Delhi District Court
Fir No: 684/06 Ps: Dabri State vs . Pradeep Kumar on 17 September, 2014
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IN THE COURT OF SUDHIR KUMAR SIROHI
METROPOLITAN MAGISTRATE02 DWARKA COURT, NEW DELHI.
FIR NO: 684/06
PS: Dabri
U/s : 160 IPC
State
Vs.
1. Sh. Pradeep Kumar, S/o Sh. Ram Chander,
R/o RZ156, Shiv Block Raghu Nagar, N. D.
2. Sh. Shiv Kumar, S/o Sh. Ram Kishore Vijay,
R/o RZ160 Shiv Block, Raghu Nagar, N. D.
3. Sh. Charanjit, S/o Sh. Man Phool,
R/o RZ224 A, Shiv Block Raghu Nagar, N. D.
4. Sh. Shiv Kumar, S/o Sh. Vasu Dev Lal,
R/o C3/69, Janakpuri, N. D.
.......... Accused persons
1. Sl. No. of the case. 246/2/14
2. The date of offence 07.07.2006
3. The name of the complainant State
4. The name of the accused 1. Sh. Pradeep Kumar, S/o Sh. Ram
Chander, R/o RZ156, Shiv Block
Raghu Nagar, N. D.
2. Sh. Shiv Kumar, S/o Sh. Ram
Kishore Vijay,R/o RZ160 Shiv Block,
Raghu Nagar, N. D.
3. Sh. Charanjit, S/o Sh. Man Phool,
R/o RZ224 A, Shiv Block Raghu
FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar
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Nagar, N. D.
4. Sh. Shiv Kumar, S/o Sh. Vasu Dev
Lal,R/o C3/69, Janakpuri, N. D.
5. The offence complained U/S 160 IPC
6. The plea of the accused Pleaded not guilty
7. The date on which the order 05.07.2014
was reserved
8. The date of order 17.09.2014
9 . The final order Acquittal
JUDGMENT:
Present Ld. APP for the state.
All accused namely Mr. Pradeep Kumar, Mr. Shiv Kumar son of Sh. Ram Kishore, Mr. Charanjit and Mr. Shiv Kumar son of Sh. Vasudev Lal with Ld. Defence Counsel.
1. The case of the prosecution is that on 07.07.2006 at about 8.30 pm at gali Raghu Nagar within the jurisdiction of PS Dabri Pradeep Kumar, Mr. Shiv Kumar son of Sh.Ram Kishore, Mr. Charanjit and Mr. Shiv Kumar son of Sh. Vasudev Lal ( hereinafter called accused persons) committed affray by quarreling at public place and thereby accused persons were booked under Section 160 IPC.
2. On appearance of the accused copies were supplied to them. Notice for committing offence punishable under sections 160 IPC was framed against them, to which all accused pleaded not guilty and claimed trial.
FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 3 of 8
3. To prove its case the prosecution has examined three witnesses. Prosecution witnesses correctly identified accused persons in the court.
4. Statement of the accused persons was recorded under section 313Cr.P.C. and all the incriminating circumstances appearing in evidence were put to the accused persons, to which all accused denied all the incriminating circumstances and preferred to lead evidence in their defence. DW1 ASI Jagat Singh appeared as sole defence witness.
5. PROSECUTION EVIDENCE:
PW1 HC Devender Kumar Duty Officer proved FIR ( Ex . PW1/A) on the basis of rukka.
PW2 ASI Hari Kishan depsoed that on 07.07.2006 he was posted at PS Dabri as Head Constable and on that day on receipt of DD no. 40A he along with Ct. Naresh Kumar went to spot i.e. RZB4, Raghu Nagar, Dabri where he saw lot of people gathered on the spot and all accused persons were quarrellings with each other and disturbing the passerby and he tried to pacify them but all in vain. PW2 further deposed that he prepared tehrir and prepared site plan Ex. PW2/B. PW2 further deposed that he arrested all accused persons and released them on police bail. During cross examination PW2 submitted that he received DD no. 40A at 8.35/ 8.40 pm from Duty Officer and distance between spot and police FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 4 of 8 station is 11.5 farlang. PW2 further deposed that all the shops were lying closed as shown in site plan when he reached spot. There were 2025 persons at the place of incident and he did not make any one of them witness and he asked for cause of quarrel from 67 persons but they did not disclose their names and addresses. PW2 also affirmed suggestion that DD entry disclosed was regarding threat and not regarding quarrel in locality.
PW3 Ct. Naresh deposed that on 07.07.2006 he was posted at PS Dabri as Constable and after that he deposed in line of PW2. During cross examination he submitted that all documents were prepared by IO on the spot and IO did not investigate public persons about incident and IO has not investigated from neighbour of place of incident. PW3 also affirmed the suggest that it was residential area and there were shop on the spot.
6. Defence Evidence: Accused persons produced one witness in their defence i.e. DW1 ASI Jagat Singh who stated that record to PCR call has been destroyed for the period of incident.
7. ARGUMENTS:
Ld. APP for the state submitted that prosecution has been proved by coherent deposition of prosecution witnesses that all accused persons were breaching peace in society and it has been deposed by police officials, that accused persons were quarreling and were disturbing peace, therefore, prays for FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 5 of 8 conviction of accused persons. Ld. Defence Counsel for accused persons submitted that:
a) no public person is joined by the IO and there is contradiction in deposition of PW2 and PW3. As PW2 has stated that he asked many public persons to join investigation while PW3 stated that IO did not ask public persons to join investigation.
b) Ld. Defence Counsel for accused persons has submitted that DD entry no.
40A is regarding the threat to a person and DD entry is not regarding quarrel. Ld. Defence Counsel for accused Shiv Kumar son of Sh. Vasudev has further submitted that accused Shiv Kumar was calling police officials when other accused persons entered into his shop and left the shop after threatening him, therefore, PCR call was made and all accused persons have been falsely implicated by police officials.
Now I am dealing with contentions raised by Ld. Defence Counsel one by one: Contention A: Admittedly, no independent witness is made by prosecution In, "Balraj Singh Vs. State of Punjab" the Hon'ble Punjab & Harayana High Court as well as in Md. Altaf Vs. State of NCT, dated 30.11.07 the Hon'ble Delhi High Court held that "in case, independent witness was available but not joined by the investigating officer the story is not to be ignored. Question is why police officials FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 6 of 8 have deposed against the appellants/accused when he had no enmity with the police officials. In case independent witness is not joined then evidence on file is to be scrutinized with great caution and mere nonjoining of independent witness is not fatal but in the case in hand PW2 has stated that he asked 67 persons to join investigation but they did not join investigation while PW3 stated that IO did not ask anyone to join investigation. Hence, there is contradiction in deposition of PW2 and PW3 regarding role of public witness in this matter as PW2 has stated that 20/25 people were there on spot but he did not make any of them witness for those reason best known to him, hence, this contention of Ld. Defence Counsel is having merit and can not be ignored. Contention B: DD entry no. 40 A by accused Shiv Kumar son of Sh. Vasudev is that at RZB4 Raghu Nagar two persons have left giving him threat. Present case started with DD no. 40 A and same is regarding threat given to Shiv Kumar and accused persons have left the spot. Then how is it possible that accused were found at spot when accused persons have left the spot after giving threats to one of accused Shiv Kumar son of Sh. Vasudev. Hence, this contention of Ld. Defence Counsel is having merit and can not be ignored.
8. Discussion: Prosecution has not made any public witness in this matter, moreover, as per deposition of PW2 and PW3 it was residential area but no neighbour has FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 7 of 8 been made witness in this matter. No reason for nonjoining any neighbour in this matter is given by prosecution or by IO, moreover, DD entry on which whole machinery started moving is regarding threat and not regarding fighting. No investigation has been carried out by IO in this matter by whose mobile phone matter was reported to PCR because it is crucial fact in this matter though IO PW2 in his examination in chief has stated that " first telephone might have been made by mobile no. 9810001266 by Suredner who was friend of Mr. Shiv Kumar son of Sh. Vasudev, I did not try to know that a telephone call was made to PCR by mobile 9810001266 by Mr. Surender Kumar". ( verbatim reproduction without gramattical correction) This statement of PW2 shows that he did not investigate who made PCR call on the basis of which DD no. 40 A was registered. Moreover, PW2 has also become witness when he reached on the spot and case is also investigated by him which is violation of right of accused persons of free and fair trial because IO PW2 who is also witness in this matter has become investigating officer in the matter. In the case where no public witness has been joined, the statement of police officials is to be scrutinized very carefully and seeing that IO did not hand over matter to some other IO for fair and free investigation and no explanation has been brought forward regarding threat to Shiv Kumar son of Sh. Vasudev and DD entry was regarding the fact that threat has been given to accused Shiv Kumar and two persons has left , then how all accused person were present on the spot, moreover, there are FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar Page 8 of 8 contradiction in deposition of prosecution witnesses with respect to presence of public witness on the spot. The whole scenario become more important as PW2 has stated that place of incident is 1 1.5 far lang from the PS. It means that when call is made to PS then police officials came to know that fight is going on in street and they did not went to spot of their own when spot is just 1/1.5 farlang from PS, therefore, testimony of PW2 and PW3 does not inspire confidence of the court.
9. FINAL VERDICT: Keeping in view the discussion laid above, Prosecution has failed to prove its case beyond reasonable doubt which is duty of prosecution. Hence, all accused persons are acquitted of the offence u/s 160 IPC Act.
Announced in the open court
on 17.09.2014 (Sudhir Kumar Sirohi)
M M02/Dwarka Court,
New Delhi, 17.09.2014
FIR NO: 684/06 PS: Dabri State Vs. Pradeep Kumar