Delhi District Court
State vs . Atul Sharma & Ors. on 29 August, 2022
IN THE COURT OF MS. POORVA MEHRA,
METROPOLITAN MAGISTRATE-04, DISTRICT SOUTH EAST DISTT.
SAKET COURTS, DELHI
State Vs. Atul Sharma & Ors.
FIR No. 201/2009
PS. C.R. Park
U/s. 323/160 IPC
JUDGMENT
1) Case ID No. : 90191/16
2) The date of commission of offence : 03.08.2009
3) The name & parentage of accused : (1) Atul Sharma
S/o. Late Sh. Deep
Chand,
(2) Narendra Vashist
S/o. Late Sh. Deep
Chand,
(3) Purushottam Vashist
S/o. Late Sh. Deep
Chand
(4) Neelam Sharma
W/o. Atul Sharma
4) Offence complained of : U/s. 323/160 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 29.08.2022
Date of Institution : 13.04.2012
Judgment reserved on : 23.08.2022
Judgment announced on : 29.08.2022
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BRIEF STATEMENT OF REASONS FOR DECISION:
1. The FIR No. 201/09 was registered on the basis of statement dated 04.08.2009 made by complainant HC Nahar Singh to the effect that on 03.08.2009 at about 10:20 pm within the jurisdiction of C.R. Park all the accused persons voluntarily were fighting with each other and were abusing in public place and were disturbing public peace and thus thereby all accused persons had committed the offence punishable u/s 323/160 IPC.
2. Upon completion of investigation, charge-sheet for the offence punishable U/s 323/160 IPC was filed on behalf of the IO and all the accused persons were consequently summoned. Perusal of file reveals that charge for commission of offence U/s. 323/160 IPC was framed against all the accused persons by the Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. In order to prove the allegations against the accused, the prosecution has examined Six witnesses.
4. PW-1 is ASI Nahar Singh is complainant. He deposed that on 03.08.2009, he was on emergency duty at PS C.R. Park and at about 10:00 p.m. DD no. 48B was received in the Police Station. He alongwith Ct. Prem Singh reached at the spot i.e. E-168, G.K-II, New Delhi and they found that 3-4 FIR No. 201/09 State Vs Atul Sharma & Ors. 2 of 9 persons were quarreling in front of E-168, G.K-II, New Delhi. With the help of Ct. Prem Singh he stopped them from quarreling. He sent Ct. Prem Singh alongwith 3-4 accused persons for their medical examination. He correctly identified all the accused persons. Ct. Prem Singh returned at the spot after medical examination of all the accused persons. He prepared rukka which is Ex. PW-1/A and handed over the same to Ct. Prem Singh for registration of the present FIR. After registration of the present FIR, further investigation was marked to SI Satbir Singh. SI Satbir Singh alongwith Lady Ct. Neetu came at the spot. He handed over all the accused persons to SI Satbir Singh. All the accused persons were arrested vide arrest memos Ex. PW-1/B to Ex. PW-1/D.
5. PW-2 is HC Prem Singh, who deposed that he joined the investigation with HC Nahar Singh and went to the spot of incident. He correctly identified all the accused persons in the Court.
6. PW-3 is W/HC Neetu. She deposed that on 04.08.2009, she received a call from DO and he disclosed her that she had to join the investigation of the case at E-168, GK-II, New Delhi. She alongwith Ct. Prem Singh and SI Satbri Singh went to the place of incident. She further deposed that at the place of incident she met all the accused persons namely Neelam Sharma, Purushottam Vashisht, Narender and Atul. Accused Neelam Sharma was arrested by her vide arrest memo Ex. PW-3/A. IO recorded her statement u/s 161 Cr.P.C.
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7. PW-4 is Sh. Rajender Singh, He is a record clerk in AIIMS Trauma Center, New Delhi for last 12 years. He deposed that he had seen the original MLC No. 174852 of injured Narender Vashisht, MLC No. 174853 of injured Neelam Sharma, MLC No. 174857 of injured Atul Sharma and MLC No. 174854 of injured Purshotam, all MLCs dated 03.08.2009 and stated that same were prepared by Dr. Rajiv Kumar and the opinion regarding the nature of injury was also given by Dr. Rajiv Kumar which are Ex. PW-4/A to Ex. PW- 4/D. He further deposed that he had brought the attested copy of joining and relieving register of Dr. Rajiv Kumar and same is Ex. PW-4/E. He identified the signature of Dr. Rajiv Kumar as he had seen him signing and writing during the course of his duties.
8. PW-5 is HC Kailash Chand. He deposed that on 03/04.08.2009, at about 04:20 a.m., Ct. Prem came with the rukka and he recorded the same in DD No. 26-A and made the endorsement on the same which is Ex. PW-5/A. He registered the FIR. He had brought the original FIR register, the copy of the same is Ex. PW-5/B(OSR). After registration of FIR, he handed over the original copy of tehrir and copy of FIR to ASI Satbir.
9. PW-6 is Inspector Satbir Singh. He is the Investigating Officer. He deposed that on 04.08.2009, Ct. Prem handed over to him original rukka and copy of FIR for further investigation of the case. Thereafter, he alongwith FIR No. 201/09 State Vs Atul Sharma & Ors. 4 of 9 W/Ct. Neetu and Ct. Prem went to the place of incident i.e. E-168, G.K.-II, New Delhi where he met HC Nahar Singh and all the four accused persons. He interrogated them. He further deposed that he prepared the site plan at the instance of HC Nahar Singh which is Ex. PW-6/A. After interrogation, he arrested all the accused persons. Thereafter, he released all the accused persons after getting the bail bonds. He collected the opinion on the MLCs and placed the same on record and prepared the charge-sheet of the present case and filed it before the Hon'ble Court.
10. Upon completion of prosecution evidence statements of the accused persons under section 313 of Cr.P.C. were recorded on dated 07.06.2022 and the evidences which surfaced against them during the trial were put to them. Accused persons denied it's correctness and pleaded innocence.
11. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused persons and have also perused the record.
12. From the perusal of the record, it is apparent that prosecution is relying mainly on testimony of complainant HC Nahar Singh, who has reiterated the contents of the FIR. He has been supported by Ct. Prem Singh, HC Kailash Chand and W/Ct. Neetu. All the above stated prosecution witnesses have supported each other in corroborating the version as stated by the complainant. However, this court is duty bound to look into the evidence FIR No. 201/09 State Vs Atul Sharma & Ors. 5 of 9 more minutely.
13. Upon doing so, it comes to the fore that during the whole course of investigation as proved by IO SI Satbir Singh, IO has failed to join in independent witness to corroborate its version. Since, investigation itself suffers from multiple deficiencies, non-joining of an independent witness raises reasonable doubts in the mind of this court qua the veracity of allegations.
14. Case record makes it evident that site plan has not been made in the presence of any independent witness. The time has been mentioned wrong. Moreover, all the above stated PWs are police officials and no independent complainant, as observed above, has joined as a witness to the prosecution story. Next, allegations against accused persons are that of affray and disturbing public peace and tranquility. Further, IO has not brought on record, even an iota of evidence to prove the occurrence itself. Ld. Defence Counsel has questioned the existence of the alleged occurrence as he brings to the notice of this court that no eyewitness has been quoted by the IO as supporting the prosecution case.
15. In the reasonable prudence of this court, if public peace was being disturbed, IO should have found atleast one eyewitness to the said incidet. IO has failed to do even that. Further, it is that the name of persons accompanying accused persons as well as time of admission to the hospital has not been FIR No. 201/09 State Vs Atul Sharma & Ors. 6 of 9 mentioned in the Medico Legal Certificate as found on the case record. Furthermore, facts as apparent from the FIR show that it was a case of free fight and IO himself could not ascertain the aggressor. Role of the accused persons itself is doubtful and ambiguous.
In the said context, this court finds it pertinent to seek support from the judgment in case titled as IDK Rastogi Vs. State decided on 09.04.2021 wherein it is held as follows:
"it is pertinent to point out that the occurrence has taken place in the house of the petitioners, and thus, it was not in a public place. The members, who constituted the B Party, have gone to the house of the petitioners and have attacked them, and they were found to be the aggressors. It to be so, there was no fighting between the parties, since the fighting would mean and connote a contester's struggle between two or more persons against one another. Thirdly, there was nothing available to indicate that there was disturbance of public peace, and thus, in the instant case, all the three ingredients which were necessary to constitute affray, were absent. In view of the same, it cannot be stated that the chargesheet filed under Sec. 160 of IPC alleging that there was a fight between A and B Party was correct.
Yet another illegality and infirmity is also noticed. A mandatory duty is cast on the Investigating Officer to enquire into both the parties and find out who were the aggressors, and file a chargesheet against them. In the instant case, the FIR No. 201/09 State Vs Atul Sharma & Ors. 7 of 9 police agency finding it difficult, has adopted a shortcut method by charging both the petitioners as A Party and the other accused as B Party for an offence of affray under Sec. 160 of IPC. No doubt, a prejudice was caused to the parties by the said shortcircuit procedure. By that, the petitioners who were not the aggressors and not liable to be charged at all, were placed in such a position to face the trial before the lower Court."
16. In Selvaraj & Anr. Vs. The State, represented by the Sub Inspector of Police, Palladam Police Station, Palladam, Coimbatore District, 2005 (1) MWN (Cr.) 107, it was inter alia held as under:
"5. It would be more appropriate and advantageous to reproduce Sec. 159 of IPC, which defines "affray"."
"Section 159: When two or more persons by fighting in a public place, disturb the public peace, they are said to "commit an affray"."
A reading of the said provision would clearly indicate that in order to bring home the guilt of the accused for an offence of affray, the prosecution should satisfy the three essentials. Firstly, fighting must be between two or more persons. Secondly, fighting must take place in a public place, and thirdly, such fighting must also result in disturbance of public peace. In the absence of even one of these ingredients, it cannot be stated that there was either an affray or the accused facing the trial, should be held responsible."
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17. In light of the above discussion, it can be observed that prosecution case suffers from the foundational discrepancies wherein occurence itself is not clear. In this case, prosecution evidence suffers from serious gaps in the chain of facts and circumstances. Consequently, this Court is bound to grant benefit of doubt to the accused persons.
18. Thus, Accused (1) Atul Sharma, (2) Narendra Vashist, (3) Purushottam Vashist and (4) Neelam Sharma are acquitted of the offences punishable under Section 323/160 IPC.
19. At the request of accused persons, bail bonds already furnished on record sustain for the purposes of Section 437-A Cr.PC.
20. File be consigned to the record room after due compliance.
Announced in the open (Poorva Mehra)
Court on 29.08.2022 Metropolitan Magistrate-04
SED/Saket District Courts
New Delhi
It is certified that this judgment contains 09 pages and each page bears my signatures.
(Poorva Mehra)
Metropolitan Magistrate-04
SED/Saket District Courts
New Delhi
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