Delhi District Court
State vs Ashish Kumar Tiwari on 12 December, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01) :
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
STATE Vs Ashish Kumar Tiwari & Ors
Case No. : 2681/2016
FIR No. : 456/2016
U/S : 307/34 IPC
PS : Kotla Mubarakpur
Particulars of the case
a) Date of Offence : 17.06.2016
b) Offence complained of or proved : 307/34 IPC
c) Name of the complainant : Indal Singh
d) Name of the accused No. 1 : Ashish Kumar Tiwari
His parentage, Sh. Nekiram Tiwari,
R/o 165, Aliganj, K. M.
Pur, Delhi.
Permanent Address : VPO - Bhira Khidi,
PS - Bhira Khidi,
District - Lekhimpur
Khedi, Uttar Pradesh
Name of the accused No. 2 : Ram Singh @ Sanjay
Verma
His parentage, Sh. Ram Radhik
Verma,
R/o 202, Aliganj, KM
Pur, Delhi
Permanent Address : Village - Keshav
Nagar/Ahirandi,
Girant Purvi,
PS - Khurande,
SC No. 2681/2016
FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 1 of 36
District - Gonda,
Uttar Pradesh
Name of the accused No. 3 : Ram Dheeraj @
Pannalal
His parentage, Sh. Munijar,
R/o 165, Aliganj, KM
Pur, Delhi
Permanent Address : H. No. 803, Village -
Keshav Nagar, Girant
Purvi, Bankatawar,
Keshari Nagar,
District - Gonda,
Uttar Pradesh.
Plea of the accused : All accused pleaded
not guilty
Final order : Convicted u/s 308/34
IPC
Date of Institution : 28.09.2016
Date of Judgment reserved for orders : 10.10.2023
Date of Judgment : 12.12.2023
Ld. Additional PP for the State : Sh. Ashok Debbarma
Ld. Counsel for all the accused : Sh. Badri Dass
JUDGMENT
1. CHARGE-SHEET 1.1 As per charge-sheet, in the intervening night of 17-18 June SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 2 of 36 2016, a PCR call vide DD No. 3A dated 18.06.2016 was received regarding "H. No. 165, Aliganj, near Chaupal, ek admi ne drink kar rakhi hai, caller or uski wife ke chaku mar diya hai" in police station and same was entrusted to SI Amit Kumar for further necessary action. SI Amit Kumar along with Ct. Giriraj Meena reached the place of incident i.e. H. No. 165, Aliganj, KM Pur, Delhi. On local inquiry, it was found that two neighboring tenants had scuffled and the victims namely Mr. Indal Singh, Mr. Prem Singh and Mrs. Jayanti have been inflicted serious injuries and they have been shifted to AIIMS Trauma Center through PCR van for treatment. From inquiry, it was found that Mr. Indal Singh, his wife Mrs. Jayanti and his brother-in-law Mr. Prem Singh have been residing in room No. 7 of H. No. 165, Aliganj and the alleged persons with whom quarrel occurred were residing in room No. 6. The alleged person was identified as Ashish Kumar Tiwari. Efforts were also made to trace any independent eye-witness but same could not be traced. SI Amit Kumar also called up the crime team at the spot. In the meantime, photographers from crime team namely Sh. Baldan along with ASI Raj Singh reached at the spot and inspected the crime scene and also took the photographs of the same. In the meantime, DD No. 8B dated 18.06.2016 was received regarding the admission of the victims of the case at AIIMS Trauma Center.
In the meantime, SI Amit Kumar lifted the blood in gauze, bloodstained floor and earth control from the room No. 7 (room of victim). The exhibits were taken into police possession and sealed with SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 3 of 36 the seal of AK.
Thereafter, SI Amit Kumar along with Ct. Giriraj reached at AIIMS Trauma Center and injured persons were found admitted therein vide MLC No. 566525/16 of Mrs. Jayanti, MLC No. 566527/16 of Mr. Indal Singh and MLC No. 566526/16 of Mr. Prem Singh. After conducting inquiry, he recorded the statement of victim Sh. Indal Singh. 1.2 He stated about his tenancy at the alleged place of incident and that he was residing there along with his family and his brother-in- law Prem Singh was also residing with them for the past 2 years. Indal Singh stated that he was working as security guard at AIIMS Hospital. Ashish Tiwari along with his wife was residing in Room No. 6 of the same house. Frequently there were altercations between wife of Ashish Tiwari namely Sarita and wife of Indal Singh namely Jayanti regarding washing of clothes and utensils outside the rooms.
On 17.06.2016 at about 11:30 PM, he along with his brother-in-law Prem Singh were present in the room after having their meals. His wife Jayanti was washing utensils outside the room. Ashish Tiwari was standing outside his room and he started abusing his wife Jayanti regarding old quarrels. On hearing this, he along with his brother-in-law Prem Singh went outside the room and found that Ashish Tiwari was in intoxicated state and was abusing his wife. Indal Singh told his wife to go inside the room and thereafter, they both also came inside the room. After some time, Jayanti went outside the room to bring the utensils inside and during this period, Ashish Kumar Tiwari started SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 4 of 36 assaulting Mrs. Jayanti. On this, Jayanti shouted for help. On hearing this, Prem Singh and Indal Singh himself went outside the room to save Jayanti. When Prem Singh tried to save Jayanti from the clutches of Ashish Tiwari, he gave knife blow to Prem Singh with a knife which he had hidden towards his backside. Prem Singh tried to save himself but he received injury on his face. On this, Ashish Tiwari became more angry and shouted that he will kill them today and started attacking on them. Thereupon, his two accomplices namely Ram Singh and Panna also came out of his room and they were also under the influence of alcohol. They also started beating complainant and his family members. Ram Singh was having a bat in his hand and using the same, he caused beatings to Indal Singh and his wife Jayanti. Thereafter, they shouted for help. On hearing their voice, his landlord Vinod and Mahesh came to rescue them and all three accused ran away from the spot. Thereafter, Indal Singh called on number 100. Police took him, his wife and his brother in law to AIIMS Trauma Center where they were treated. The IO came and recorded his statement. He prayed that action shall be taken against the accused persons.
1.3 On the basis of statement of complainant, a rukka was prepared u/s 307/323/34 IPC and same was sent to PS for registration of FIR through Ct. Giriraj and FIR No. 456/16 u/s 307/323/34 IPC was registered.
1.4 During the course of investigation, on 18.06.2016, victims of the case produced their bloodstained clothes which they were wearing SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 5 of 36 at the time of incident. The bloodstained clothes of each injured were taken into police possession after sealing them with the seal of AK and were deposited in the malkhana.
On the same day, Ashish Kumar surrendered before SI Amit Kumar and he was arrested.
During the course of investigation, SI Amit Kumar also recorded the disclosure statement of the accused Ashish Tiwari in which he stated that he was under inebriated state and some verbal arguments ensued between Mrs. Jayanti and him and out of the rage he caused several serious injuries to Mrs. Jayanti and her family members with vegetable knife and bat. He further stated that he was motivated and supported by his associates namely Ram Singh and Panu in the commission of offence.
On 18.06.2016, accused Ashish Tiwari was medically examined vide MLC No. 566597/16 at AIIMS Trauma Center and produced before the Court and simultaneously an application for one day PC remand to recover the alleged weapon of offence as well as other co- accused persons namely Pannu and Ram Singh was moved by SI Amit Kumar and same was allowed.
Thereafter, on 18.06.2016, he along with Ct. Giriraj and Ashish Tiwari reached Pillanji, Ganda Nala where accused stated that he had dumped the vegetable knife in the ganda nala after the incident. Then SI Amit with the assistance of Ct. Giriraj and pointing out of accused made sincere efforts to trace the weapon of offence i.e. knife but SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 6 of 36 no clue was found. During the PC remand of accused Ashish Tiwari, efforts were also made to trace out the other co-accused persons but no clue was found. Thereafter, accused led the police official to the Room No. 6 of the H. No. 165, Aliganj, KM Pur and at the instance of accused the alleged bat was recovered. The bat was taken into police possession and sealed with the seal of AK and later on, deposited in malkhana.
On 19.06.2016, Ashish Tiwari was produced before the Court and sent to Judicial custody. Efforts were also made to trace the co-accused persons namely Panna Lal and Ram Singh. During the course of investigation, it also came to light that the complainant had left his rented premises from Aliganj and shifted to 1854, Ravidas Basti, Kotla Mubarakpur, New Delhi.
On 12.08.2016, blood samples of victims were obtained at AIIMS Hospital through Ct. Manjeet.
On 19.08.2016, the exhibits of the present case were got deposited at RFSL, Chanakyapuri, Delhi.
On 06.09.2016, alleged Ram Singh @ Sanjay Verma and Ram Dheeraj @ Panna Lal surrendered at police station. In the meantime, complainant Indal Singh also reached there and pointed out towards both the co-accused and identified them as Panna Lal and Ram Singh.
During the course of investigation, on 06.09.2016, both the co-accused Panna Lal @ Ram Dheeraj and Ram Singh @ Sanjay Verma were arrested. However, nothing incriminating was recovered from SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 7 of 36 them.
1.5 The recovered bat was sent to the FSL for examination. The main chargesheet was filed against accused Ashish Tiwari mentioning that FSL result shall be filed through supplementary chargesheet. 1.6 Later on, supplementary charge-sheet was filed against the accused Ram Singh @ Sanjay Verma and Ram Dheeraj @ Panna Lal.
On 10.08.2017, FSL result was submitted in the Court through an application.
2. CHARGE 2.1 On the basis of charge-sheet, charge u/s 307 IPC read with 34 IPC was framed against all the accused persons to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the charge-sheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 16 witnesses as follows:-
S. No. Name of the witness Nature of the evidence PW1 ASI Raj Singh Member of the Mobile Crime Team PW2 HC Manoj Kumar Duty Officer who registered the FIR PW3 Indel Singh Complainant/ injured PW4 W/Ct. Suman Police official who received SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 8 of 36 the PCR Call at Police Headquarters PW5 Ct. Manjeet Police officer who took the injured persons to hospital for their obtaining their blood samples PW6 Dr. Shahadat Hussain, Doctor who obtained the Junior Resident, AIIMS, blood samples of injured New Delhi persons PW7 Ct. Sanjay Police officer who deposited the case exhibits to the RFSL, Chankayapuri PW8 ASI Baldan Singh, Mobile Photographer who clicked the Crime Team photographs of the crime scene PW9 Vinod Kumar Landlord of the building where incident occurred and who arrived at the spot on hearing the noise of quarrel.
PW10 Bhunesh Kumar Sharma, Witness who identified the
Medical Record signatures and handwriting of
Technician, Trauma Dr. Nikhil Chandran K on the
Center, AIIMS MLCs of the injured.
PW11 Dr. Ramakant Singh, Sr. Doctor who concurred with
Resident, Surgery, AIIMS the opinion in the MLCs of
Trauma Center injured.
PW12 Jayanti Injured/ eye-witness
PW13 Ct. Girraj Police officer who
accompanied the IO during
investigation
PW14 Prem Singh Injured/ eye-witness
SC No. 2681/2016
FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 9 of 36
PW15 Ms. Manisha Upadhyaya, FSL expert who deposed
Assistant Director about the preparation of report (biology), In-charge, Mark PW15/A by Ms. Pooja Biology, RFSL, Chanakya Shrotriya Puri, New Delhi PW16 SI Amit Kumar IO of the case 3.2 The prosecution has exhibited following documents/objects in support of its case:-
Sl. No. No. of Nature of Exhibits
Exhibits
1. Ex.PW2/A FIR
2. Ex.PW2/B Certificate u/s 65B of Indian Evidence Act
regarding genuineness of contents of FIR
3. Ex.PW2/C DD No. 3A (receipt of information at 12.02
am in PS about the PCR call)
4. Ex.PW2/D DD No. 8B (receipt of information at 2.50
am in PS about admission of injured at
hospital)
5. Ex.PW3/A Statement of PW3 Indal Singh
(complainant)
6. Ex.PW3/B Seizure memo of baniyan of complainant
7. Ex.PW3/C and Arrest memos of accused Ram Dhiraj @ Ex.PW3/D Panna Lal and Ram Singh @ Sanjay Verma
8. Ex.PW3/E and Personal search memos of accused Ram Ex.PW3/F Dhiraj @ Panna Lal and Ram Singh @ Sanjay Verma
9. Ex.P1 Baniyan of complainant Indal Singh
10. Ex.P2 Cricket bat SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 10 of 36
11. Ex.PW4/A PCR form
12. Ex.PW5/A Seizure memo of the blood samples of the injured persons
13. Ex.PW6/A, MLC Nos. 9058/2016, 9059/2016 and Ex.PW6/B and 9057/2016 (Regarding collection of blood Ex.PW6/C samples of injured person).
14. Ex.PW8/A1 to Photographs of the crime scene A9
15. Ex.PW8/A10 Negatives of the above-mentioned to A18 photographs
16. Ex.PW10/A, MLCs of injured persons Ex.PW10/B and Ex.PW10/C
17. Ex.PW13/A Arrest memo and personal search memo of and accused Ashish Tiwari Ex.PW13/B
18. Ex.PW13/C Seizure memo of the bloodstained clothes and of injured Jayanti and Prem Singh Ex.PW13/D
19. Ex.PW13/E, Seizure memo of earth control, Ex.PW13/F bloodstained earth control and blood in and gauze Ex.PW13/G
20. Ex.PW13/H Seizure memo of cricket bat
21. Ex.P3 and One blue colour bloodstained trouser and Ex.P4 one white baniyan/ vest also having bloodstains
22. Ex.PW16/A Rukka
23. Ex.PW16/B Disclosure statement of accused Ashish Tiwari SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 11 of 36
24. Ex.PW16/C Site plan
25. Ex.PW16/D Disclosure statements of accused Dheeraj and @ Panna and Sanjay Ex.PW16/E 3.3 Though 16 witnesses have been examined by prosecution but the main witnesses of the case are:-
I) PW - 3 Sh. Indel Singh / complainant/ injured, II) PW - 12 Smt. Jayant/ injured / eye-witness, III) PW - 14 Sh. Prem Singh / injured/ eye-witness and IV) PW - 16 SI Amit Kumar / IO of the case.
3.4 PW - 3 Sh. Indel Singh deposed that earlier he was residing at H. No. 165, Ali Ganj, Kotla Mubarakpur, Delhi. On 18.06.2016, he was present in his room No. 7. His brother-in-law Prem Singh was also with him. PW3's wife and son were also present in the room. His wife namely Jayanti Devi was washing utensils outside the room. At about 11:30 PM, on hearing some abuses given by Ashish Tiwari in an intoxicated state to his wife, PW3 asked his wife to come inside the room and he also came back in his room. He waited in the room to avoid confrontation with the drunken person. After some time, his wife went out to pick up the utensils. She was attacked by Ashish Tiwari, she cried. His brother-in-law Prem Singh went out to save PW3's wife. Ashish Tiwari gave a knife blow on his below neck portion. Ashish Tiwari also gave a knife blow on his wife's head. Then Ashish Tiwari said he would SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 12 of 36 finish all today. In the meantime, two more persons came having bat in their hand. Both of those persons were also drunk. They were Ram Singh and Panna. Ram Singh was having bat in his hand, while Panna was not having anything. PW3 was given blow by bat by Ram Singh and he also hit his wife on her head by the said bat. Panna caused beatings to PW3 and his wife by use of fist and leg blows. PW3 raised alarm and their house owner Vinod and Mahesh came upstairs. Seeing them, all the three accused persons ran away from there. He called police on number 100 and police arrived at the spot. PW3, his wife and his brother-in-law were taken to Trauma Center, AIIMS where they were treated. His statement Ex.PW3/A was recorded by the police regarding the incident.
PW3 also saw his MLC Mark X and he identified his photo on it at Portion X. He stated that his brother-in-law Prem Singh had sustained injuries on his thumb and on his shoulder and on his face. His baniyan got stained with blood which was seized by the police vide memo Ex.PW3/B. Police had also seized blouse and saree of his wife. Their blood was also taken in AIIMS Hospital.
PW3 stated that he had not pointed out the place of occurrence to the police. On 12.08.2016, he was taken by police at AIIMS Hospital where his blood sample was taken by the doctor.
All the three accused persons were known to him prior to the incident.
On 18.06.2016, he had also handed-over his bloodstained clothes i.e. baniyan to the police. Accused Ram Dhiraj @ Panna Lal and SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 13 of 36 Ram Singh @ Sanjay Verma were arrested in his presence at police station vide arrest memos Ex.PW3/C and Ex.PW3/D. Their personal search memos Ex.PW3/E and Ex.PW3/F were also prepared.
During his testimony, PW3 identified all the accused persons in the Court. He stated that he did not know real name of Panna and pointed towards accused Ram Dheeraj as Panna.
During his testimony, PW3 identified the case properties i.e. baniyan as Ex.P1 and the cricket bat as Ex.P2.
PW3 was duly cross examined by Ld. Counsel for the accused persons.
3.5 PW - 12 Smt. Jayanti deposed that she along with her family were residing on the 1 st floor at H. No. 165, Ali Ganj, K. M. Pur, New Delhi as tenant. Accused Ashish was also residing there as tenant in room No. 6 on the same floor. Their room number was 7. There were 14 rooms on that floor and there were tenants in all rooms. Wife of accused used to have quarrel with her with regard to cleaning of clothes and utensils and for that reason their relation with accused Ashish and his family was not good.
On 17.06.2016, at about 11:30 PM while she along with her husband and her brother Prem were sitting after taking dinner. After some time when she came out of the room to clean utensils near the door of the room, accused Ashish came there and started abusing her in very filthy language. Accused Ashish was in a drunken state. After hearing the abuses, her husband came of the room and took her inside the room to SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 14 of 36 avoid the accused. They remained seated in the room for about 15/20 minutes. Thereafter, since her utensils were there outside the room, she went there to collect the same, then accused Ashish again came there, pressed her breast, pulled her hair and gave her fist and kick blows. When she raised alarm, her brother Prem Singh rushed to save her. Accused took out a knife which he had concealed under his clothes and assaulted her and her brother. She sustained injuries on her hand. Prem also received injuries on his chin and he also sustained deep injuries on his thumb.
When her brother Prem also raised alarm, her husband who was then sitting in the room also came out. The accused started giving repeated knife blows to her, her brother and her husband. They all sustained knife injuries. During this course, the accused Ram Singh and Panna also came up there.
Thereafter, all the three accused persons gave her beatings. Accused Ram Singh hit her with bat on her head. He also gave beatings to PW12's husband and her brother. Thereafter, they dragged all of them to her room and threatened to kill all of them. Thereafter, her husband informed the police on 100 number. Police officials came at the spot and they called her husband downstairs. When her husband went there and in the presence of police accused Ashish Tiwari brought a brick and hit her husband from his behind on his head. PW12 had seen Ashish Tiwari hitting her husband with the brick as she was standing in the balcony on her room. Thereafter, he ran away from there. However, accused Panna SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 15 of 36 Lal and Ram Singh were present in their respective rooms. Police official took her, her husband and her brother to AIIMS Trauma Center and got them admitted. They were discharged next morning at about 06:00 PM. The said incident was also witnessed by other tenants of the building. She did not know their names. She was not taken again to the hospital after the incident.
On the day of incident, she handed-over her bloodstained clothes which she was wearing at the time of incident.
During her testimony, PW12 identified the accused Ashish, Ram Singh and Panna in the Court. She also identified her wearing clothes i.e. one saree and blouse which she was wearing at the time of incident. She also identified the case property i.e. bat and photographs of the crime scene.
Witness was cross-examined by the Ld. Additional PP as she was unable to tell the exact date on which their blood samples were taken by the doctor.
She admitted that on 12.08.2016 police officials had taken her, her husband and her brother to AIIMS Hospital whereon their blood samples were taken by the doctor.
PW12 was duly cross-examined by the Ld. Defence Counsel.
3.6 PW - 14 Prem Singh deposed that he was residing at Room No. 7, H. No. 165, Ali Ganj, Kotla Mubarakpur, Delhi along with his sister Smt. Jayanti and brother-in-law (jija) namely Indal Singh. Accused SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 16 of 36 Ashish Kumar Tiwari used to reside in the adjoining room No. 6 along with his family consisting of his wife Sarita. PW14's sister used to wash utensils in the Aangan outside the room and due to which the wife of accused Ashish Tiwari namely Smt. Sarita used to quarrel with his sister. Due to this reason they were not having cordial relations with the family of accused Ashish Tiwari.
On 17.06.2016, he was present at his room, at about 11- 11:30 PM while his sister was washing utensils in the Aangan outside their room, then at the same time accused Ashish Tiwari while standing outside his room started hurling filthy abuses to her sister. On hearing the said noise, he and his jija Indal Singh came outside from their room. Even in their presence the accused Ashish Tiwari did not stop and continued to hurl abuses. PW14's Jija asked his sister to come inside the room and then they all came inside their room. Thereafter, his sister said that that some utensils were lying outside and she went to bring the same inside the room. On seeing his sister alone outside the room, accused Ashish gave beatings to his sister. On hearing noise, PW14 came outside their room and he tried to save his sister from the clutches of accused. Then accused Ashish Tiwari attacked upon PW14 with the knife after taking out the knife from his backside. He tried to attack PW14 on his neck with the knife but when PW14 tried to save himself the knife hit him on his face. In the meantime, his Jija also came outside. PW14 received injury on his chin, left shoulder and left hand thumb. When his brother-in-law Indal Singh came to rescue him, accused Ashish Tiwari SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 17 of 36 assaulted his brother-in-law with knife and his brother-in-law received injury on his hand. Accused Ram Singh hit his Jija with a bat on his head. Accused Ram Singh also hit his sister Jayanti with the bat on her head. Accused Panna hit PW14, his sister and his Jija with kicks and fists blows. The accused persons took PW14, his sister and jija in the room while beating them. They raised alarm. In the meantime, the owners of the room came there and Indal Singh made 100 number call. When police came, they called his brother-in-law downstairs and his brother-in-law Indal Singh came outside, accused Ashish Tiwari hit him on his head with a stone. Thereafter, accused Ashish Tiwari and other two accused persons fled away from the spot. Police took him, his brother-in-law and his sister to the Trauma Center where they were medically treated. Police came there and recorded his statement as well as the statement of his brother-in-law and sister at Hospital.
On the next day, they came to the police station and got the FIR registered. Thereafter, they went to their rented room. Police seized his trousers and vest, trousers and vest of his brother-in-law and the clothes of his sister. His clothes were taken into possession by the police vide seizure memo Ex.PW13/D. PW14, his brother-in-law and his sister again went to the hospital for giving blood samples.
During the testimony of PW14, he identified all the accused persons and the clothes worn by him at the time of incident i.e. one blue colour bloodstained trousers and one white baniyan/ vest having blood stains as Ex.P3 and Ex.P4.
SC No. 2681/2016FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 18 of 36 PW14 was duly cross-examined by the Ld. Defence Counsel.
3.7 PW - 16 SI Amit Kumar deposed as per the contents of chargesheet.
During his testimony, PW16 identified all the accused persons in the Court. He identified case property Ex.P1, P2, P3 and P4.
PW16 was duly cross-examined by the Ld. Defence Counsel.
4. EXAMINATION OF ACCUSED UNDER SECTION 313 CrPC 4.1 After conclusion of prosecution evidence, all the accused were examined u/s 313 CrPC.
4.2 Accused Ashish Kumar Tiwari denied all the allegations. He stated that he was a tenant of room No. 6 on the 1 st floor. Co-accused Ram Dheeraj was tenant of Room No. 2 but on 3rd floor. He claimed that he himself had gone to the police station and that he had signed on the papers on the asking of police officers.
He stated that he was doing the work of catering. On the date of incident, he had returned at about 11-11:30 PM. His wife Sarita Tiwari was pregnant for 5-6 months. There was lot of algae on the floor in front of Room No. 5, 6 and 7 and the complainant used to throw beedi butts therein. His wife had to bring water from downstairs as there was no arrangement for water on first floor. His wife told PW Jayanti Devi SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 19 of 36 that due to algae anybody can slip on the floor and Jyanti Devi replied that in such case why don't you get your own house. After such talks repeated between his wife and Jayanti Devi 2-3 times, he talked to Indel Singh and he told him that he will counsel his wife.
On the date of incident when he returned, Jyanti Devi was quarreling with his wife in regard to aforesaid issue. When he reached there, PW Indel Singh and PW Prem Singh raised their voices while abusing him. Then Jyanti pushed his wife. He tried to save his wife. Jyanti Devi tried to attack his wife. Prem Singh slipped due to the slippery floor/algae on the floor. He fell on grill. Then Indal Singh called on number 100. Then accused also called the landlord and he told him to go to police station since Indel Singh had reported the matter to police. Then he went to the police station.
He stated that while he was trying to save his wife, Indel Singh had attacked him with the window of a cooler and he got injured on his eyebrow.
He claimed that neither any bat nor any knife was involved. SI Amit Kumar obtained his signatures on some documents.
He claimed that neither of the co-accused Ram Singh @ Sanjay or Ram Dheeraj @ Panna Lal were present at the time of incident or involved in the incident.
4.3 Accused Ram Dheeraj @ Panna Lal also denied all the allegations. He stated that he was doing the work of waiter. On the date and time of alleged incident, he was not at the spot. He had gone on his SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 20 of 36 work that day. He used to reside at Room No. 2 on the 3 rd floor of the H. No. 165, Ali Ganj, Kotla Mubarakpur, Delhi. He returned at about 1:30 AM and slept at his house. His wife in the morning told him that some quarrel had happened downstairs in the previous night. Since he knew Ashish Tiwari so he went to inquire about him from the PS but they did not tell him anything. They said Ashish Tiwari was not in the PS. When he went again with some person, he got to know that Ashish is in the PS near Moolchand Light. When he met him therein, he told him that he is being arrested. He told him that he should sent his kids, etc. to his home.
Later on after about two months, the landlord Vinod came to him and asked him to go to PS since he was required for interrogation. When he reached in the PS, he was made to sit therein. He was tortured and forced to call the co-accused Ram Singh @ Sanjay Verma since he knew him as they belonged to same village and used to work together. Then co-accused Ram Singh @ Sanjay also came in the PS. They were made to sign the documents by the police. They were told that they were being called for interrogation only but they were not released by the police and subsequently produced before the Court. 4.4 Accused Ram Singh @ Sanjay Verma also denied all the allegations. He stated that he was not present at said place and time during the alleged incident. He was doing work of waiter with Manoj Thekedar, who used to send him at different places as per requirement. The landlord of co-accused Panna Lal took him to PS then Panna Lal called him on phone from PS. He was told that he was being called in SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 21 of 36 PS. When he reached there, police official Amit told him that he shall wait for some time as some interrogation has to be done. After some time, he was sent for medical examination by the police. When he asked the police that he was called only for some time, he was told that he will be sent to the Court now. He came to know that he was called in the PS after three months of the incident. He know the other co-accused as Panna was doing work of waiter and Ashish was doing work of manager in catering. Again said, Ashish was not officially a manager but managed the work of catering. He claimed that however he was not involved in the case.
5. DEFENCE EVIDENCE 5.1 One defence witness was examined on behalf of accused Ram Singh and Ram Dheeraj.
5.2 DW1 Manoj Bharti deposed that in the year 2016 accused Ram Singh and Ram Dheeraj used to work with him on daily wages. They used to go for the work of waiter in the marriage functions etc. in the evening around 05.00 pm and used to return around midnight or 1.00 am. On 17.06.2016 he, Ram Singh and Ram Dheeraj were working together. He did not remember the place where they were working on that day. However, he deposed that on that day said accused were working with him till about 12.00 midnight or 1.00 am and thereafter they left for their houses. He did not know whatever happened at their house but they all were together till about 12.00 midnight or 1.00 am.
SC No. 2681/2016FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 22 of 36 DW1 was duly cross examined by Ld. Addl. PP for State.
6. ARGUMENTS 6.1 Ld. Additional PP for the State has submitted that complainant as well as eye witnesses have categorically deposed against the accused persons during their testimony. The accused persons were named in the FIR and were identified by the witnesses during trial also. The incident was reported promptly and further the testimonies of complainant/eye witnesses are supported by circumstantial evidence and even the medical/Forensic evidence. Accordingly, it is submitted that case of prosecution has been duly proved against all the accused persons. 6.2 On the other hand, Ld. Counsel for accused has argued that the FIR against accused is motivated and admittedly there was enmity between the complainant party and the family of accused Ashish. It is argued that none of the alleged eye witnesses is a credible witness. It is submitted that in fact the complainant party was the aggressor and it has come on record that accused Ashish himself suffered injuries. It is argued that the other two accused were not even present at the time of incident and they have been named just because they were close associates of main accused Ashish. It is argued that even in the MLC the nature of injury is simple and no opinion has been given about the nature of weapon. It is submitted that main weapon of offence i.e. the alleged knife was not recovered at the instance of any of the accused or even otherwise. It is argued that as far as the FSL report is concerned, same SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 23 of 36 has not been proved by examining the concerned FSL expert and cannot be read in evidence against any accused. It is submitted that considering the aforesaid discrepancies in the case of prosecution, all the accused are entitled to be acquitted.
7. POINTS FOR DETERMINATION 7.1 I have considered the arguments of the parties and have perused the record.
7.2 The relevant provisions applicable in present case are reproduced herewith:-
Section 307 IPC provides - attempt to murder - "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 murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Section 34 IPC provides - "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
7.3 Thus, after considering the facts of the case and the arguments of the parties, following points for determination arise: -SC No. 2681/2016
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1. Whether the testimonies of eye witnesses are credible ?
2. Whether all or any of the accused is liable to be convicted for the offence U/s 307/34 IPC ?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 There are three eye witnesses of the incident i.e., PW-3 Indel Singh, PW-12 Jayanti Devi and PW-14 Prem Singh. All of them have categorically deposed against each of the accused. They have described the manner of the incident i.e. how the incident unfolded, what was the role of each accused in the incident, how and by what weapon they were attacked upon. Their testimonies are consistent in material particulars and are supported by the following circumstantial facts:-
8.1(i) The incident occurred at around 11:30 PM and the matter was immediately reported to the Police by complainant at 12:01 AM.
Said call to police control room has been proved by the police official attending the call i.e. PW4 W/Ct. Suman and even record of the call has been proved as Ex. PW4/A. As per PW4 the fact of stabbing of complainant and his wife with a knife by a drunken man was mentioned in the call and urgent request for police help was made. The testimony of PW4 is unrebutted.
8.1(ii) The FIR of the case was registered promptly and PW-2 HC Manoj Kumar has proved that same was registered at 06:00 AM. Considering the injuries received by the complainant and his family SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 25 of 36 members, time taken to travel to hospital, arrival of police at spot and then to hospital and verification of facts by IO, there is no significant delay in registration of the FIR. Moreover, the testimony of PW2 is also unrebutted.
8.1(iii) The FIR mentions the incident in detail naming all the accused and the details of complete incident. Thus, it is not the case that FIR was in brief and the details of incident were obtained subsequently though examination of witnesses. Hence, there was little or rather no time for any manipulation/improvement of facts by complainant. 8.1(iv) All the injured received medical treatment promptly and as per their MLCs Ex.PW10/A, Ex.PW10/B & Ex.CW10/C all of them were examined on 18.06.2016 at 12:40, 12:42, 12:44 AM. All of them had history of assault. Further, as per his MLC the complainant Indel Singh had received following injuries :
a. Laceration Scalp 3x1 cm.
b. Laceration near right Rt clavicular region 2x1 cm.
PW Prem Singh had received following injuries as per his MLC :
a. Laceration Lt shoulder 7x1 cm and 3x1 cm.
b. Laceration Lt thumb 4x2 cm.
c. Laceration lower jaw 5x3 cm.
PW Jayanti had received following injuries as per her MLC:
a. Laceration over scalp.
b. Laceration over forehead.
c. Laceration Rt hand 2x1 cm.
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d. Laceration Lt. Palm 2x2 cm.
e. Laceration Lt Palm 2x1 cm.
Though the concerned doctor was not examined by the prosecution, however, the concerned record clerk i.e. PW10 Bunesh Kumar Sharma has proved the handwriting of said doctor on the MLCs and has deposed that the said doctor has left the hospital and his present whereabouts are not available in the hospital. Thus, MLCs have been proved u/s 32 Evidence Act r/w section 47 Evidence Act. Moreover, testimony of said record clerk is unrebutted.
Thus, there is overwhelming medical evidence that all of the eye witnesses received multiple injuries at the relevant time. None of the injuries appear to be self-inflicted and are not any minor injuries which could have been caused by the opposite party while acting in self defence only.
8.1(v) The photographs of the crime scene have been proved by PW-8 i.e., the Crime Team Photographer as Ex.PW8/A1 to Ex.PW8/A9. The said photographs clearly show blood spilled over at the entry of the house of complainant and even inside the house of the complainant thereby corroborating that an incident resulting in bleeding had occurred at the given place at the relevant time. The testimony of PW8 is unrebutted.
8.1(vi) The blood stained clothes of the complainant and eye witnesses were seized by the Police vide Ex.PW-3/B, PW13/C & Ex.PW13/D. All of these clothes were seized on 18.06.2016 i.e., soon SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 27 of 36 after the incident. Said clothes were produced during the trial and were exhibited by the eye witnesses and the IO.
8.1(vii) One bat was recovered at the instance of accused Ashish and exhibits were lifted from the crime scene. As per the report of the FSL expert Mark PW15/A, blood was detected on the Exhibits lifted from the crime scene, the clothes of injured Jayanti, Indel and Prem Singh. Blood was even detected on the Bat. In the serological examination, the FSL expert even found that said blood was human blood. Though, the concerned FSL expert was not examined by the Prosecution and PW-15 did not identify the signatures of the concerned FSL expert, however, still the report can be read in evidence by virtue of Section 293 CrPC. As per the report Mark PW15/A, same was prepared by Junior Forensic/Chemical Examiner (Biology), Regional FSL, Delhi. As per Section 293 CrPC, any document purporting to be a report under the hand of a Government Scientific Expert (including any Chemical Examiner or Assistant Chemical Examiner) may be used as evidence in trial without examining the author of the report. It has been held by Hon'ble High Court of Delhi in Sudhir Engineering vs Nitco Roadways Ltd 1995 RLR 286 that labelling a document as mark or exhibit is only for reference and Court has to see whether the document has been proved or not as per relevant laws.
Accordingly, the testimonies of the complainant & eye witnesses are strongly corroborated by the circumstantial evidence. 8.2 The Counsel for accused has argued that accused Ashish SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 28 of 36 was himself the victim and the complainant & his family were the aggressors. It is submitted that PW-16 i.e., IO had himself deposed that accused Ashish himself came to the Police Station and disclosed regarding the incident and he was examined medically as he was also in injured condition. I have considered said submission. However, no evidence has come on record throughout the trial that accused Ashish received any serious injury during the incident. Rather the MLC of said accused filed with chargesheet shows only "abrasion over rt upper eyebrow". Moreover, as mentioned above, the incident was promptly reported by the complainant but on the other hand none of the accused or anybody else on their behalf made any call to police for any help. Further, it is to be noted that the defence of accused Ashish has been inconsistent in this regard. During the cross examination of PW-3 Indel Singh, a defence was put to him that it was PW-3 who had given knife blow to accused Ashish Tiwari due to which he (Ashish) sustained injuries. Another defence was put to PW-3 that when his wife and his brother-in-law Prem Singh tried to pacify him and persuade him not to attack Ashish, during this course, PW-3 sustained injuries. Thus, a defence was put up that PW-3 was the aggressor with the knife and that the injuries were received by him during his restraint by his own family. However, surprisingly during cross examination of PW-12 Jayanti, defence was put to her that her brother i.e., Prem Singh took out the knife from the house and attacked accused Ashish and injured him. Thus, the defence tried to weave another version wherein the Prem Singh was SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 29 of 36 projected as the aggressor with the knife (and not Indel Singh). It was further put to PW-12 that when her brother came out with knife, she and her husband (Indel Singh) tried to stop him and as a result of same, she & her husband (Indel Singh) received injuries. Thus, altogether a different sequence of events was put to PW-12. Moreover, another defence was put to PW-12 i.e. initially accused Ashish was assaulted by her husband and her brother and thereafter, he assaulted them. Therefore, a defence having semblance to exercise of right of private defence was put to the witness. Further, even in cross examination of PW-14 Prem Singh, defence was put to him that he brought the knife and all the injured received injuries because Indel Singh and Jayanti tried to catch hold of him and in the process, all of them received injuries. It is apparent that the defence of accused is not only inconsistent but even the kind & the extent of injuries received by the complainant & the eye witnesses cannot be believed to have happened in such manner. If a family member restrains another family member from attacking a third person, such family member may receive a minor injury but cannot receive so many injuries by any stretch of imagination. Interestingly, in his examination U/s 313 CrPC, accused Ashish did not mention about any of such defences and rather stated that on the date of incident when he returned, Jayanti Devi was quarreling with his wife in regard to aforesaid issue of Algae in front of their rooms and the complainant throwing bidi butts therein. As per him when he reached there, PW Indel Singh and PW Prem Singh raised their voices while abusing him. Then SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 30 of 36 Jayanti pushed his wife and he tried to save his wife. Jyanti Devi tried to attack on his wife. Prem Singh slipped due to the slippery floor/ algae on the floor and fell on grill. Then Indal Singh called on number 100. However, none of said defences was put to any of the injured or even the IO. Rather, the presence of wife of accused is neither deposed by any of the eye witnesses nor said presence or attack on the wife has been put to any of the eye witnesses. Accordingly, Court is convinced that the defence of accused Ashish is bogus.
8.3 As far as accused Ram Singh @ Sanjay Verma is concerned, Ld. Counsel has submitted that said accused was not even present at the spot. It is submitted that accused has taken plea of alibi in his examination U/s 313 CrPC and has even examined one defence witness regarding the same. It is submitted that accused Ram Singh @ Sanjay Verma has been implicated in the case only because he was a known person of the main accused Ashish. I have considered said submission. Admittedly, there was no previous dispute of any nature whatsoever between said accused and the complainant and injured. Thus, there was no motive with the complainant/injured persons to name said accused in the case. Further, the name of accused has been mentioned in the FIR itself which was registered within a short duration of incident and there was scant for rather no time for manipulation of facts by the complainant like adding the name of an accused in the incident. Further, it is to be noted that during cross examination of PW-12 Jayanti, it was specifically put to her that accused Sanjay had been implicated in the case since he SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 31 of 36 tried to help Ashish when her husband & her brother were beating Ashish. Therefore, the specific presence of accused Sanjay at the spot during the incident has been admitted in the cross examination of PW-12 herself. Moreover, as discussed in succeeding para the defence witness regarding plea of alibi is not reliable.
8.4 Ld. Counsel for accused has further argued that Ram Dheeraj @ Panna Lal was also not present at the spot and he has also led defence evidence regarding his plea of alibi. I have considered said submissions. As mentioned above, even the accused Ram Dheeraj @ Panna Lal has been named in the FIR, with his specific role in the incident. Moreover, PW-9 Vinod Kumar who was the landlord of not only the complainant but also of the accused persons has been examined by the prosecution regarding the presence of accused persons at the spot. Though, he is not an eye witness to the incident per se but he has deposed that he arrived at the spot on hearing the noise of quarrel. He has deposed that both accused Ashish & Ram Dheeraj were his tenants and when reached upstairs on hearing the noise of quarrel, he saw blood in front of room no. 6 & 7 of the first floor. He also deposed that while complainant was making call to the police both of accused ran away from there. Though, initially PW9 deposed that he did not saw any other person with Ashish at that time but during his cross examination by Ld. Addl. PP, he admitted that at that time, not only the complainant and injured but even accused Dheeraj @ Panna Lal was also present at that time. During his cross examination by defence, even no suggestion was SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 32 of 36 put to him that accused Ram Dheeraj @ Panna Lal was not present at the spot at the time of his arrival. Moreover, PW9 was the landlord of both parties and there was no reason for him to side with any of the party to the incident. Since PW-9 has deposed that he reached the spot on hearing the noise and has also deposed that he tried to pacify the quarrel, therefore, it is proved that he arrived at the spot soon after the incident. Thus, as per PW9's testimony accused Ram Dheeraj @ Panna Lal was present at the spot around 12.00 midnight (at the time of PCR call by the complainant). However, accused Panna Lal has taken the defence that he did not even return to his house about 01:30 AM and slept at his house and only in the morning, he got to know about the incident. Considering the testimonies of complainant and eye witnesses and the testimony of PW9, the plea of alibi of Panna Lal appears bogus. Though, defence has relied upon DW-1 Manoj Bharti also in regard to plea of alibi of accused Ram Singh @ Sanjay and Ram Dheeraj @ Panna Lal, however, the testimony of said witness is far from believable. He claimed that he had gone on some marriage function as a waiter with accused Ram Singh and Ram Dheeraj but he failed to tell about the marriage function or even the name of the other five persons who allegedly worked with them at the alleged marriage function. Since he was a known person of said accused persons, therefore, his oral testimony without any other proof does not carry much weight. Even otherwise, throughout the prosecution evidence, no specific plea of alibi was put to any of the prosecution witness that accused Ram Dheeraj & accused Ram Singh were present at SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 33 of 36 any marriage function as waiter at the time of incident and only a generic plea was put that they were not present at the spot. Rather, even said generic plea is not consistent regarding accused Sanjay as observed earlier.
8.5 Accordingly, it stands established that all of the three accused were present at the spot and participated in the assault as narrated by the complainant & eye witnesses. Now the next question is whether all of them are liable to be convicted for the offence U/s 307/34 IPC. As per complainant, it was accused Ashish who attacked with a knife on Prem Singh, him and his wife. In the meantime, the accused Ram Singh & Ram Dheeraj also arrived. Ram Singh was having a Cricket Bat in his hand and accused Panna was bare hand. They both joined in the assault. Accused Panna gave beatings to them by use of fist & leg blows whereas Ram Singh caused beatings to him & his wife using the cricket Bat. Thus, common intention of accused persons is writ large over their actions. Nonetheless, the main weapon used in the incident was a knife. However, said knife was never recovered during investigation. Moreover, in the MLCs of the injured the opinion regarding weapon was either not obtained by IO or not given by the Doctor and it is only mentioned N/A in row meant for describing the kind of weapon. Further, none of injuries was stab or incised wound. Thus, it does not appear the knife used was a sharp/deadly knife. Further, the nature of injuries in all MLCs is simple. Hence, in the given circumstances Court is of the view that prosecution has been unable to SC No. 2681/2016 FIR No. 456/2016 State v. Ashish Kumar Tiwari & Ors Page No. 34 of 36 prove the offence u/s 307 IPC. Nonetheless, number of lacerations were found on the bodies of injured. Thus, in the given circumstances the injuries correspond to a blunt weapon i.e. a blunt knife and/or the cricket bat. However, the use of a knife in the incident was not disputed during the cross examination of eye witnesses. Rather the use of knife was attributed on the complainant persons and said defence has been found to be bogus. Thus, the indiscriminate attack on the injured persons with even a blunt knife and a cricket bat with blows aimed at face, forehead, scalp and neck-shoulder region bring the acts of the accused within the mischief of section 308 IPC. The three injuries on the palm of PW Jayanti show that same are defensive injuries and the intended blows could have landed over other vital body parts. It is to be noted that even a cricket bat can be deadly when blows are aimed on the vital parts of the victim. Thus, such indiscriminate attack on injured on their head and face with a blunt knife and a cricket bat was imbued with a knowledge that such blows were likely to cause death. Thus, in the given facts and circumstances, all of the accused are liable for the offence u/s 308 IPC r/w 34 IPC. Though accused persons have not been charged with said offence, however, said offence being a minor and cognate offence of 307 IPC, the accused can be convicted for the same by operation of S. 222 Cr.P.C.
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9. CONCLUSION 9.1 In view of above said discussion, all three accused namely Ashish Kumar Tiwari, Ram Singh @ Sanjay Verma and Ram Dheeraj @ Panna Lal are convicted for the offence u/s 308/34 IPC.
(Announced in the Open Court SACHIN Digitally signed by SACHIN SANGWAN on 12th December 2023) SANGWAN Date: 2023.12.12 15:11:00 +0530 (SACHIN SANGWAN) Additional Sessions Judge, (FTC)-01, South-East District, Saket Courts, New Delhi/12.12.2023 SC No. 2681/2016
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