Delhi District Court
State vs Saleem on 28 February, 2025
IN THE COURT OF MS SANGHMITRA, JUDICIAL
MAGISTRATE FIRST CLASS- 01 (SHAHDARA), KKD COURTS
DELHI
CR Cases 6988/2022
State Vs. Saleem
FIR No.176/2022
PS: GTB Enclave
U/S: 160 IPC
ID number of the case : DLSH02-019869-2022
Date of commission of offence : 10.03.2022
Date of institution of the case : 30.09.2022
Name of the complainant : ASI Rakesh Kumar
Name of accused and address : (i) Saleem, S/o Sh. Razak Ali, R/o
and his parentage Village Sunehra, Baghpat, Uttar
Pradesh.
(ii) Anshu, S/o Sh. Raj Kumar,
R/o H.No. 309, Shiv Vatika
Behta, Hazipur, Loni, Ghaziabad,
U.P.
(iii) Smt. Lata Saini, W/o Sh.
Sawan Saini, R/o BA-14, Gali No.
19, Jagatpuri Nathu Colony
Chowk, Mansarowar Park,
Shahdara, Delhi.
(iv) Mansi, W/o Sh. Deepak, R/o
A-251, Gali No. 8, Meet Nagar,
Gokulpuri, North-East, Delhi.
Offence complained of : 160/34 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 28.02.2025
FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.1 of 13
Digitally
signed by
SANGHMITRA
SANGHMITRA Date:
2025.02.28
16:56:35
+0530
JUDGMENT
I. Brief Background of the case -
1. Briefly stated the case of the prosecution is that on 10.03.2022 at about 11:55 AM at SDN Hospital, GTB Enclave, Delhi, all accused persons namely Saleem, Anshu, Smt. Lata Saini and Smt. Manshi in furtherance of their common intention had committed quarrelled / fought with each other at public place due to which public peace was disturbed and thereby, accused persons are alleged to have committed an offence punishable u/s 160/34 IPC.
2. After registration of FIR, the investigating officer (herein after IO) undertook the investigation and on culmination of the same, the charge-sheet was filed against the accused persons namely Saleem, Anshu, Smt. Lata Saini and Smt. Manshi. Ld. Predecessor of this Court took cognizance of the said offence vide order dated 07.01.2023 and issued process against the accused persons. Pursuant to the appearance of the accused persons, they were supplied the copy of chargesheet in compliance of Section 207 Cr.P.C. Upon hearing the arguments, vide order dated 21.05.2024 passed by the Ld. Predecessor of this Court, charge under Section 160/34 IPC was ordered to be framed against accused persons namely Saleem, Anshu, Smt. Lata Saini and Smt. Manshi. The accused persons pleaded not guilty and the matter was listed for Prosecution Evidence ('PE').
II. Prosecution Evidence -
3. The prosecution has examined 04 witnesses in evidence FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.2 of 13 Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.02.28 16:56:41 +0530 i.e. Ct. Yogesh as PW1, W/Ct. Swati as PW2, Ct. Kavita as PW3 and ASI Rakesh Kumar as PW4. The testimonies of prosecution witnesses are discussed herein under:
3.1.PW1 Ct. Yogesh deposed that on 10.03.2022, he was posted as Constable at PS GTB Enclave and on that day at about 11:30 AM, one PCR call was received at PS stating that one lady is trying to steal a motorcycle and is quarreling with security guards. Thereafter, he alongwith ASI Rakesh, W/Ct. Swati went to the spot of incident i.e. near Emergency, SDN Hospital where they saw that some public persons had gathered at the spot and two ladies and two gents were quarreling with each other. Out of two ladies, one lady was in uniform of guard and out of two gents, one male was also in uniform of guard. Thereafter, W/Ct. Swati alongwith them had tried to pacify the situation. After that, they took both the male persons to the SDN Hospital where their medical examination was conducted. Due to the quarrel of the said four persons, public peace was breached at the spot which was a public place. IO/ASI Rakesh recorded his statement and prepared the rukka. Accused Saleem and Anshul were arrested by the IO in his presence vide arrest memos Ex.PW1/A and Ex.PW1/B. In his cross-examination, he stated that departure entry was made in PCR call record. At about 12:30 PM, they had left the PS for SDN Hospital in private car of ASI Rakesh, however, he failed to remember the make, colour or registration number of that car. He stated that he had not informed the hospital authorities regarding the incident.
FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.3 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:56:46 +0530 When they had reached the spot, 20-22 people gathered at the spot. IO had recorded his statement at the PS at about 11:00 - 11:30 PM.
3.2. PW2 W/Ct. Swati deposed that on 10.03.2022, she was posted as Constable at PS GTB Enclave and on that day, one PCR call was received at PS regarding theft of one motorcycle by a lady and her apprehension. Thereafter, she alongwith Ct. Yogesh and ASI Rakesh went to the spot of incident i.e. near a Park adjacent to SDN Hospital. When they reached there, they saw 10-15 public persons had gathered and two ladies and two male persons were quarreling, fighting and abusing each other. The ladies were also shouting. Out of two ladies, one lady was in uniform of guard and out of two gents, one male person was also in uniform of guard. Thereafter, they had tried to pacify the situation, however, those people continued to quarrel, fight and abuse each other. Due to the said quarrel, abuse and fight, the public peace was being disturbed at the said public place. Both the ladies had told her that they had sustained injuries and thereafter she took both the females to the SDN Hospital where their medical examination was conducted. Both the ladies were relieved by the IO from the spot itself. thereafter they had returned back to the PS and IO recorded her statement at the PS. In her cross-examination, she deposed that they left the PS for spot of incident at 11:50 AM on ERV i.e. vehicle used by police for patrolling duty. They took 5-7 minutes to reach the spot. She admitted that the fact that the accused persons were shouting has not been mentioned in her FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.4 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:56:52 +0530 statement recorded by the police u/s 161 Cr.P.C. She also stated that she had not informed the security guard incharge about the apprehension of two security guards. She had returned back to the PS at 02:00 PM. IO had recorded her statement at about 08:00 - 8:30 PM. 3.3.PW3 Ct. Kavita deposed that on 14.04.2022, she was posted as Constable at PS GTB Enclave having duty hours from 02:00 PM to 08:00 PM and on that day, at around 04- 05:00 PM, she along with ASI Rakesh went to Jagatpuri for investigation in the present case and IO had interrogated one female namely Lata and thereafter IO/ASI Rakesh had bound her down. thereafter she along with IO had gone to the house of accused Mansi in Meet Nagar, Delhi. There as well, IO had interrogated accused Mansi and bound her down. Thereafter, they came back at the PS. In her cross-examination, she stated that she is not aware whether any departure entry was made by the IO before leaving PS. They had gone to had gone to Jagatpuri and Meet Nagar on private motorcycle.
3.4.PW4 ASI Rakesh deposed that on 10.03.2022, he was posted as ASI at PS GTB Enclave having duty hours from 08:00 AM to 08:00 PM and on that day, one PCR call was received where stating that one lady and one male were trying to steal one motorcycle from the parking of SDN Hospital and they were apprehended at the spot. Thereafter, he along with Ct. Yogesh and Lady Ct. Swati had gone to the spot and after reaching there they saw that several public persons had gathered there and two male persons and two female persons were quarreling with each FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.5 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:56:58 +0530 other. Out of two male persons, one male was in uniform of a guard and out of two female persons, one female was in uniform of a guard. He had pacified the situation and thereafter he had interrogated one female namely Lata who was the supervisor of Guards at SDN Hospital and she informed that one person namely Ashu and his wife were taking one motorcycle from the parking without having any parking slip/token and thus the guards who were posted there had stopped them and due to which a scuffle took place between the two guards and these husband and wife and thereafter one PCR call was made. Due to the quarrel of said accused persons, public peace was breached. Thereafter, he had taken all the accused persons to SDN Hosptial where their medical examination was conducted. Formal MLCs of male accused persons were prepared and detailed MLCs were prepared for female accused persons. He had received all the MLCs of accused persons Ex.PW-4/A(colly) and thereafter he had taken both male accused persons to the PS where he had prepared rukka Ex.PW-4/B. Therafter, the FIR was registered. Thereafter, he arrested both male accused persons vide arrest memos Ex.PW-1/A and Ex.PW-1/B. Thereafter, he had released both male accused persons on bail. Thereafter, he had prepared the site plan at the instance of accused persons Ex.PW-4/C. On 14.04.2022, he along with Lady Ct. Kavita had gone to the house of accused Lata Saini in Jagatpuri and had interrogated her and bound her down. Thereafter, they had gone to Meet Nagar, at the house of accused Mansi where she was FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.6 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:57:04 +0530 interrogated and bound down. Thereafter, he had asked both the accused persons namely Lata and Mansi as to whether they want any action on the basis of their MLCs and they both informed him that they don't want any action. Thereafter, they returned back to the PS, recorded the statements of all the witnesses, prepared the charge sheet and submitted before the court.
In his cross-examination, he stated that he had gone to the spot alone on private bike make Passion Pro and had reached the spot in the afternoon. There were 15 to 20 other persons present at the spot when he reached the spot. CCTV camera was not installed at the spot of incident. He had not given any written notice to the concerned hospital for obtaining the CCTV footage of the spot of incident. He had not given any written notice to the public persons to join the investigation. He admitted that no public person gave him any complaint regarding breach of peace. He admitted that accused persons namely Lata and Salim are the guards of SDN Hospital and he had not informed the administration of hospital regarding the incident and also regarding the apprehension of the accused persons and also about the fact of bounding them down. He admitted that the doctors who prepared the MLC have not cited as a witness. He admitted that he had not mentioned in the rukka the fact mentioned by him in his examination-in- chief that he had pacified the situation and had interrogated one female namely Lalta and she informed him that accused Ashu and his wife were taking one motorcycle from the parking without having parking slip/token and FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.7 of 13 Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.02.28 16:57:09 +0530 thereafter, the guards posted there had stopped them due to which a scuffle took place between guards and these husband and wife. He also stated that he returned back to the PS in evening. After receiving GD No. 40A, they had gone to the spot.
III. Admission/Denial of Documents -
4. Vide separate statement recorded u/s 294 Cr.P.C, accused admitted the genuineness of FIR No. 176/2022 alongwith certificate u/s 65 of Indian Evidence Act Ex.A1(colly), GD No. 40A and GD No. 123A both dated 10.03.2022 Ex.A2(colly) and GD No. 68A dated 14.04.2022 Ex.A3. Thereafter, PE was closed.
IV. Statement / Defence of the Accused -
5. The statements of the accused persons were recorded u/s. 313 Cr.P.C and all the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused persons denied the case of the prosecution and pleaded innocence by stating that they have not committed any offence and they have been falsely implicated by the IO in the present case. Accused did not lead defence evidence and accordingly, DE was closed.
V. Arguments Advanced by the Parties -
6. It is argued by the Ld. APP for State that the duty of the prosecution is to prove the facts in issue of the offences in question punishable under section 160/34 IPC. Therefore, it is prayed that the accused persons be convicted of alleged offence.
FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.8 of 13 Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.02.28 16:57:16 +0530
7. Per contra, Ld. Counsel for accused persons has submitted that the accused has been falsely implicated in the present case. The case of prosecution is entirely based upon the testimony of police witnesses and is not independently corroborated. No CCTV footage of the incident has been brought on record. Further, despite the place of incident being a public place, no public person has been examined by the IO. Further, there is inconsistency in the testimonies of prosecution witnesses. Thus, he prayed that the accused be acquitted of the charges.
VI. Appreciation of evidence -
8. I have heard the arguments and perused the material on record. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless provided otherwise by the Statute.
9. In the present case, accused persons have been charged for the offence under section 160/34 IPC.
10. Section 160 IPC deals with the punishment for the offence of affray defined under section 159 IPC. Section 159 IPC reads as under : -
"159. Affray.-- When two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.9 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:57:21 +0530 affray".
11. From the definition it is clear that the offence of Affray is committed when two or more persons fight in a public place and disturb the public peace. In Vishwanath Gadkar vs State of Haryana CRM-M-18080 of 2022, the Hon'ble Punjab & Haryana High court has observed as follows : -
"9. Tracing back the view as regard the allegations in the case at hand are concerned, it was held in Jagannath Sah vs. Emperor, AIR 1937 Oudh, 425, that the offence of affray as defined in Section 159 IPC postulates the commission of definite assault and a breach of the peace and mere quarreling or abusing in street without exchange of blows is not sufficient to attract the application of this Section and this Court in Puran Chand vs. The State, 1963 PLR 813, observed that to constitute affray exchange of blows was a must.
10. An essential ingredient of the offence being disturbance of public peace is more pervasive and of wider reach. There must be a prima facie positive evidence of having disturbed the tranquility, which is complained of by the one affected. The police have to of course keep a vigil and take prompt action where required to restore peace but are also duty bound to distinguish between the different forms of altercation, so as to set the criminal law in motion. Independent corroboration to the alleged incident is conspicuously absent. There being no concept of automatic presumption of disturbance of peace, no material is on the record from which it may be patent that there was a supervening apprehension of threat or danger to a third person present at the spot, eventuating in the peace being disturbed, on account of the altercation as alleged between FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.10 of 13 Digitally signed by SANGHMITRA SANGHMITRA Date:
2025.02.28 16:57:26 +0530 the petitioner and his co-accused friend (now deceased). Suffice it to say that the FIR ex facie lacks the basic ingredients of the offence under Section 159 IPC, for which the petitioner has been made to stand trial."
12. From the above discussed law, it is clear that for an offence of affray assault/physical flight where blows are exchanged is an essential ingredient and such physical fight must have breached the public peace which is reflective by a complaint being made by one affected by such fight.
13. In the present case, it is the case of the prosecution that the accused persons were quarreling with each other. PW1 and PW1 deposed that the accused persons were quarreling with each other, however, PW2 deposed that the accused persons were quarreling, fighting and abusing with each other. Firstly, there is a contradiction in the testimonies of witnesses on this point, and secondly, even if for the sake of argument, it is considered that the accused persons were fighting or quarrelling with each other, none of the prosecution witnesses have deposed about the manner in which the accused persons were quarreling or fighting so as to make the act in question fall within ambit of the offence of Affray. There is no evidence on record to show that the accused persons were actually involved in physical assault by exchanging blows or that the alleged fight or quarrel between the accused persons caused disturbance in public tranquility.
14. Further, it is also stated by all the prosecution witnesses that the place of incident is a public place and public FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.11 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:57:31 +0530 persons were present at the alleged spot of incident, still the public persons were not examined in the present case. No explanation has been given for not examining the public persons. Rather PW4 has deposed he had not given any written notice to the public persons to join the investigation. Furthermore, no CCTV footage of the incident has brought on record.
15.Further, PW4 has admitted that no public person gave him any complaint regarding breach of peace. Thus, there is no evidence on record to show that public peace was actually breached by the alleged quarrel of the accused persons.
16.The Hon'ble Punjab and Haryana High Court in Upmanyu & Ors vs. State of Haryana [2023:PHHC:151949] held that:
"There is nothing on record to show that the accused successfully or even otherwise exchanged any blows or hot words. There is no independent evidence on record to establish that there was a disturbance of public peace due to the fight in a public place. Merely causing inconvenience to the public cannot be considered to be sufficient to constitute the offence of affray. Even the improved version coming forth in the replies of the State that the five persons were spotted rioting, shouting loudly and created hindrance in the traffic, in the absence of any independent evidence would not make out any offence."
17.In the present case also, as noted above, admittedly the independent witnesses were available at the spot, but they were not made to join in the investigation. Rather the IO had not even served any notice upon them to make them FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.12 of 13 SANGHMITRA Digitally signed by SANGHMITRA Date: 2025.02.28 16:57:37 +0530 join the investigation and this casts a doubt on the case of prosecution.
18.Further, there are inconsistencies in the testimonies of prosecution witnesses. It is stated by PW1 that the spot of incident was near emergency, SDN Hospital, however, PW2 Amit deposed that the spot of incident was near a park adjacent to SDN hospital. Further, PW1 deposed that they all left the PS at 12:30 PM, however, PW2 deposed that they all left the PS at 11:50 AM. Furthermore, PW1 deposed that they left the PS for the spot in a private car of ASI Rakesh (PW4), however, PW2 deposed that they left the PS for the spot in a vehicle used for patrolling duty i.e. ERV and PW4 deposed that he went to the spot on a private bike. These inconsistencies in the testimonies of prosecution witnesses have further created strong doubts on the prosecution's case.
19. In view of the above discussion, as the prosecution has failed to prove the guilt of the accused persons beyond reasonable doubt, accused persons namely Saleem, Anshu, Lata Saini and Mansi are acquitted of the offence punishable under section 160/34 IPC.
Digitally signed by SANGHMITRA Announced in the open court SANGHMITRA Date:
2025.02.28 16:57:43 +0530 on dated : 28.02.2025 (Sanghmitra) Judicial Magistrate First Class-01 (SHD) Karkardooma Court/Delhi This judgment consists of 13 pages and each and every page of this Digitally judgment is signed by me.
signed by SANGHMITRA SANGHMITRA Date:
2025.02.28 16:57:47 (Sanghmitra) +0530 Judicial Magistrate First Class-01 (SHD) Karkardooma Court/Delhi FIR No. 176/2022, PS GTB Enclave State vs. Saleem & Ors. Page No.13 of 13