Delhi District Court
State vs Vipin @ Lombri Etc on 31 January, 2026
State V. Vipin @ Lombri & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CNR No.DLWT01-000713-2015
Sessions Case No. 56364/2016
FIR No. 444/2015
PS: Mundka
U/s 308/34 IPC
State Vs. Vipin @ Lombri & Anr.
a) Date of commission of offence : 27/08/2015
b) Name of the complainant : Sh. Mehar Singh
S/o Sh. Ishwar Singh
c) Name of accused and address :1. Vipin @ Lombri
S/o Late Sh. Ramesh
R/o H.No. 210,
V.P.O. Hiran Kudna,
Near Balaji Mandir,
Delhi
2. Nitin @ Naveen
S/o Late Sh. Ramesh
(Accused Nitin @ Naveen
is Proclaimed Offender in the
present case)
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.01.31
17:07:46
+0530
FIR No. 444/2015 PS Mundka Page No.1/48
State V. Vipin @ Lombri & Anr.
d) Offence complained of : u/s. 308/34 IPC
e) Plea of accused : Pleaded not guilty
f) Final order : CONVICTED
Date of institution of the case : 02/11/2015
Date of committal : 23/11/2015
Date on which judgment was
reserved : 28/01/2026
Date of judgment : 31/01/2026
JUDGMENT
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. Briefly stated the case of the prosecution is that on 27/08/2015 at about 10:30 PM at water plant near Hanuman Mandir, Hiran Kudna Village, Delhi within the jurisdiction of Police Station Mundka, both accused Vipin @ Lombri and Nitin @ Naveen in furtherance of their common intention had caused injury on the head of the complainant Mehar Singh with iron rod and legs blows with such intention or knowledge and under such circumstances that, if they both by that act caused the death of the complainant, both accused would have been guilty of culpable homicide not amounting to murder and both accused thereby committed the offence punishable u/s 308/34 IPC.
Digitally signed by VIJAY SHANKARVIJAY Date: SHANKAR 2026.01.31 17:07:56 +0530 FIR No. 444/2015 PS Mundka Page No.2/48 State V. Vipin @ Lombri & Anr.
REGISTRATION OF FIR, INVESTIGATION AND CHARGE-SHEET
2. In the present case, on the complaint of the complainant Sh. Mehar Singh, FIR bearing No. 444/2015 police station Mundka u/s. 308/34 IPC was got registered by the police of police station Mundka. After registration of the FIR, the matter was investigated by the police and on completion of the investigation, the present charge-sheet was submitted in the Court of Ld. Metropolitan Magistrate-08, West District, Tis Hazari Courts, Delhi, on 02/11/2015 for trial of both accused Vipin @ Lombri and Nitin @ Naveen.
COGNIZANCE
3. Cognizance of the offence was taken by the Ld. Metropolitan Magistrate-08, West District, Tis Hazari Courts, Delhi vide order dated 02/11/2015.
SUPPLY OF COPIES AND COMMITTAL
4. Copies of the charge-sheet were supplied to both accused Vipin @ Lombri and Nitin @ Naveen in compliance of section 207 Cr.P.C. Thereafter, vide order dated 18/11/2015 passed by the Ld. Metropolitan Magistrate-08, West District, Tis Hazari Courts, Delhi, the present case was committed to the Court of Sessions.
Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2026.01.31
17:08:02
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State V. Vipin @ Lombri & Anr.
CHARGE
5. Finding a prima-facie case against both accused Vipin @ Lombri and Nitin @ Naveen, charge for the offence u/s. 308/34 IPC was framed against both accused Vipin @ Lombri and Nitin @ Naveen, to which they pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
6. Prosecution was then called upon to substantiate its case by examining its witnesses. The prosecution in support of its case had examined 12 witnesses. The prosecution had examined the following witnesses:-
(1) PW-1 Sh. Mehar Singh
(2) PW-2 Sh. Jagdish
(3) PW-3 Sh. Satish
(4) PW-4 ASI Krishan
(5) PW-5 HC Rakesh
(6) PW-6 ASI Ashok
(7) PW-7 ASI Nirmal
(8) PW-8 Ct. Jaidev
(9) PW-9 Dr. Rohit Kumar, Casualty Medical Officer, Sanjay Gandhi
Memorial Hospital, Mangolpuri, New Delhi (10) PW-10 Dr. Sandeep, Senior Resident, Sanjay Gandhi Memorial Hospital, Mangolpuri, New Delhi Digitally signed by VIJAY SHANKAR VIJAY Date:
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(11) PW-11 HC Sumit
(12) PW-12 SI Deepak Singh
DOCUMENTARY EVIDENCE RELIED UPON BY THE PROSECUTION
7. (1) Complaint/statement of the complainant Ex.PW-1/A (2) FIR Ex.PW-4/A (3) Endorsement on rukka Ex.PW-4/B (4) Certificate u/s 65-B Indian Evidence Act Ex.PW-4/C (5) DD No. 32-A dated 27/08/2015 Ex.PW-5/A (6) Entry at serial no. 865 in register no. 19 Ex.PW-7/A (7) Entry at serial no. 900 in register no. 19 Ex.PW-7/B (8) RC no. 204/21/15 Ex.PW-7/C (9) Acknowledgment receipt Ex.PW-7/D (10) Arrest memo of the accused Nitin @ Naveen Ex.PW-8/A (11) Personal search memo of the accused Nitin @ Naveen Ex.PW-8/B (12) Disclosure statement of the accused Nitin @ Naveen Ex.PW-8/C (13) Pointing out memo prepared at the instance of the accused Nitin @ Naveen Ex.PW-8/D (14) MLC of the complainant/ injured Mehar Singh Ex.PW-9/A (15) Arrest memo of the accused Vipin @ Lombri Ex.PW-11/A (16) Personal search memo of the accused Vipin @ Lombri Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Ex.PW-11/B (17) Disclosure statement of the accused Vipin @ Lombri Ex.PW-11/C (18) Seizure memo of weapon of offence i.e. iron rod Ex.PW-11/D (19) Pointing out memo prepared at the instance of the accused Vipin @ Lombri Ex.PW-11/E (20) Seizure memo of blood sample of the complainant/injured Mehar Singh and sample seal Ex.PW-12/A It is pertinent to mention here that during the course of cross-
examination of PW-1, site plan was also exhibited as Ex.PW-1/DX.
Apart from aforesaid documentary evidence, the prosecution has also relied upon the other evidence (case property) i.e. iron rod Ex.P-1.
8. It is pertinent to mention here that in the present case, accused Nitin @ Naveen was declared as proclaimed offender vide order dated 13/09/2022 passed by the Ld. Predecessor of this Court.
9. TESTIMONIES OF PROSECUTION WITNESSES
(i) PW-1 in his testimony had deposed that on 27/08/2015 at about 10:30 PM, he had reached with his three wheeler at the water plant in village Hiran Kudna for parking of his three wheeler and he had parked his three wheeler Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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there and came outside the three wheeler, where both accused Vipin and Nitin met him. Accused Vipin was having an iron rod in his hand and accused Nitin caught hold of his both hands and accused Vipin gave two blows of the iron rod on his head, due to which, he fell down on the ground and thereafter, accused persons gave kicks blows to him. One Jagdish from the water plant came outside after hearing his shouting and when he came there, accused persons fled away from the spot and he also made call to his brother namely Satish Kumar. Satish Kumar came there and took him to hospital. Jagdish had also made call on 100 number. Police officials came there but he had not given his statement as he was unable to speak due to injury. Next day, his statement Ex.PW-1/A was recorded by the police. Prior to this incident, accused persons used to demand money for drinking liquor but he never gave money to the accused persons for that purpose. After two months, he was called by the police in the hospital, where his blood sample was taken.
PW-1 was cross-examined by counsel for both accused.
(ii) PW-2 in his testimony had deposed that on 27/08/2015, he had reached at the water plant of his brother, situated in his village at about 8:00 PM and at about 10:30 PM, Mehar Singh came with his three wheeler and at that time, he was sitting inside the plant. He had heard the noise of the quarrel from outside the plant and thereafter, he came outside and saw that both the accused were present there and accused Vipin was having one iron rod in his hand and accused Nitin was holding the hand of Mehar Singh. Accused Vipin gave iron Digitally signed by VIJAY SHANKAR VIJAY Date:
SHANKAR 2026.01.31
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State V. Vipin @ Lombri & Anr.
blows to Mehar Singh on his head and thereafter, they fled away from the spot.
After that, he made call on 100 number and he had also made call to his brother Satish, who came there and took Mehar Singh to the hospital.
PW-2 was cross-examined by counsel for both accused.
(iii) PW-3 in his testimony had deposed that he was running a water plant in village Hiran Kudna. On 27/08/2015, he was present at his house and at about 10:30 PM, he had received a phone call from his younger brother Jagdish, who told him that the driver Mehar Singh had been beaten by Vipin and Nitin. Thereafter, he reached at the spot with one car of his friend and they waited for the PCR. Since PCR did not reach, he took the injured Mehar Singh to Soniya hospital, where he was given first aid. Thereafter, he took the injured to Sanjay Gandhi hospital, where he was admitted for whole night and next day, he was discharged from the hospital. Mehar Singh told him that accused Nitin and Vipin had caused injuries to him.
PW-3 was cross-examined by counsel for both accused.
(iv) PW-4 in his testimony had deposed that on 28/08/2015 at about 8:00 pm, he had received a rukka from HC Ashok and on the basis of the same, he got registered the FIR no. 444/2015 Ex.PW-4/A. He had made endorsement on rukka Ex.PW-4/B and after registration of the FIR, he had handed over the copy of the FIR and original rukka to SI Deepak for further investigation. He had issued certificate u/s 65-B Indian Evidence Act Ex.PW-4/C in respect of the Digitally signed by VIJAY SHANKAR VIJAY Date:
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computerized copy of the FIR.
PW-4 was not cross-examined by counsel for both accused, despite opportunity.
(v) PW-5 in his testimony had deposed that on 27/08/2015 at about 11:06 pm, he had received a wireless message through wireless operator and on the basis of the same, he had recorded DD no. 32 A Ex.PW-5/A and after lodging the said DD, it was informed to HC Ashok for further necessary action.
PW-5 was not cross-examined by counsel for both accused, despite opportunity.
(vi) PW-6 in his testimony had deposed that on 27/08/2015 at about 11:06 pm, he had received DD No. 32A Ex. PW-5/A regarding the quarrel near Hanuman Mandir, village Hiran Kudna and he had received the telephonic message in respect of DD No. 32A while he was attending another call in the area. Upon receiving the said DD, he alongwith Ct. Krishan Dut went to the Hanuman Mandir, village Hiran Kudna, where they came to know that injured had been shifted by the private vehicle in SGM hospital. Thereafter, they went to SGM hospital, where he had received the MLC of the injured Mehar Singh and he was getting treatment in the hospital. He had made request to Mehar Singh for giving his statement but he refused to give his statement due to pain. Thereafter, they returned to the PS and DD no. 32 was kept pending. On 28/08/2015 at about 7:00 pm, injured Mehar Singh came to PS Mundka and he Digitally signed by VIJAY SHANKAR VIJAY Date:
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had recorded his statement Ex.PW-1/A. He had made an endorsement on Ex.PW-1/A and given the same to duty officer for registration of the case. After registration of the present FIR, the investigation was assigned to SI Deepak Singh and he had handed over the MLC of the injured Mehar Singh to SI Deepak Singh.
PW-6 was not cross-examined by counsel for both accused, despite opportunity.
(vii) PW-7 in his testimony had deposed that on 06/09/2015, SI Deepak Singh had deposited one duly sealed pullanda containing iron rod alongwith copy of seizure memo and he had made entry in this regard at serial no. 865 in register no. 19 Ex.PW-7/A. On 06/10/2015, SI Deepak Singh had again deposited one duly sealed blood gauze and sample seal of SGMH MONGOL PURI DELHI and he had made entry in this regard at serial no. 900 in register no. 19 Ex.PW-7/B. On 15/10/2015, aforesaid case property of the present case alongwith sample seal were sent to FSL Rohini through Ct. Jaidev vide RC No. 204/21/15 Ex. PW-7/C. After depositing the same, Ct. Jaidev had handed over him copy of RC and acknowledgment receipt Ex.PW-7/D. The case properties remained intact and not tampered with in any manner till it remained in his custody.
PW-7 was not cross-examined by counsel for both accused, despite opportunity.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2026.01.31
17:08:42
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State V. Vipin @ Lombri & Anr.
(viii) PW-8 in his testimony had deposed that on 06/10/2015, he had
joined the investigation of the present case with IO SI Deepak Singh.
PW-8 was not cross-examined by counsel for the accused Vipin @ Lombri, despite opportunity.
(ix) PW-9 in his testimony had deposed that on 28/08/2015, he was on duty as CMO in Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi and on that day, he had medically examined injured Mehar Singh S/o Sh. Ishwar vide MLC No. 16121 Ex.PW-9/A with the alleged history of physical assault. Upon medical examination, he had found two lacerated wound over left parietal region approximately 10 cm deep wound and 3 cm parallel wound as well as tenderness over face and left knee. He had also observed that patient was suffering from abrasion over right infra orbital region and after medical examination, the patient was referred to SR surgery. He had also explained in MLC that the patient had suffered two lacerated wounds both parallel to each other approximately 10 cm in length and the distance between the said two injuries was approximately 3 cm. He had also opined that the patient had suffered deep wound over his left parietal region. Nature of injury on the MLC was opined as simple in nature by Dr. Lalit and from surgical side, the patient was examined by Dr. Shitiz and the observations were made by Dr. Shitiz on MLC Ex.PW-9/A. PW-9 was cross-examined by counsel for the accused Vipin @ Lombri.
Digitally signed by VIJAY SHANKAR VIJAY Date:
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State V. Vipin @ Lombri & Anr.
(x) PW-10 in his testimony had deposed that as per MLC Ex.PW-9/A,
the nature of injury on the MLC of injured Mehar Singh was opined as simple in nature by Dr. Lalit.
PW-10 was cross-examined by counsel for the accused Vipin @ Lombri.
(xi) PW-11 in his testimony had deposed that on 06/09/2015, he had joined the investigation in the present case alongwith IO SI Deepak and they went to Hiran Kudna village and upon reaching there, IO signaled towards a person and IO made inquiries from the said person, whose name was revealed as Vipin @ Lombri. Said accused took them to his house at H. No. 210, near Community Centre, Hiran Kudna village, where he got recovered one iron rod from which, he had committed the offence. IO had arrested the accused Vipin @ Lombri vide arrest memo Ex.PW-11/A, conducted his personal search vide memo Ex.PW-11/B and also recorded the disclosure statement of accused vide memo Ex.PW-11/C. IO had prepared the pullanda of the recovered iron rod and sealed the same with the seal of 'DS' and thereafter, the said pullanda was seized vide seizure memo Ex.PW-11/D and IO had handed over the seal to him after use. Accused took them to the spot of incident i.e. in front of water plant, near Hanuman Mandir, Hiran Kudna village and IO had prepared the pointing out memo Ex.PW-11/E. Accused was taken to Sanjay Gandhi Hospital for his medical examination and after his medical examination, they returned to PS and case property was deposited in Malkhana and the accused was sent to Lock-up.
Digitally signedby VIJAY VIJAY SHANKAR SHANKAR Date: 2026.01.31 17:09:03 +0530 FIR No. 444/2015 PS Mundka Page No.12/48 State V. Vipin @ Lombri & Anr.
He had handed over the seal to the MHC(M) on the same day.
PW-11 was cross-examined by counsel for the accused Vipin @ Lombri.
(xii) PW-12 in his testimony had deposed that on 28/08/2015, the present case file was marked to him for further investigation and he had received the copy of the FIR and original rukka from the Duty Officer. Thereafter, he met with the complainant Mehar Singh, who was already present in the police station. After that, he alongwith complainant went to the spot of incident i.e. near Water Tank, Main Gali, Village Hiran-Kudna, Delhi and upon reaching there, he had prepared the site- plan Ex.PW-1/DX. Thereafter, he had recorded the statement of the complainant u/s 161 Cr.P.C. and he had also met with the caller namely Jagdish at the spot and recorded his statement u/s 161 Cr.P.C. He had also met with the eye-witness namely Satish and recorded his statement u/s 161 Cr.P.C. On the way to police station, he had searched for the accused, however, he was not found. Upon reaching the police station, he met with HC Ashok and recorded his statement u/s 161 Cr.P.C. Thereafter, on 06/09/2015, he alongwith Ct. Sumit went to Community Centre, Village Hiran Kudna, Delhi, where they saw one person, who upon seeing them, started walking in suspicious manner and they apprehended him. Name of the said person was disclosed as Vipin @ Lombri and during formal interrogation, he came to know that he was involved in the present case. Accordingly, the accused Vipin @ Lombri was arrested vide arrest memo Ex.PW-11/A, his personal search was conducted vide personal Digitally signed by VIJAY SHANKAR VIJAY Date:
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search memo Ex.PW-11/B and he had recorded disclosure statement of accused Ex.PW-11/C. Thereafter, the accused led them to the spot of the incident and upon reaching there, he had prepared the pointing out memo Ex.PW-11/E. Thereafter, the accused led them to his house at Village Hiran Kudna and upon reaching there, the accused produced one iron rod, which he had kept inside the corner of the room and the said iron rod/saria was having blood spots and some hair. He had prepared the pullanda and sealed the same with the seal of 'DS' and thereafter, he had seized iron rod/saria vide seizure memo Ex.PW-11/D and the seal after its use was handed over to Ct. Sumit. Thereafter, the accused was medically examined at Sanjay Gandhi Memorial Hospital and thereafter, they returned back to police station and case property was deposited with the MHC (M). On 06/10/2015, he alongwith Ct. Jaidev went to Village Hiran Kudna, where they met with accused Nitin @ Naveen and he was formally interrogated.
Accordingly, the accused Nitin @ Naveen was arrested vide arrest memo Ex.PW-8/A, his personal search was conducted vide personal search memo Ex.PW-8/B and recorded his disclosure statement Ex.PW-8/C. Thereafter, the accused led them to the spot of the incident and upon reaching there, he had prepared the pointing out memo Ex.PW-8/D. Thereafter, the accused was taken to Sanjay Gandhi Memorial Hospital for his medical examination and upon reaching the hospital, he met with the complainant Mehar Singh and his blood sample was collected in the hospital and same was handed over to him by the hospital authorities in duly sealed parcel alongwith the sample seal. He had seized the said blood sample alongwith sample seal vide seizure memo Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Ex.PW-12/A. Thereafter, they produced the accused Nitin @ Naveen at Tis Hazari Courts and the accused was sent to judicial custody and after that, they returned back to police station and case property was deposited with the MHC (M). He had recorded the statement of Ct. Jaidev. During the investigation, he had obtained the opinion on the MLC of the victim, the case property was sent to FSL, Rohini and after completion of investigation and recording of the statements of witnesses, he had prepared the charge-sheet and filed the same in the concerned Court.
PW-12 was cross-examined by counsel for the accused Vipin @ Lombri.
STATEMENT OF THE ACCUSED U/S 313 CR.P.C. (SECTION 351 BNSS)
10. Separate statement of the accused Vipin @ Lombri was recorded u/s. 313 Cr.P.C. (section 351 BNSS) wherein he denied the allegations against him and rebutted the prosecution evidence against him and claimed that he is innocent and has been falsely implicated and he has no connection with the commission of offence of the present case. It was also stated that he had not caused any injury to the complainant/injured Mehar Singh. It was also stated that on 27/08/2015, he had tied his pet dog in front of his house and complainant Mehar Singh, who was under the heavy influence of liquor came on his tractor and ran over his tractor upon his dog, due to which, his dog died. It was also stated that when he agitated the same, the complainant in attempt to come down Digitally signed by VIJAY SHANKAR VIJAY Date: SHANKAR 2026.01.31 17:09:23 +0530 FIR No. 444/2015 PS Mundka Page No.15/48 State V. Vipin @ Lombri & Anr.
from his tractor fell down from his tractor in the nala, due to which, he sustained the injury. It was also stated that he wants to lead evidence in his defence.
DEFENCE EVIDENCE
11. In the present case, accused had led defence evidence and he got examined Sh. Vinay Kumar as DW-1 in his defence.
DW-1 in his testimony had deposed that he knew accused Vipin @ Lombri as he is his neighbour. He does not remember the date, month and year but on that day at about 8-8:30 PM, one driver of tractor had ran over his tractor upon the pet dog of accused, due to which, an altercation had taken place between the driver of the tractor and the accused. Thereafter, when driver of tractor was getting down from his tractor, he got disbalanced and he fell down in the nala and he had sustained injury on his head. At that time, the driver of the tractor was under the influence of liquor. Thereafter, the driver of tractor had called the police and police came there and took the accused and his brother Nitin to police station.
DW-1 was cross-examined by Addl. PP for the State.
FINAL ARGUMENTS
12. This Court heard the final arguments advanced by Ld. Substitute Addl. PP for the State and Ld. Counsel for the accused Vipin @ Lombri and carefully perused the entire record including the testimonies on record.
During the course of final arguments, it was submitted by Digitally signed by VIJAY SHANKAR VIJAY Date:
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Substitute Addl. PP for the State that the prosecution witnesses have duly supported the case of the prosecution and from the testimonies of prosecution witnesses and the documentary evidence as well as other evidence relied upon by the prosecution, the prosecution has been able to prove its case against the accused beyond reasonable doubt and accused Vipin @ Lombri be convicted for the offence as mentioned in the charge. On the other hand, during the course of final arguments, it was submitted by counsel for the accused Vipin @ Lombri that the accused has been falsely implicated in the present case and there is no incriminating evidence on record against the accused and the prosecution has failed to prove its case against the accused Vipin @ Lombri beyond reasonable doubt and the accused Vipin @ Lombri be acquitted in the present case.
13. It is well settled law that in order to bring home conviction the prosecution has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the prosecution to prove its case in such a manner so as to bring it outside the pale of any reasonable doubt.
It was held by the Hon'ble Supreme Court of India in case titled as " Goverdhan & Anr. V. State of Chhattisgarh" {2025 INSC 47} that :-
" 18. In case of a crime committed, upon completion of investigation by the investigation agency, the accused are brought before the court to face trial. Under our criminal jurisprudence, the court ordinarily is not privy to the evidence collected during the investigation by the investigation agency. After completion of the investigation, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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what is brought before the trial court is an array of evidence, both documentary and oral, collected by the investigating agency against the accused which are required to be marshalled and analyzed by the court to arrive at appropriate conclusions. The prosecution seeks to recreate the incident of crime before the court in sequence, based on the evidence so collected, linking the accused with the commission of crime. Such recreation of crime by the prosecution before the court is akin to putting the evidence together as in a jigsaw puzzle whereby all the relevant pieces of evidence are put together to complete the picture of the crime. The prime responsibility of the court is to see whether this jigsaw puzzle has been properly placed by the prosecution from which a clear picture emerges as to the happening of the incident with the assigned role of the accused as part of the aforesaid jigsaw puzzle. Only, thereafter, the role of the accused in perpetrating the offence can be properly ascribed and proved and accordingly, criminal liability fastened on the accused.
19. As per Section 3 of the Indian Evidence Act, 1872, a fact can be said to have been proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act up on the supposition that it exists. The court undertakes this exercise of examining whether the facts alleged including the particular criminal acts attributed to the accused are proved or not.
20. It is also to be noted that the law does not contemplate stitching the pieces of evidence in a watertight manner, for the standard of proof in a criminal case is not proof beyond all doubts but only beyond reasonable doubt. In other Digitally signed by VIJAY SHANKAR VIJAY Date:
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words, if a clear picture emerges on piecing together all evidence which indicates beyond reasonable doubt of the role played by the accused in the perpetration of the crime, the court holds the accused criminally liable and punishes them under the provisions of the penal code, in contradistinction to the requirement of proof based on the preponderance of probabilities as in case of civil proceedings.
26. Thus, the requirement of law in criminal trials is not to prove the case beyond all doubt but beyond reasonable doubt and such doubt cannot be imaginary, fanciful, trivial or merely a possible doubt but a fair doubt based on reason and common sense...."
14. Law relating to appreciation of evidence of the witnesses has been elaborated by the Hon'ble High Court of Delhi in case titled as "Satish @ Bombaiya V. State" { 44 (1991) DLT 561} and it was held that :-
"........ While appreciating the evidence of a witness approach must be whether the evidence of the witness, read as a whole, appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks, and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of the evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical Digitally signed by VIJAY SHANKAR VIJAY Date:
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error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defense may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
15. Law relating to appreciation of ocular evidence has been elaborated by the Hon'ble Supreme Court of India in case titled as " Shahaja @ Shahjahan Ismail Mohd. Shaikh V. State of Maharashtra" {Crl. Appeal No. 739/2017 decided on 14/07/2022} and it was held that :-
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under :-
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.Digitally signed by VIJAY SHANKAR
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VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date: 2026.01.31 17:10:30 +0530 FIR No. 444/2015 PS Mundka Page No.22/48 State V. Vipin @ Lombri & Anr.
details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
16. FINDINGS
(i) Testimony of the complainant/injured In the present case, charge for the offence u/s. 308/34 IPC was framed against the accused Vipin @ Lombri and Nitin @ Naveen.
It is the case of the prosecution that on 27/08/2015 at about 10:30 PM at water plant near Hanuman Mandir, Hiran Kudna Village, Delhi within the jurisdiction of police station Mundka, both accused Vipin @ Lombri and Nitin @ Naveen in furtherance of their common intention had caused injury on the head of the complainant Mehar Singh with iron rod and legs blows with such intention or knowledge and under such circumstances that, if they both by that act caused the death of the complainant, both accused would have been guilty of culpable homicide not amounting to murder and both accused thereby committed the offence punishable u/s 308/34 IPC.
PW-1 is the complainant/injured in the present case.
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The sanctity of testimony of injured witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Abdul Sayeed V. State of Madhya Pradesh" {(2010) 10 SCC 259} and it was held that:-
"26. 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.......
28. 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 in-built 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".
Law relating to appreciation of evidence of injured eye-witness has been elaborated by the Hon'ble Supreme Court of India in case titled as "Balu Sudam Khalde & Anr. V. The State of Maharashtra" {(2023) 13 SCC 365} and it was held that:- Digitally signed by VIJAY SHANKAR VIJAY Date:
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" When the evidence of an injured eye-witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:-
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded".
Complainant/injured/PW-1 in his testimony has categorically, elaborately and graphically described as to how the offence was committed by Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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both accused Vipin @ Lombri and Nitin @ Naveen at the relevant time, date and place. Complainant/injured/PW-1 in his testimony has also categorically, elaborately and graphically described the mode and manner in which both accused have caused the injury to him at the relevant time, date and place.
Complainant/injured/PW-1 in his testimony had deposed that on 27/08/2015 at about 10:30 PM, he had reached with his three wheeler at the water plant in village Hiran Kudna for parking of his three wheeler and he had parked his three wheeler there and came outside the three wheeler, where both accused Vipin and Nitin met him. He had also deposed that accused Vipin was having an iron rod in his hand and accused Nitin caught hold of his both hands and accused Vipin gave two blows of the iron rod on his head, due to which, he fell down on the ground and thereafter, accused persons gave kicks blows to him. He had also deposed that one Jagdish from the water plant came outside after hearing his shouting and when he came there, accused persons fled away from the spot and he also made call to his brother namely Satish Kumar and Satish Kumar came there and took him to hospital. He had also deposed that Jagdish had also made call on 100 number. He had also deposed that police officials came there but he had not given his statement as he was unable to speak due to injury. He had also deposed that next day, his statement Ex.PW-1/A was recorded by the police. He had also deposed that prior to this incident, accused persons used to demand money for drinking liquor but he never gave money to the accused persons for that purpose. He had also deposed that after two months, he was called by the police in the hospital, where his blood sample was taken. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Complainant/injured/PW-1 has duly supported the case of the prosecution. Complainant/injured/PW-1 in his testimony had duly proved on record his complaint Ex. PW-1/A, on the basis of which, the present case FIR was got registered. Complainant/injured/PW-1 in his complaint Ex.PW-1/A has specifically mentioned the names of both accused Vipin and Nitin as assailants. Names of both accused Vipin and Nitin have also been specifically mentioned in the FIR Ex.PW-4/A. Complainant/injured/PW-1 in his testimony had also specifically mentioned the names of both accused as assailants. The contents of complaint Ex.PW-1/A and FIR Ex.PW-4/A have been duly proved on record and corroborated by the complainant/injured/PW-1, eye-witness and other prosecution witnesses.
Testimony of the complainant/injured/PW-1 is duly corroborated with the testimonies of eye-witness, public witness and other prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
There is nothing on the record to disbelieve the testimony/version of the complainant/injured/PW-1. In the cross-examination of PW-1, no material contradiction/inconsistency has been surfaced or pointed out except some minor ones, which are but natural.
(ii) Testimony of eye-witness and public witness PW-2 is the eye-witness of the incident. PW-3 is stated to be owner of water plant, which was situated near the place of incident.Digitally signed
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PW-2 in his testimony has also categorically, elaborately and graphically described as to how the offence was committed by both accused at the relevant time, date and place. PW-2 in his testimony has deposed almost same facts as deposed by complainant/injured/PW-1 in his testimony.
PW-3 in his testimony had deposed that on 27/08/2015, he was present at his house and at about 10:30 PM, he had received a phone call from his younger brother Jagdish, who told him that the driver Mehar Singh had been beaten by Vipin and Nitin. He had also deposed that thereafter, he reached at the spot with one car of his friend and they waited for the PCR. He had also deposed that since PCR did not reach, he took the injured Mehar Singh to Soniya hospital, where he was given first aid. He had also deposed that thereafter, he took the injured to Sanjay Gandhi Hospital, where he was admitted for whole night and next day, he was discharged from the hospital. He had also deposed that Mehar Singh told him that accused Nitin and Vipin had caused injuries to him.
PW-2 and PW-3 have also duly supported the case of the prosecution. Testimonies of PW-2 and PW-3 are corroborated with the testimonies of PW-1 and other concerned prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution.
There is nothing on the record to disbelieve the testimonies/versions of PW-2 and PW-3. In the cross-examination of PW-2 and PW-3, no material contradiction/ inconsistency has been surfaced or pointed out except some minor ones, which are but natural.
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(iii) Identity of the accused
PW-1 and PW-2 during the course of their testimonies had duly identified both accused Vipin @ Lombri and Nitin @ Naveen. PW-11 and PW-12 during the course of their testimonies had duly identified the accused Vipin @ Lombri. PW-1, PW-2 and PW-12 in their testimonies have specifically mentioned the names of both accused Vipin @ Lombri and Nitin @ Naveen. PW-11 in his testimony has specifically mentioned the name of the accused Vipin @ Lombri. Counsel for the accused Vipin @ Lombri had not put any question in the cross-examination of the prosecution witnesses to dispute the identity of the accused Vipin @ Lombri. Hence, identity of the accused Vipin @ Lombri is duly established by the prosecution.
(iv) Presence of the accused PW-1 and PW-2 in their testimonies have specifically deposed that both accused Vipin @ Lombri and Nitin @ Naveen were present at the place of incident at the relevant time and date. Counsel for the accused Vipin @ Lombri had not put any question in the cross-examination of PW-1 and PW-2 to dispute the presence of the accused Vipin @ Lombri at the place of incident at the relevant time and date. Even otherwise, accused Vipin @ Lombri in his statement u/s. 313 Cr.P.C. (section 351 BNSS) had admitted his presence at the place of incident on the date of incident. DW-1 in his testimony had also admitted the presence of both accused at the place of incident on the date of incident. Hence, presence of the accused Vipin @ Lombri at the place of the incident at the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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relevant time and date is duly established by the prosecution.
(v) Identity of the case property/ weapon of offence During the course of examination of PW-11, weapon of offence i.e. iron rod Ex.P-1 was produced in the Court and same was duly identified by PW-11. Counsel for the accused Vipin @ Lombri had not put any question in the cross-examination of PW-11 to dispute the identity of weapon of offence i.e. iron rod Ex.P-1. Seizure memo of weapon of offence i.e. iron rod Ex.PW-11/D was duly proved on record by the prosecution. Hence, identity of weapon of offence i.e. iron rod Ex.P-1 has been duly established/proved by the prosecution.
(vi) Recovery of weapon of offence i.e iron rod It is the case of the prosecution that at the relevant time, date and place, both accused in furtherance of their common intention had caused injury on the head of the complainant Mehar Singh with iron rod. It is also the case of the prosecution that on 06/09/2015, the weapon of offence i.e. iron rod was got recovered at the instance of the accused Vipin @ Lombri from his house.
PW-11 and PW-12 are the recovery witnesses in the present case. PW-11 and PW-12 in their testimonies have specifically deposed regarding recovery of weapon of offence i.e. iron rod Ex.P-1 at the instance of the accused Vipin @ Lombri from his house on 06/09/2015. During the course of examination of PW-11, weapon of offence i.e. iron rod Ex.P-1 was produced in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the Court and same was duly identified by PW-11. Seizure memo of weapon of offence i.e. iron rod Ex.PW-11/D was duly proved on record by the prosecution. Hence, factum regarding recovery of weapon of offence i.e. iron rod Ex.P-1 at the instance of the accused Vipin @ Lombri from his house has been duly established/proved by the prosecution.
(vii) Medical witnesses PW-9 and PW-10 are the medical witnesses examined by the prosecution in the present case.
PW-9 is the medical witness, who medically examined the complainant/injured/PW-1 and prepared his MLC Ex.PW-9/A. PW-9 in his testimony had specified the injuries and nature of injuries sustained by the complainant/injured/PW-1.
PW-10 is the medical witness, who appeared on behalf of Dr. Lalit. PW-10 in his testimony had deposed that as per MLC Ex.PW-9/A, nature of injury on the MLC of injured Mehar Singh was opined as simple in nature by Dr. Lalit.
In the MLC Ex.PW-9/A, injuries sustained by the complainant/injured/PW-1 Mehar Singh have been specifically mentioned and nature of injury has been opined as simple.
MLC Ex.PW-9/A of the complainant/injured/PW-1 has been duly proved on record by the aforesaid medical witnesses. There is nothing on the record to disbelieve the testimonies/versions/opinions of the aforesaid medical Digitally signed by VIJAY SHANKAR VIJAY Date: SHANKAR 2026.01.31 17:11:18 +0530 FIR No. 444/2015 PS Mundka Page No.31/48 State V. Vipin @ Lombri & Anr.
witnesses/concerned doctors. In the cross-examination of aforesaid medical witnesses, no material contradiction/ inconsistency has been surfaced or pointed out.
(viii) Testimonies of police witnesses In the present case, PW-4, PW-5, PW-6, PW-7, PW-8, PW-11 and PW-12 are the police officials. From the testimonies of the aforesaid police witnesses, it is evident that investigation conducted including the documents prepared in the present case during the course of investigation have been substantially proved by the aforesaid police witnesses.
PW-12 is the IO in the present case, who deposed regarding investigation conducted by him and he duly proved on record the documents relating to the investigation conducted by him.
(ix) Testimony of defence witness In the present case, accused Vipin @ Lombri had led defence evidence and he got examined Sh. Vinay Kumar as DW-1 in his defence.
As per testimony of DW-1, he was the eye-witness of the incident. DW-1 in his testimony had deposed that he knew accused Vipin @ Lombri as he is his neighbour. He had also deposed that he does not remember the date, month and year but on that day at about 8-8:30 PM, one driver of tractor had ran over his tractor upon the pet dog of accused, due to which, an altercation had taken place between the driver of the tractor and the accused. He had also Digitally signed by VIJAY SHANKAR VIJAY Date:
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deposed that thereafter, when driver of tractor was getting down from his tractor, he got disbalanced and he fell down in the nala and he had sustained injury on his head. He had also deposed that at that time, the driver of the tractor was under the influence of liquor. He had also deposed that thereafter, the driver of tractor had called the police and police came there and took the accused and his brother Nitin to police station.
As per case of the prosecution, at the relevant time and date, complainant/injured/PW-1 came to the spot on his three wheeler but DW-1 in his testimony had deposed that complainant/injured/PW-1 came on tractor. Presence of accused persons and complainant/injured/PW-1 has been admitted by DW-1 in his testimony. Accused in his statement u/s 313 Cr.P.C. (section 351 BNSS) had admitted his presence as well as presence of complainant/injured/PW-1 at the spot at the relevant time and date.
Accused in his statement u/s 313 Cr.P.C. (section 351 BNSS) had stated that complainant/injured/PW-1 had ran over his tractor upon his pet dog, due to which, his dog died. On the other hand, DW-1 in his cross-examination had deposed that the aforesaid dog is still alive. Statement of the accused u/s 313 Cr.P.C. (section 351 BNSS) and testimony of DW-1 is contradictory in respect of death of dog of the accused.
Accused in his statement u/s 313 Cr.P.C. (section 351 BNSS) had stated that at the relevant date and place, the complainant/injured/PW-1 was under the heavy influence of liquor. DW-1 in his testimony had also deposed that the complainant/injured/PW-1 was under the influence of liquor. In the present Digitally signed by VIJAY SHANKAR VIJAY Date:
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case, MLC Ex.PW-9/A of the complainant/injured/PW-1 has been proved on record by the prosecution. In the MLC Ex.PW-9/A, it is nowhere mentioned that the complainant/injured/PW-1 was under the influence of liquor. No documentary and specific evidence has been led by the accused to show that the complainant/ injured/PW-1 was under the influence of liquor at the relevant time, date and place.
DW-1 in his testimony had also admitted that an altercation had taken place between the accused Vipin @ Lombri and the complainant.
There is nothing in the testimony of DW-1 to show that during the course of investigation, he had made any effort to join the investigation of the present case with police. None of the prosecution witness had deposed that DW-1 was present at the spot at the time of incident. In view of the same, the testimony of DW-1 has become doubtful.
Hence, in the absence of any documentary evidence, the testimony of DW-1 cannot said to be credible and reliable. On the other hand, prosecution has been able to prove its case against the accused beyond reasonable doubt from the testimonies of complainant/injured, eye-witness, public witness, medical and police witnesses as well as medical and other documents and case property relied upon by the prosecution.
17. CONTENTIONS OF COUNSEL FOR THE ACCUSED
(a) During the course of final arguments, it was submitted by counsel Digitally signed by VIJAY SHANKAR VIJAY Date:
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for the accused Vipin @ Lombri that the accused had not caused any injury to the complainant/injured as he was not having any motive to cause the injury to the complainant/injured and in view of the same, benefit of doubt be given to the accused. On the other hand, it was submitted by Substitute Addl. PP for the State that accused was having the motive to cause the injury to the complainant/injured.
For the purpose of any offence, motive, intention and knowledge are relevant factors.
The terms motive, intention and knowledge have been elaborated by the Hon'ble Supreme Court of India in case titled as " Basdev V. The State of PEPSU" { AIR 1956 SC 488} and it was held that :-
"..........of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they cannote different things......."
PW-1 in his testimony had deposed that prior to the incident, accused persons used to demand money for drinking liquor but he never given money to the accused persons for that purpose. Accused in his statement u/s 313 Cr.P.C. (section 351 BNSS) had stated that complainant/injured/PW-1 had ran over his tractor upon his pet dog, due to which, his dog died.
Digitally signed by VIJAYSHANKAR VIJAY Date:
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In view of the above, it is clear that accused was having motive to cause the injury to the complainant/injured/PW-1.
Even otherwise, it is well settled law that motive looses all its importance in a case where direct evidence of eye-witness is available.
It was held by Hon'ble Supreme Court of India in case titled as "State of Uttar Pradesh V. Kishan Pal & Ors." { (2008) 16 SCC 73 } that :-
"..........the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. The motive may be considered as circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive looses all its importance in a case where direct evidence of eye-witnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eye- witnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of eye- witnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction........."
In view of the law laid in Kishan Pal case (supra), it is held that the motive was not required to be proved by the prosecution as there is a direct evidence of the complainant/injured/PW-1 and eye-witness/PW-2 in the present case. Hence, the contention of counsel for the accused in this regard is not tenable. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(b) During the course of final arguments, it was submitted by counsel for the accused Vipin @ Lombri that in the present case, as per case of the prosecution, complainant/injured had sustained simple injury and in view of the same, ingredients of the offence u/s. 308 IPC are not attracted. It was further submitted that in view of the same, benefit of doubt be given to the accused. On the other hand, it was submitted by Substitute Addl. PP for the State that for the purpose of Section 308 IPC, simple injury is sufficient as the injury was caused on the vital part of body of complainant/injured/PW-1.
Section 308 IPC has prescribed the punishment for attempt to commit culpable homicide not amounting to murder. It is well settled law that for considering the offence u/s. 308 IPC, the Court has to see the following aspects
(i) that the accused has committed an act, (ii) that the said act was committed with the intention or knowledge to commit culpable homicide not amounting murder, (iii) that the offence was committed under such circumstances, if the accused by that act had caused death he would have been guilty of culpable homicide, (iv) type of weapon used in the offence and on which part of the body injury caused.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar V. NCT of Delhi & Ors." {(1998 ) 8 SCC 557} that :-
"The view taken by the High Court is obviously erroneous because offence punishable under Section 308 IPC postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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amounting to murder. An attempt of that nature may actually result in hurt or may not. It is the attempt to commit culpable homicide which is punishable under Section 308 IPC whereas punishment for simple hurts can be meted out under Sections 323 and 324 and for grievous hurts under Sections 325 and 326 IPC. Qualitatively, these offences are different. The High Court was thus not well advised to take the view as afore-extracted to bring down the offence to be under Sections 323/34 IPC and then in turn to hold that since that offence was investigated by the police without permission of the magistrate, the proceedings under that provision be quashed. For the view afore-taken as to the commission of the offence under Sections 308/34 IPC, it is not necessary to dwell on the correctness of the second part of the order relating to quashing of proceedings under Sections 323/34 IPC. Thus, the entire order of the High Court deserves to be and is hereby quashed, restoring the status quo ante of the trial remaining with the Additional Sessions Judge to proceed in accordance with law".
On perusal of testimony of complainant/injured/PW-1 as well as eye-witness/PW-2 and other prosecution witnesses, it is clear that both accused in furtherance of their common intention had caused the injury to the complainant/injured/PW-1 with weapon of offence i.e. iron rod and the complainant/injured/PW-1 had sustained the injuries as mentioned in the MLC Ex.PW-9/A of the complainant/injured/PW-1. Complainant/injured/PW-1 had sustained the injury on his vital part of his body i.e. head. Nature of injury sustained by the complainant/injured/PW-1, weapon of offence, mode and manner in which weapon of offence i.e. iron rod used by the accused to cause Digitally signed by VIJAY SHANKAR VIJAY Date:
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the injury to the complainant/injured/ PW-1 clearly shows that both accused were having intention and knowledge to attempt to commit culpable homicide not amounting to murder of the complainant/injured/PW-1. In view of the same, it is clear that the ingredients of the offence u/s 308 IPC are attracted in the present case. Hence, the contention of counsel for the accused in this regard is not tenable.
(c) During the course of final arguments, it was submitted by counsel for the accused Vipin @ Lombri that as per testimonies of PW-1 and PW-2, public persons were gathered at the spot after the incident but neither the said public persons were joined in the investigation of the present case by the IO nor cited/examined in the present case. It was also submitted that in view of the same, benefit of doubt be given to the accused.
It is well settled law that non-examination of any witness per se will not vitiate the case of the prosecution and it depends upon the quality and not the quantity of the witnesses and its importance.
It was held by Hon'ble Supreme Court of India in case titled as "Rajesh Yadav & Anr. V. State of Uttar Pradesh" {Criminal Appeal No.339- 340/2014 decided on 04/02/2022} that:-
"A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it...."
It is well settled law that non-joining of public witnesses in the investigation is not fatal in every case. In the present case, PW-1, PW-2 and PW-3 were joined in the investigation of the present case. Hence, the contention of counsel for the accused in this regard is not tenable.
(d) During the course of final arguments, it was submitted by counsel for the accused Vipin @ Lombri that in the present case, no independent public witness was joined in the investigation by the police at the time of recovery of weapon of offence i.e. iron rod and in view of the same, the recovery of weapon of offence i.e. iron rod has become doubtful. It was further submitted that in view of the same, benefit of doubt be given to the accused.
It is well settled law that non-examination of any witness per se will not vitiate the case of the prosecution and it depends upon the quality and not the quantity of the witnesses and its importance. It is also well settled law that testimonies of police witnesses cannot be completed discarded only on the ground that no independent public witness was joined in the investigation of the case.
It was held by Hon'ble Supreme Court of India in case titled as Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"Baldev Singh V. State of Haryana" {2015 AIR SCW 6174} that:-
"There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."
It was held by Hon'ble Supreme Court of India in case titled as "Rajesh Yadav & Anr. V. State of Uttar Pradesh" {Criminal Appeal No.339- 340/2014 decided on 04/02/2022} that:-
"A mere non-examination of the witness per se will not vitiate the case of the prosecution. It depends upon the quality and not the quantity of the witnesses and its importance. If the court is satisfied with the explanation given by the prosecution along with the adequacy of the materials sufficient enough to proceed with the trial and convict the accused, there cannot be any prejudice. Similarly, if the court is of the view that the evidence is not screened and could well be produced by the other side in support of its case, no adverse inference can be drawn. Onus is on the part of the party who alleges that a witness has not been produced deliberately to prove it...."
It was held by Hon'ble High Court of Delhi in case titled as "Ram Prasad & Ors. V. State of NCT of Delhi " {CRL. A. 825/2017, 849/2017 Digitally signed by VIJAY SHANKAR VIJAY Date:
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& 816/2017 decided on 13/11/2017} that:-
"Therefore, the investigating team had made all possible efforts to associate independent witness. It is well settled principle of law that mere non joining of the independent witnesses itself is no ground to discard the prosecution version. The appellants Kripa Shankar Sharma and Vikas Chaudhary have not made any specific allegations against the Investigating Officer or the other prosecution witnesses that they had any motive for the false implication of the appellant or they were having any ill-will against them. In the case of Appa Bai and another v. State of Gujarat, reported in AIR 1988 Supreme Court 696, the Supreme Court has observed that the prosecution story cannot be thrown out on the ground that an independent witness has not been examined. The Hon'ble Apex Court has further observed that the civilized people, are generally insensitive when a crime is committed even in their presence and they withdraw from the victims side. They keep themselves away from the Courts unless it is inevitable.
Keeping in view the principles laid down by the Apex Court it cannot be disputed that the general public is very much reluctant to get dragged in police and criminal case because of long drawn trials and needless harassment. Mere fact of non-association of secret informer or other independent persons as a witness at the time of recording the disclosure statement of the appellants and effecting the recovery, itself is no ground to render the testimonies of the official witnesses unworthy of credence and to create any dent in the prosecution case. Hence, no adverse inference on account of non-joining of public witnesses in such raids can be drawn."
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It is well settled law that non-joining of public witness in the investigation is not fatal in every case.
PW-11 and PW-12 were the recovery witnesses of the weapon of offence i.e. iron rod. There is nothing on the record to show that the investigating officer of the present case or other police officials had any motive for the false implication of both accused or they were having any ill-will against them.
In the present case, complainant/injured, eye-witness, public witness and other police witnesses have duly supported the case of the prosecution and their testimonies have been corroborated with the case of the prosecution as well as documentary evidence and case property relied upon by the prosecution. Hence, the contention of counsel for the accused in this regard is not tenable.
(e) During the course of final arguments, it was submitted by counsel for the accused that in the present case, FSL result has not been proved on record by the prosecution and in view of the same, benefit of doubt be given to the accused.
It is pertinent to mention here that in the present case, weapon of offence and blood sample of the complainant/injured were sent to the FSL, Rohini and FSL result dated 25/11/2016 prepared by Dr. Sarabjit Singh, Senior Scientific Officer (Biology), FSL, Rohini was filed in the present case and it was opined in the aforesaid FSL result that "DNA profile of male origin has been generated from the source of exhibits '1' (Iron rod) & '2' (Blood of victim Mehar Digitally signed by VIJAY SHANKAR VIJAY Date:
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Singh). The alleles from the source of exhibit '2' (Blood of victim Mehar Singh) are accounted in the alleles from the source of exhibit '1' (Iron rod)."
Non-examination of aforesaid FSL expert/official and not exhibiting of aforesaid FSL result are not fatal to the case of the prosecution as case of the prosecution is duly corroborated and supported with the testimonies of complainant/injured/PW-1, eye-witness, public witness and other prosecution witnesses and documentary evidence as well as other evidence relied upon by the prosecution. Even otherwise, it is well settled law that FSL result is per se admissible u/s 293 Cr.P.C. (section 329 BNSS). Hence, the contention of counsel for the accused in this regard is not tenable.
(f) During the course of final arguments, it was submitted by counsel for the accused that IO had not investigated the present matter properly and in view of the same, benefit of doubt be given to the accused. On the other hand, it was submitted by Substitute Addl. PP for the State that IO had properly investigated the present matter.
There is nothing on the record to show that IO had not investigated the present matter properly and investigation was defective.
Even otherwise, it was held by Hon'ble Supreme Court of India in case titled as "Ambika Prasad & Anr. V. State (Delhi Administration)" (AIR 2000 SC 718) that :-
.....Dealing with a case of negligence on the part of the investigating officer, this Court in Karnel Singh v. State of MP {(1995) 5 SCC 518} observed that in a case of defective Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of erring investigating officer..."
Hence, the contention of counsel for the accused in this regard is not tenable.
(g) During the course of final arguments, it was submitted by counsel for the accused that there are material contradictions, inconsistencies and improvements in the testimonies of prosecution witnesses and in view of the same, benefit of doubt to be given to the accused. On the other hand, during the course of final arguments, it was submitted by Substitute Addl. PP for the State that there are no material contradictions and improvements in the testimonies of prosecution witnesses.
It was held by Hon'ble Supreme Court of India in case titled as "Sunil Kumar Sambhudayal Gupta V. State of Maharashtra" { (2010) 13 SCC 657} that:-
"While appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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witnesses and the appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons."
In the testimonies of prosecution witnesses, no material contradiction, inconsistency and improvements have been surfaced except some minor ones, which are but natural. Hence, the contention of counsel for the accused in this regard is not tenable.
18. In the present case, mode & manner of offence, nature of injury sustained by the complainant/injured/PW-1, weapon of offence, motive, intention and knowledge are relevant factors. The aforesaid factors have been duly proved on record by the prosecution.
In the present case, PW-1 and PW-2 in their testimonies have specifically deposed regarding the mode and manner in which both accused had committed the offence and caused the injury to the complainant/injured/PW-1. Testimony of complainant/injured/PW-1 is corroborated with the testimony of eye-witness/ PW-2, public witness, medical witnesses, police witnesses as well as documentary and medical evidence and case property i.e. weapon of offence relied upon by the prosecution.
19. In the present case, PW-4, PW-5, PW-6, PW-7 and PW-8 were not cross-examined by the accused/counsel. Testimonies of PW-4, PW-5, PW-6, PW-7 and PW-8 have gone un-rebutted, un-challenged and un-controverted.
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20. All the essential ingredients of the offence u/s. 308/34 IPC have been duly proved on record from the testimonies of prosecution witnesses, documentary and other evidence relied upon by the prosecution.
The prosecution has been able to prove the fact that on 27/08/2015 at about 10:30 PM at water plant near Hanuman Mandir, Hirankudna Village, Delhi, both accused Vipin @ Lombri and Nitin @ Naveen in furtherance of their common intention had caused injury on the head of the complainant Mehar Singh with iron rod and legs blows with such intention or knowledge and under such circumstances that, if they both by that act caused the death of the complainant, both accused would have been guilty of culpable homicide not amounting to murder.
21. CONCLUSION Applying priori and posteriori reasonings, this Court is held that on 27/08/2015 at about 10:30 PM at water plant near Hanuman Mandir, Hirankudna Village, Delhi within the jurisdiction of police station Mundka, both accused Vipin @ Lombri and Nitin @ Naveen in furtherance of their common intention had caused injury on the head of the complainant Mehar Singh with iron rod and legs blows with such intention or knowledge and under such circumstances that, if they both by that act caused the death of the complainant, both accused would have been guilty of culpable homicide not amounting to murder and accused Vipin @ Lombri thereby committed the offence punishable u/s 308/34 IPC. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has been successful to prove its case against the accused Vipin @ Lombri beyond reasonable doubt for the offence under section 308/34 IPC. This Court is held that the accused Vipin @ Lombri has committed the offence punishable under section 308/34 IPC. Accordingly, accused Vipin @ Lombri is convicted for the offence under section 308/34 IPC.
Digitally
signed by
VIJAY
VIJAY SHANKAR
Announced in the open Court SHANKAR Date:
2026.01.31
17:12:52
on 31/01/2026 +0530
(VIJAY SHANKAR)
ASJ-04 (West)
Tis Hazari Courts, Delhi
FIR No. 444/2015 PS Mundka Page No.48/48