Delhi District Court
State vs . on 28 July, 2011
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
METROPOLITAN MAGISTRATE-06 (East), KARKARDOOMA
COURTS, DELHI.
FIR NO. 889/05
PS: Preet Vihar
Offence complaint of : 160 IPC
Date of commission of offence : 03.12.2005
Unique Case ID No. : 02402R0124972006
STATE Vs.
1.Manoj Vidyarthi S/o Sh. R.D. Vidyarthi R/o H. No. 34, South Anarkali Extn., Delhi.
2. Parishram Sheel S/o Sh. Lilay Singh R/o C-2/339, Yamuna Vihar, Delhi.
3. Karm Sheel S/o Sh. Lilay Sheel R/o C-2/339, Yamuna Vihar, Delhi.
................Accused persons HC Hoshiyar Giri, PS- Preet Vihar, Delhi.
............. Complainant
Date of Institution : 28.02.2006
Plea of accused : Pleaded not guilty
Date of reserving judgment/ order : 06.07.2011
Date of pronouncement : 28.07.2011
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 03.12.2005 at about 9:20 PM in front of H. No. 34, South Anarkali Extn., Delhi, falling within the jurisdiction of Police Station Preet Vihar, all the FIR No. 889/05 Page No. 1 / 6 accused persons namely Manoj Vidyarthi, Parishram Sheel and Karm Sheel committed an offence of affray. Thus, all the accused persons are alleged to have committed an offence punishable u/s 160 IPC.
FIR On the basis of the said allegations and on the complaint of the complainant HC Hoshiyar Giri, an FIR bearing number 889/05 under section 160 IPC was lodged at Police Station Preet Vihar on 03.12.2005.
CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 28.02.2006.
The accused persons were summoned to face trial and they were supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a charge for the offence punishable under section 160 IPC was framed against the accused persons namely Manoj Vidyarthi, Parishram Sheel and Karm Sheel and read out to the said accused persons, to which the accused persons pleaded not guilty and claimed trial on 20.11.2009.
JUDICIAL RESOLUTION In order to prove the offence u/s 160 IPC, the prosecution is required to prove following facts beyond reasonable doubts :-
(1)That two or more persons were fighting, and (2)That they were fighting in a public place, and (3)That due to such fight public peace was disturbed.FIR No. 889/05 Page No. 2 / 6
All the accused persons are alleged to have committed an offence punishable u/s 160 IPC as it is alleged that all the accused persons were quarreling with each other, abusing each other and thereby disturbing the public persons.
In order to prove the above said allegations, the prosecution has examined 3 witnesses namely HC Hoshiyar Giri the complainant as PW-1, DO/ HC Tej Pal as PW-2 and Ct. Dhir Singh as PW-3.
PW-1 IO/ HC Hoshiyar Giri and PW-3 Ct. Dhir Singh in their examination in chief deposed that on 03.12.2005 on receiving a call regarding quarrel they reached at the spot i.e., South Anarkali where they found that accused persons namely Manoj Vidyarthi, Parishram Sheel and Karm Sheel were quarreling with each other and abusing each other. IO (PW-1) tried to stop the quarrel and thereafter prepared a tehrir Ex. PW-1/A and sent the same through Ct. Dhir Singh (PW-3) to the PS for the registration of FIR. All the three accused persons were sent for Medical Examination with Ct. Dhir Singh(PW-3). Thereafter, all the three accused persons were arrested vide memos Ex. PW-1/B, PW-1/C and PW-1/D respectively and were personally searched vide personal search memos Ex. PW-1/E, PW- 1/F and PW-1/G respectively. PW-1 also proved the site plan Ex. PW-1/H. PW- 2 HC Tej Pal had recorded the FIR of the present case Ex. PW-2/A on the basis of rukka brought by Ct. Dhir Singh and sent by HC Hoshiyar Giri on 03.12.2005.
FIR No. 889/05 Page No. 3 / 6On 30.06.2011 Statement of all three accused persons u/s 281 Cr.P.C were recorded separately wherein they denied the allegations of prosecution and claimed innocence. However, they did not desire to lead evidence in their defence.
I have heard the Ld. APP for the state and the Ld. Defence Counsel and have also carefully perused the entire record and the relevant provisions of the law.
The accused persons have been alleged to have committed an offence of affray. The word 'affray' is derived from the French word affraier, to terrify, and in a legal sense it is taken for a public offence to the terror of the people. The essence of the offence consists in the terror it is likely to cause to the public. Thus, an affray is an offence to a public peace because it is committed in a public place and is likely to cause general alarm and disturbance. Merely causing public inconvenience is not enough. Thus, before a conviction can be entered under section 160 IPC, there must be a clear finding by the court that the place of occurrence is the public place and that public peace was disturbed.
In the present case, as far as PW-1 is concerned, he has nowhere stated in his entire testimony that because of fight between the accused persons, public peace was disturbed. He has not even mentioned as to whether any inconvenience was caused to any public person who was present at the spot at the time of occurrence.
Similarly, the only other eye witness i.e., PW-2 Ct. Dhir Singh has also not stated in his entire testimony that because of fight between the accused persons, public peace was disturbed. He has not FIR No. 889/05 Page No. 4 / 6 even mentioned as to whether any inconvenience was caused to any public person who was present at the spot at the time of occurrence.
In total three witnesses have been examined by the prosecution, out of which PW- 3 HC Tej Pal is duty officer and not an eye witness to the incident.
The other two witnesses i.e., PW-1 HC Hoshiyar Giri and PW-2 Ct. Dhir Singh are absolutely silent on the point as to whether public peace was disturbed or not due to the alleged fight between the accused persons.
Further, it is found that besides allegations of quarrel between the accused persons, there are no allegations or evidence to show that there were exchange of blows between the accused persons.
In judgment titled Ganesh Dass VS. Emperor AIR 1928 Lahore 813, it was observed that section 160 IPC postulates commission of definite assault or breach of peace. It was further observed that in absence of evidence of exchange of blows, the accused persons might have committed whatever offence, but they were not within the preview of section 160 IPC.
A similar observation was made by Mysore High Court in M. Korga Shethi Vs. The State of Mysore 1971 Cri.L.J 1041 wherein it was observed that mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section.
In the present case, as stated earlier there is no evidence to show that there was actual exchange of blows and in absence of such evidence, the accused persons cannot be convicted under section FIR No. 889/05 Page No. 5 / 6 160 IPC in the light of the above cited judgments.
Moreover, if there was disturbance to public peace as per the prosecution version, then atleast one public person should have been made a witness in the present case so as to prove that public peace was actually disturbed because of the quarrel between the accused persons. The investigating agency has failed to cite any public witness which further creates doubt as regards the prosecution story.
In the light of the above cited reasons, the court is of the opinion that no offence under section 160 IPC is made out against the accused persons and accused persons namely Manoj Vidyarthi, Parishram Sheel and Karm Sheel are accordingly acquitted under the said section.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bonds and the sureties bond of the accused persons as well as sureties shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 28.07.2011.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 28.07.2011 Certified that this judgment contains 6 pages and each page bears my signature.
(SAURABH PARTAP SINGH LALER) MM-06(East)/KKD/ 28.07.2011 FIR No. 889/05 Page No. 6 / 6