans and T-Shirt with blood stains, which were sealed and seized by the IO (Ex. PW7/F). IO recorded the statement of witnesses U/s 161 Cr.P.C. During investigation, IO recorded statement of injured Vipin wherein he stated that on 26.05.2023 it was his birthday and in the afternoon time, he went to Madangir to purchase a 'gamcha'. Thereafter he went to meet his relative accused Nishan @ Nisal in his house who lives in Maidan Garhi where they consumed liquor. Accused under the influence of liquor started alleging that complainant is in love affair with his sister and he had come to meet his sister on that day. Complainant denied the allegations leveled by the accused and thereafter, accused started fighting with him due to which he came down in the gali. However, accused also came into gali and started fighting with the complainant. Accused pushed the complainant on the ground and started beating him with danda and stones due to which he became unconscious. He regained his consciousness in AIIMS Trauma Center. IO obtained result from AIIMS Trauma Center, as per which the nature of injuries were found to be 'Grevious'. IO SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 3 of 31 obtained the CCTV camera footage of the spot in a Pen Drive U/s 65-B IEA. IO sent the exhibits to FSL for opinion. IO filed charge sheet U/s 308 IPC against accused.
4. During trial of the case, charge u/s 308 IPC against the accused Nishan @ Nisal was framed, to which he pleaded not guilty and claimed trial.
5. Out of the 12 prosecution witnesses, prosecution examined 9 witnesses as detailed hereunder:-
(i) PW1- Vipin, (Complainant/Injured);
(ii) PW2- Vikram Singh, (Owner of house who gave CCTV footage to IO);
(iii) PW3- HC Vijay, (Duty Officer);
(iv) PW4 SI Ajay, (Crime Team Incharge);
(v) PW5 HC Ravinder, (Photographer Crime Team);
(vi) PW6 HC Sudhir Yadav, (Duty Officer of call);
(vii) PW7 HC Ashok Kumar, (Joined Investigation with IO);
(viii) PW8 Dr. Nilesh Kumar, (Examined injured);
(ix) PW9 ASI Radhey Shyam, (Inquiry Officer);
(x) PW10 ASI Bhagat Singh, (IO);
6. PW1 Vipin is the complainant/injured who deposed that he knew accused who is his nephew and identified him in the Court. On 26.05.2023 i.e. the day of his birthday, he was working as a Laundry boy at Niti Bagh. He gave a birthday party and thereafter he went to Madangir to purchase a SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 4 of 31 gamcha in noon time. He met accused in Madrasi Colony, Madangir where both of them consumed liquor. Thereafter, he along with accused came to Khanpur in an Auto and on the insistence of accused, complainant accompanied accused to his house at Maidan Garhi, where they again consumed liquor. After consuming liquor complainant lost his consciousness and when he regained his consciousness, he found himself in the hospital. Later on, he came to know that the sister of the accused got him admitted in the hospital. He does not know who caused injuries to him.
7. PW1 Vipin was cross examined by Ld. CPP for the State as he was not deposing the correct facts. During his cross examination by Ld. CPP, PW1 admitted and deposed that on 26.05.2023, he went to Madangir to purchase a gamcha where accused met him and accused alleged that complainant is having relations with the sister of accused and he had come to meet her. PW1 was confronted with his statement U/s 161 Cr.P.C, wherein there was variation in the statement as he was not honoring the incident in his testimony which he disclosed to the police.
8. During further cross examination of PW1 by Ld. CPP for the State, PW1 was shown CCTV footage of the incident after playing file no. CAM.1. MP4 from a pen drive (Ex.
PW1/P1). After seeing the footage, witness states that accused is beating him by a wooden fattas on his head and PW1 has correctly identified accused and himself in the said footage. In the said footage, blood is seen oozing out SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 5 of 31 from the head of the PW1. PW1 is shown second file from said pen drive with name MP4 and after seeing the said footage, PW1 states that accused is beating him by fist and legs blow and assaulting him with a big wooden type object (fattas) on his head. He has identified himself and accused in the second footage and also confirmed that blood is seen oozing from his head. PW1 further deposed that after seeing the CCTV footage, he has recollected that accused present in the Court gave him beatings by legs and fist blows and also caused him injuries with wooden fattas. He further deposed that accused caused injuries to him as accused doubt that complainant had illicit relations with his sister. Complainant/injured identified the wooden fattas (Ex. PW1/2 & 1/3) having brown stains on it to be the same fattas with which accused caused injuries upon him. He was cross examined by the Ld. LAC for accused.
9. PW2 Vikram Singh is the owner of the H.no. 571/674, Prajapati Mohalla, Near Shiv Mandir, Govt. School, Maidangarhi, New Delhi who deposed that he has installed four CCTV Cameras at the gate of his house, roof and staircase. He further deposed that in compliance of the notice U/s 91 Cr.P.C., he provided CCTV footage of incident dated 26.05.2023 in a pen drive to the police on 03.07.2023, which was seized by police vide memo Ex. PW 2/A. He also furnished certificate U/s 65B IEA (Ex. PW 2/B) regarding correctness and genuineness of the said CCTV Footage. He identified the pen drive to be the same which he gave to police containing incident of 26.05.2023.
SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 6 of 31 The said pen drive was played in the Court and witnesses after seeing the same states that the house in front of which quarrel had taken place and accused is seen beating the complainant/injured. He was cross examined by Ld. LAC for accused.
10. PW3 HC Vijay is the Duty Officer who deposed that on 26.05.2023 while he was working as Duty Officer from 04.00 PM to 12 midnight, he received a rukka at 11.00 PM from HC Ashok. On the basis of said rukka, he lodged FIR No. 209/2023 U/s 308 IPC (Ex. PW3/A) and handed over copy of FIR and original rukka along with certificate U/s 65B- IEA (Ex. PW 3/B) to HC Ashok. His cross examination was recorded as nil by Ld. LAC for accused.
11. PW4 SI Ajay is the Incharge of Crime Team, who deposed that on 26.05.2023 on receipt of intimation about the incident from District Control Room, he along with photographer HC Ravinder and Finger Print Expert ASI Sandeep reached the spot of incident i.e. H.no. 691, Prajapati Mohalla, Maidangarhi, New Delhi where they met ASI Radhey Shyam. He along with staff inspected the spot, photographer took photographs of spot from various angles. No chance print could be found at the spot. He along with staff noticed blood on the ground and found one blood stained wooden plank and one pan and its separated handle outside the room. He lifted exhibits and handed over the same to IO. His detailed report is Ex. PW 4/A. He was cross examined by Ld. defence counsel.
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12. PW5 HC Ravinder is the photographer of the Crime Team who deposed that on receiving intimation from District Control Room, he along with Crime Team Incharge SI Ajay and Finger Print Expert ASI Sandeep reached at the spot i.e. H.no. 691, Prajapati Mohalla, Maidangarhi, New Delhi where they met IO ASI Radhey Shyam and other police staff. He took photographs of the spot from various angles. There were no chance prints at the spot. Exhibits were lifted by the Crime Team Incharge and the same were handed over to the IO. He handed over the 26 photographs clicked by him to the IO in a pen drive. Witness identified the photographs (Ex. PW5/A) (colly) in the Court. He was cross examined by Ld. LAC for the accused.
13. PW6 HC Sudhir Yadav is the Duty Officer who recorded the PCR calls deposed that on 26.05.2023 at about 03.23 pm, he received PCR calls regarding incident with intimation that "caller ne bataya ki above add par ek admi dusre admi ko bhot buri trh maar raha hai almost maar diya h usse" at Shiv Mandir Prajapati colony, Maidangarhi, New Delhi, which he recorded vide DD No. 52A (Ex. PW 6/A), PS Maidan Garhi with the help of Computer Operator. The said DD was marked to ASI Radhey Shyam. Again at 03.23 PM, he received another call informing same incident, with information "Caller ne bataya ki bahut ladai ho rahi hai aur sar phad diya hai" which he recorded vide DD No. 53A (Ex. PW6/B). Again at 3.27 PM, he received another call regarding same incident with SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 8 of 31 information that "Yaha par ek ladka ko unknown ladka ne pathar se mara hai, caller bol raha hai ki y marne wala hai, kaphi blood nikal raha hai", which he recorded vide DD no. 54A (Ex. PW6/C). Again at 03.35 PM, he received another call regarding same incident with information that "caller bol raha hai ki yaha par ek admi ke saath maar-peet kar raha hai jo behosh ho gaya hai" which he recorded vide DD No. 55A (Ex. PW6/D). Lastly at 03.36 PM, he received PCR call regarding same incident with information "caller ne batya ki bahut ladai ho rahi hai aur sar phad diya hai... Second caller ne bataya ki jisme ek ladke ko dusre ladke ne jaan se maar diya hai" , which was recorded vide DD No. 56A (Ex. PW 6/E).
14. PW7 HC Ashok Kumar is the police official who accompanied IO during investigation. He deposed that on 26.05.2023, he was on duty with IO ASI Radhey Shyam and on receipt of multiple DD entries by ASI Radhey Shyam, he along with him reached the spot near 691, Prajapati Mohalla, Maidangarhi, New Delhi where they came to know that injured has already been shifted to AIIMS Trauma Center. He joined investigation with IO ASI Radhey Shyam. IO called Crime Team at the spot and the officials of said Crime team inspected the spot, took photographs, lifted exhibits and weapon of offence and handed over the same to IO. Thereafter, he along with IO went to AIIIMS Trauma Centre where IO collected MLC of injured Vipin and Doctor declared him unfit for statement. No eye witness met them at the hospital. IO SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 9 of 31 endorsed DD no. 52A (Ex. PW6/A) and prepared rukka and handed over the same to him and got the FIR registered through him. IO prepared site plan of the spot (Ex. PW7/B). In the intervening night of 26-27.05.2023, accused was interrogated in the police station. IO arrested accused vide memo Ex. PW 7/C, conducted his personal search vide memo Ex. PW 7/D, recorded his disclosure statement vide memo Ex. PW 7/E. IO seized blood stained clothes i.e. Jeans and T-Shirt of accused worn by him at the time of incident vide memo Ex. PW 7/F. He identified the accused in the Court. He deposed that he can identify the case property, however, identification of the case property was not disputed by the Ld. defence counsel. He was cross examined by Ld. defence counsel.
15. PW8 Dr. Nilesh Kumar is the Medical Officer who examined the injured Vipin and he deposed that on 26.05.2023 injured Vipin was brought to hospital with alleged history of assault and he prepared detailed MLC No. 500375879 dated 26.05.2023 (Ex. PW 8/A). The injured was having several lacerated wounds on his occipital area, laceration over lower lip (intra oral), abrasion over left forehead 2 x 1 cm, abrasion over left frontal scalp 0.5 x 0.5 cm and swelling on right side of face. The patient was advised CT Scan of head and cervical spine, E fast examination, X-rays of chest and pelvis and call was given to neuro surgery, trauma surgery and minor OT. His cross examination by the Ld. defence counsel was recorded as Nil.
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16. PW9 IO/ASI Radhey Shyam is the Investigating Officer of the case who deposed that on 26.05.2023, he received DD Nos. 52A, 53A, 55A & 56A regarding quarrel at Dhaniram Colony, Prajapati Mohalla, Maidan Garhi, Near Shiv Mandir, New Delhi. He along with HC Ashok Kumar went to the spot and came to know that injured has already been shifted to AIIMS Trauma Center by PCR Van. He found blood, danda, tava and wooden fattas at the spot and he informed the crime team about the incident. Crime Team reached the spot and took photographs of the spot. He identified 26 photographs (Ex. PW 5/A) to be that of the spot of incident. Crime team lifted exhibits from the spot. No eye witness could be found despite efforts. He received DD entry regarding admission of injured in AIIMS Trauma Center. He alongwith HC Ashok Kumar went to the hospital and collected MLC of injured Vipin. He tried to record statement of injured but complainant was declared unfit for statement. He made endorsement (Ex. PW 9/PX) on DD No. 52A (Ex. PW 6/A) and got the FIR registered U/s 308 IPC through HC Ashok. Crime Team prepared report (Ex. PW 4/A) and handed over the same to him along with exhibits lifted by them. He seized the exhibits vide seizure memo Ex. PW 7/A. He came back to the spot and checked CCTV footage and found injured to be beaten by accused. He arrested the accused vide memo Ex. PW 7/C, conducted personal search of accused vide memo Ex. PW 7/D, recorded his disclosure statement (Ex. PW 7/E), seized wearing clothes of accused vide SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 11 of 31 memo Ex. PW 7/F and prepared site plan Ex. PW 7/A. He collected MLC result and recorded statement of injured. He obtained CCTV footage of camera from the Landlord of house in a pen drive (Ex. PW1/P1) along with certificate U/s 65 IEA (Ex. PW 2/B). During investigation he obtained opinion on MLC (Ex. A1), discharge summary of injured (Ex. PW9/A), X-Ray reports which are Ex. PW 8/A. He prepared charge sheet and filed the same before the Court. He identified weapon of offence i.e. wooden fattas (Ex. PW 1/P2 & Ex. PW1/3), iron Tava (gridle pan without handle) (Ex. PW 9/P1), handle of Tava (Ex. PW9/P2), clothes of accused i.e. Jeans and T-shirt (Ex. PW 9/P3). He proved pen drive Ex. PW1/P1 containing the CCTV footage of incident. He identified accused in the Court. He was cross examined by the Ld. defence counsel.
17. Separate statement of accused U/s 294 Cr.P.C. dated 09.04.2024 was recorded as per which he did not dispute the deposition of the case property in malkhana and the record of MHCM is Ex. A2.
18. The evidence was thus concluded and same was put to the accused with a view to have his version of the events and explanation with regard to the evidence coming on record. The statement of accused under Section 313 Cr.P.C. of accused Nishan @ Nisal was recorded on 26.04.2024 wherein he denied the allegations leveled against him and claimed that he is innocent and have been falsely implicated. He admitted that he was arrested by police SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 12 of 31 from Temple, Maidan Garhi and was taken to the spot of incident. He did not make any disclosure statement. He admitted that his blood stained clothes were seized by the IO/PW9. He stated that complainant slapped and misbehaved with his sister and thereafter, a quarrel started. He was beaten by complainant and he has been falsely implicated. He chose to lead defence evidence, however, did not examine any witness in his defence.
19. I have considered the arguments addressed by Ld. counsel for the accused as well as Ld. CPP for the State and has gone through the entire record carefully. The Section i.e. 308 IPC for which charge has been framed against accused is reproduced here under:-
308 IPC - Attempt to commit culpable homicide-Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and if hurt is caused to any persons by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
20. Learned Chief Public Prosecutor for the State has argued that PW1/complainant/injured is the star witness who has fully supported the case of the prosecution. It is further argued that police witnesses have corroborated the version of PW1. The public and police witnesses have remained intact during their cross examination on the material SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 13 of 31 aspects. It is further argued that the case of the prosecution as well as version of the complainant further stands corroborated through the electronic evidence i.e. CCTV footage of the Camera which captured the entire incident.
Thus, the prosecution has been able to prove its case beyond reasonable doubt and it is a fit case for conviction.
21. On the other hand, Ld. counsel for the accused has argued that there are various discrepancies in the statement of the PW1 which have surfaced in his chief and during his cross examination, which goes to the root of the case. It is argued that during initial examination in chief, complainant did not disclose anything about the incident and stated that he lost his consciousness after consuming liquor and when he regained his consciousness, he found himself in the hospital. He further deposed that he does not know who caused injuries to him. It is further argued that it is only when Ld. CPP cross examined him and showed CCTV footage then only complainant supported the case of the prosecution. It is argued that two different versions of the complainant recorded in his examination in chief itself raises doubt on his credibility and reliability. Hence, complainant is not a reliable witness and his testimony does not hold any weight-age. It is argued that complainant and accused are known to each other and there is an affair between the complainant and sister of accused and complainant has falsely implicated the accused in the present case in order to achieve his ulterior motives. It is argued that accused deserves benefit of doubt as SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 14 of 31 prosecution has failed to prove its case beyond reasonable doubt. It is prayed that accused is liable to be discharged.
22. In the instant case, accused has stressed on the defence that complainant initially turned hostile and later supported the case of prosecution. In this regard, some relevant facts which have surfaced on record are that it is an admitted fact that complainant and accused is known to each other and are relatives. Complainant in his testimony deposed that accused is his nephew. Complainant further deposed that he consumed liquor with accused in Madrasi Colony as well as at the house of accused in Maidan Garhi. Complainant further deposed that accused had doubt upon him that complainant is having illicit relation with his sister. The collective study of these depositions of complainant reveal that both complainant and accused had healthy and cordial relations with each other and also had visiting terms to their houses at a point of time. From the above, it can be safely inferred that complainant during his initial deposition as PW1 attempted to facilitate accused by trying to turn hostile by showing his ignorance qua the incident. However, later when Ld. CPP cross examined the complainant and confronted him by showing him the CCTV footage of the incident then only complainant started supporting the case of the prosecution, which he squarely proved. Therefore, the argument on behalf of accused that complainant initially turned hostile in respect of the incident and later supported the case of prosecution, is well reasoned as complainant appears to have been SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 15 of 31 under the influence of accused owing to his acquaintance with accused and his friendly relations with sister of accused. However, when he discovered direct electronic evidence clearly proving the incident, he supported the case of the prosecution. Since, the entire incident was clearly captured in CCTV footage wherein accused and complainant were identified, therefore, complainant did not have courage to deny the direct evidence and accordingly he supported the case of the prosecution. PW1/complainant has further cleared this ambiguity by deposing as under:-
"It is correct that after seeing the footage, I have recollected now that accused, present in the court today, gave me beatings by legs and fist blows and also caused injuries to me by wooden fattas and it is also correct that accused who has caused injuries to me as he doubted upon me that I have a illicit relations with his sister."
Hence, in all probabilities complainant cannot be termed to be a hostile witness as during his testimony only he has supported the case of the prosecution and has given bonafide explanation for his ignorance about the incident in his initial version.
23. In the instant case, complainant has seen two CCTV footages i.e. file no. CAM.1.MP4 and MP4 played in the court in Pen Drive (Ex. PW1/P1) and after seeing the same he categorically deposed that in the footage, accused is SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 16 of 31 beating him by a wooden fatta on his head; he correctly identified himself and accused in the footage; accused is beating him by fist and legs blow and assaulting him with a big wooden type object (fattas) on his head in the footage; blood was also oozing out from the head of the witness in the footage. There is a categorical admission of complainant that he has been beaten by accused with fist and leg blows and with a fattas hit on his head in consistency with the CCTV footage. Complainant has further given motive behind the attack upon him by deposing that accused doubted upon him to be having illicit relations with his sister due to which accused gave him beatings. Complainant has identified wooden fattas (Ex. PW1/P2) and (Ex. PW1/P3) having brown stains on it to be the same which were used by the accused in causing injuries upon him. In addition, to substantiate his version, complainant has categorically deposed as under:-
"It is correct that whatever I have seen in the footage played in the Court is the correct version of incident occurred with me by the accused and he gave me beatings."
24. In the cross examination of PW1, complainant denied the suggestions of having relations with the sister of accused. He further denied the suggestion that on his instigation, accused hit him. He reiterated the fact that accused is his nephew and both of them consumed liquor in Madrasi Colony and at the house of accused.
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25. The credibility and reliability of the CCTV footage was proved by PW2 Vikram Singh who is also the landlord of house who provided CCTV footage of the camera installed in his house. PW2 identified the scan disk red and black color pen drive to be the same which he supplied to the IO on 03.07.2023 which was containing CCTV footage of incident dated 26.05.2023. He further proved the seizure memo of the pen drive (Ex. PW 2/A) and certificate U/s 65-B IEA in support thereof. The CCTV footage was played before PW2 who after seeing the same deposed that "... it is his house in front of which quarrel had taken place wherein accused is beating my tenant/complainant Vipin".
26. In the cross examination of PW2, he deposed that he had rented out house of his sister to complainant. He had given original footage of incident in a pen drive to police which was not tampered.
27. The cross examination of PW3 HC Vijay being Duty officer who proved registration of present FIR (Ex. PW3/A) was recorded as nil. Similarly, the cross examination of PW 6 HC Sudhir Yadav, Duty Officer who recorded PCR call vide DD No. 52A, 53A, 54A, 55A & 56A all dated 26.05.2023 (Ex. PW 6/A to Ex. PW6/E) was also recorded as nil. Even PW 8 Dr. Nilesh Kumar who medically examined the injured vide MLC Ex. PW 8/A was not cross examined by ld. defence counsel. This leads to a conclusion that accused did not dispute the medical SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 18 of 31 records and opinion given by the examining Doctor.
28. Vide separate statement of accused dated 09.04.2024 U/s 294 Cr.P.C, he has admitted the subsequent opinion given by Dr. Govind Balmuchu (Ex. A1) and record of MHCM regarding depositing of case property in malkhana Ex. A2. Accordingly, the relevant witnesses qua these documents were dropped vide order dated 09.04.2024 and these documents stands admitted.
29. The medical evidence i.e. MLC (Ex. 8/A) shows the injuries as:-
(A) Wound 1- Laceration Occipital Area (i) 4 x 0.5 x 0.5 cm, (ii) 3 x 0.5 x 0.5 cm, (iii) 2.5 x 0.5 x 0.5 cm; (B) Wound 2- Laceration Lower Lip Intra Oral 3 x 0.2 x 0.2 cm;
(C) Wound 3- Abrasion Left Forehead 2 x 1 cm, Left Frontal Scalp 0.5 x 0.5 cm;
(D) Wound 4- Swelling at right side of face;
The subsequent medical opinion on the MLC finds mention " Considering all the findings as mentioned in MLC Report, X-Ray and Discharge summary, I am of the opinion that injuries sustained by Vipin are Grievous in nature and could have been caused by blunt force/weapon.". In the present case, the injuries have been caused by a wooden fattas on the head of the complainant, in addition to fist and leg blows as per the case of the prosecution, which have been duly corroborated by the SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 19 of 31 complainant in his testimony in consistency with the CCTV footage. The wooden fattas(s) physically produced in the Court have been identified by the complainant in the Court, in addition to identification of the same in the CCTV footage played in the Court wherein accused and complainant have been duly identified and accused is beating complainant with wooden fattas.
30. Perusal of CCTV footage played in the Court clearly reveals commission of the incident in the manner narrated by the complainant/PW1. Both accused and the complainant are clearly visible in the video wherein accused is seen dragging the complainant outside the house in a gali and is mercilessly beating the complainant with fist and leg blows and with wooden sticks after picking the broken wooden pieces lying in the gali. Accused can be seen hitting wooden pieces on the head of the complainant repeatedly number of times forcefully even when complainant is unconscious.
31. The information received vide various DD entries through PCR calls states as under:
(a) "caller ne bataya ki above add par ek admi dusre admi ko bhot buri trh maar raha hai almost maar diya h usse" ;
(b) "Caller ne bataya ki bahut ladai ho rahi hai aur sar phad diya hai";
(c) "Yaha par ek ladka ko unknown ladka ne pathar se mara hai, caller bol raha hai ki y marne wala hai, kaphi SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 20 of 31 blood nikal raha hai";
(d) "caller bol raha hai ki yaha par ek admi ke saath maar-peet kar raha hai jo behosh ho gaya hai" ;
(e)"caller ne batya ki bahut ladai ho rahi hai aur sar phad diya hai... Second caller ne bataya ki jisme ek ladke ko dusre ladke ne jaan se maar diya hai";
32. The above information given by different callers who made call to PCR are in consistency to the CCTV footage played in the Court. The merciless and brutal manner in which accused can be seen beating the complainant in CCTV footage shows that such forceful impact of wooden fattas blow could certainly had caused the death of the complainant. Moreover, hitting of sharp edged wooden fattas repeatedly on the head of the complainant with force in addition to kick blows on his head and face shows that accused had targeted the head of the complainant, which is the most sensitive part of the body. Even a small injury on the head portion can result in grievous injuries leading to death.
33. Accused has not disputed his presence at the spot of incident on the date of incident either in the cross examination of PW1 nor in the statement U/s 313 Cr.P.C. In his statement U/S 313 Cr.P.C., accused has stated that the quarrel started when complainant slapped his sister and misbehaved with her and even complainant beat the accused. However, neither any complaint has been by sister of the accused against the complainant for alleged SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 21 of 31 misbehavior or slapping nor accused has lodged any complaint against the complainant for alleged beatings. Hence, the defence taken by the accused in his statement U/s 313 Cr.P.C. does not inspire confidence being unsubstantiated and unfounded. The motive behind the incident as per the version of the complainant is that accused apprehended that complainant is in illicit relationship with his sister whereas as per accused, complainant slapped and misbehaved with his sister. The contentions raised to determine the cause and motive behind the crime appears to be similar and probable. Accused despite opting to lead DE, did not examine any witness or even his sister who could have been a vital witness to prove or disprove the contention of the accused. Hence, the defence raised by the accused appears to be baseless and motivated.
34. PW1/complainant who is the star witness of the prosecution as well as complainant/injured has disclosed the correct date and place of incident. The series and chronology of DD entries, admission of accused in hospital and registration of FIR shows that all the proceedings have been conducted on the same day of incident i.e. 26.05.2023 and the time frame is in proximity. The Police witnesses have corroborated the incident in the manner, the events took place and their testimony is consistent to each other and also supports the case of prosecution. The CCTV footage of the incident is a crucial piece of evidence in the present case which has neither been denied nor disputed by SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 22 of 31 the accused and the same has been proved by the complainant/PW1 as well as landlord/PW2 by categorically deposing that accused is beating the complainant in the incident. The accused and the complainant are clearly seen in the CCTV footage wherein accused has been hitting wooden fatta on the head of the complainant.
35. On appreciating the evidence in totality which has surfaced on record, it can be safely inferred that the public witness PW1/injured has not only supported the case of the prosecution but has also identified the weapon of offence i.e. blood stained wooden fattas recovered from the spot by the Crime Team. All the witnesses remained intact in their cross examination. It may be mentioned that the medical evidence in form of subsequent opinion (Ex. A1) clearly shows the details of injury suffered by complainant as and the same to be 'Grievous in nature' and could have been caused by 'blunt force/weapon'. PW1/complainant has squarely approved the CCTV footage by categorically stating that 'whatever I have seen in the footage played in the court is the correct version of incident occurred with me by the accused and he gave me beatings' . When the CCTV footage played in the Court during evidence of PW1 and PW2 has been duly admitted and proved by them to be correct version of the incident wherein both accused and complainant are clearly identified and accused is seen given beatings to complainant in merciless and brutal manner, it leaves no doubt about the credibility and SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 23 of 31 reliability of the testimonies of PW1 & PW2 and that of said CCTV footage. Accused has also not disputed the CCTV footage alleging the same to be tampered or morphed.
36. The argument of the Ld. defence counsel that there are discrepancies in the cross examination of the public witnesses does not stand substantiated firstly in the light of the fact that both the public witnesses PW1 & PW 2 remained intact during their cross examination. Discrepancies, if any, are that of minor relevance and are not of such a magnitude or of nature, which will discredit testimonies of these witnesses. It is further relevant to appreciate that accused has not disputed or denied his presence at the spot of incident on the day of incident. The testimonies of the police officials are consistent to each other and that too with public witnesses.
37. Perusal of testimonies of aforesaid public and police witnesses consistently corroborates the case of the prosecution. The date and place of incident is not disputed by the accused. The enmity and rivalry between the complainant and accused arising out of relationship of complainant with sister of accused has been duly admitted by accused through suggestions and statement of accused U/s 313 Cr.P.C and testimony of PW1. Though almost all the public and police witnesses have been cross examined by the Ld. defence counsel for the accused, however, nothing material could come out which could demolish SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 24 of 31 credibility and reliability of their testimony. The public witnesses as well as police witnesses have duly identified the accused and case property in the court and have explained the series of events related to the incident. PW1 and PW2 proved the incident in the manner in which it took place, defining role of accused, through CCTV footage, which version of the witnesses remained intact even during their cross examinations.
38. In the present case, the ill intention and ulterior motive of accused is evident from the fact that accused repeatedly hit a dangerous object like wooden fatti on the sensitive part of body i.e. head of injured, which leaves no doubt that the assault was made with intention to kill the injured. All the public witnesses in their cross examination remained intact and rather reiterated facts narrated by them in their examination in chief. The testimony of all public witnesses during their cross examination is consistent and unshattered with regard date, and place of incident; presence of complainant, manner in which incident took place; role of accused in the incident; and hitting of wooden fatti on the head of injured by accused.
39. The law on appreciation of evidence, as deposed by Prosecution witnesses, has been well settled by catena of judgments. In the case of Gulam Sarbar vs. State of Bihar (2014) 3 SCC 401, it has been held by Hon'ble Supreme Court that:
SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 25 of 31 "conviction can be based on the testimony of a single eye witness which has passed the test of reliability and consistency with the information supplied in the FIR and material collected during the course of investigation. It is not the number of witnesses examined but the quality of evidence that is important whereupon the conviction can be based. In other words, the evidence must be weighed and not counted. The testimony of witness should pass the litmus test of cross- examination and stand the touch stone having element of truth and should be cogent, credible and trustworthy or otherwise".
40. In Santosh Prasad @ Santosh Kumar v State of Bihar, (2020) 3 SCC 443, it was observed as under:
"5.4.2. In Rai Sandeep [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750], this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under:
22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness.
The witness should be in a position to withstand the cross-examination of any length and SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 26 of 31 howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness"
whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
41. Reliance is placed upon judgment of Hon'ble Delhi High Court in Chuni Lal vs. State of Delhi, Crl. A. No. 262/2003, decided on 08.08.2013, wherein it was held as under:-
"11. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, inasmuch as, he sustain injuries in the incident. As such, there is an inbuilt assurance SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 27 of 31 regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other persons. In Abdul Sayeed v. State of Madhya Pradesh [(2010) 10 SCC 259], the Supreme Court held as under:
"28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness." [Vide Ramlagan Singh v. State of Bihar, Malkhan Singh v. State of U.P., Machhi Singh v. State of Punjab, Appabhai v. State of Gujarat, Bonkya v. State of Maharashtra, Bhag Singh, Mohar v. State of U.P. (SCC p. 606b-c), Dinesh Kumar v. State of Rajasthan, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.]
30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 28 of 31
42. In Lallu Manjhi vs State of Jharkhand (2003) 2 SCC 401, it was held as under:
"10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. (See: Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000].)"
43. It can be safely inferred that the assault made by the accused was dangerous and was sufficient enough to cause death of the complainant and the impact of the wooden fatti blow was so high that it made complainant suffer multiple grievous injuries. The attack was with the ill motive as it was made on the head of the complainant owing to alleged relationship between complainant and sister of accused. PW1 and PW2 are public witnesses and are the star and the sterling witnesses of the prosecution. Even if, we believe the version of accused to be correct that complainant was having some relations with the sister of accused then also accused does not have any authority or right to mercilessly and brutally beat the complainant with SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 29 of 31 wooden fattass and take law in his own hands. Non-cross examination of witnesses and recording it as 'Nil, Opportunity given' qua PW3 (Duty Officer who recorded FIR), PW6 (Duty Officer who recorded PCR calls of DD entries) and PW8 (Doctor who prepared MLC) shows that accused did not dispute the registration and contents of DD entries and MLC of complainant.
44. All the public witnesses and police witnesses have passed the test of reliability and consistency with the case of the prosecution and can be called as a "sterling witness". No doubt, there are small and very insignificant discrepancies in the testimony of the public witnesses, but these discrepancies are not of such a magnitude or of nature, which will discredit the testimonies of the other witnesses. All the relevant prosecution witnesses including the police witnesses have consistently proved the case of the prosecution and have duly identified the accused as well as wooden fatti in the Court. There is no reason to disbelieve the testimony of the public witness PW1 and PW2 and other police witnesses as all of them have elaborately narrated the incident in the manner in which it took place, defining the motive behind the same. Accused has miserably failed to defeat the case of the prosecution and prove any plausible defence. The counsel for the accused during the cross- examination of the police witnesses did not give any suggestion or made any arguments that accused had some enmity with the police officials due to SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 30 of 31 which they in connivance with the public witnesses have falsely implicated the accused. Nothing material has come out from the cross-examination of these public and well as police witnesses.
CONCLUSION :
In view of above facts and circumstances, prosecution has been able to prove its case against accused beyond reasonable and accordingly, accused Nishan @ Nisal is convicted for committing the offences punishable under Section 308 IPC.Digitally signed by MADHU
MADHU JAIN
Announced in the open Court
today i.e. 16.07.2024
JAIN Date:
2024.07.20
16:07:37 +0530
(Madhu Jain)
Principal District & Sessions Judge
South District, Saket Courts, New Delhi uploaded on 20.07.2024 SC No. 30/2024, FIR No. 209/2023 State Vs. Nishan @ Nisal, PS Maidan Garhi Page No. 31 of 31