Delhi District Court
State ...........Prosecution vs . on 6 May, 2022
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 92/18
Police Station Domestic Airport
Under Section(s) 160 IPC
Cr. Case no. 31821/2018
CNR no. DLSW020506442018
IN THE MATTER OF:
State ...........Prosecution
Vs.
1. Chanderhas
S/o Sh. Ganga Singh
R/o D372, Qutab Vihar, PhaseI,
Goyla Dairy, Delhi.
2. Hari Singh
S/o Sh. Suresh Kumar
R/o H. no.76, Sarai Kale Khan,
New Delhi. .......Accused Persons
1. Name of complainant : ASI Rajesh Kumar
2. Name of accused persons : 1. Chanderhas
2. Hari Singh
3. Offence complained of : Under Section 160 IPC of
Indian Penal Code, 1860.
4. Plea of accused persons : Not guilty
5. Date of commission of offence : 12.10.2018
6. Date of institution of case : 15.12.2018
State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.1/13
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2022.05.06
15:43:54 +0530
7. Date of reserving judgment : 26.04.2022
8. Date of pronouncement : 06.05.2022
9. Final judgment : Both accused persons
acquitted.
JUDGMENT:
1. The present case pertains to prosecution of accused persons in respect of offence punishable u/S 160 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC').
2. Giving a brief outline of prosecution case, it is alleged that on the receipt of DD no.5A dated 12.10.2018, complainant/IO ASI Rajesh Kumar reached the spot of incident at Ola/Uber Car Parking, Terminal1, Delhi where he saw two persons were fighting and huge crowd had gathered. In the meanwhile, Ct. Ashok also reached the spot. Upon inquiry, they came to know that a cab driver and an executive of Ola Company were quarrelling with respect to some parking issue. Both these persons were apprehended, who then disclosed their respective names as Chanderhas (hereinafter, accused no.1) and Hari Singh (hereinafter, accused no.2). As the accused persons fought at a public place, thereby breaching public peace, the IO got the FIR registered and undertook investigation. Accused no.1 was got medically examined at Safdarjung Hospital whereas, accused no.2 refused to get his medical examination conducted. The MLC of accused no.1 was obtained, the accused persons were arrested and thereafter, released on police bail. The site plan was prepared and statement of witness under Section 161 Cr. P. C. was recorded. Upon State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.2/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:44:07 +0530 the culmination of investigation, the chargesheet was filed against both the accused persons in court.
3. Cognizance was taken of offence u/S 160 IPC and the accused persons were summoned to face trial for said offence. On their appearance, the copy of chargesheet was supplied to accused persons in compliance with Section 207 Cr. P. C.
4. On the basis of material filed along with the chargesheet, notice of accusation u/S 160 IPC of the Act was served upon the accused persons to which they pleaded not guilty and claimed trial. The accused persons admitted in their statement under Section 294 of Cr. P. C. the genuineness of FIR registered on 12.10.2018 marked as Ex.A.
5. In order to prove its case, the prosecution examined two witnesses in all. PW1 Ct. Ashok Kumar deposed that he was on duty at parking from 8:00 AM to 7:00 PM on 12.10.2018. At about 03:30/03:45 pm, he saw that crowd had gathered at Ola Uber Parking. He went towards the spot of incident and in the meanwhile, the PCR had also arrived. Thereafter, he and ASI Rajesh Kumar saw two persons fighting among the crowd. They dispersed the crowd and apprehended both the persons who were fighting. Upon inquiry, their names were revealed as Chanderhas and Hari Singh and it was further revealed that they were fighting over a parking issue. Thereafter, the IO prepared tehrir and handed it over to him. He took the tehrir to police station and got the FIR registered. He then took the copy of FIR and original tehrir to the spot of incident and handed over the same to State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.3/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:44:16 +0530 IO ASI Rajesh Kumar. Thereafter, IO arrested both the accused persons in his presence vide separate arrest memos Ex.PW1/A and Ex.PW1/B. He correctly identified the accused persons in court.
6. In his crossexamination by accused no.1, he deposed that there were about 2530 persons in the crowd who were trying to stop them from fighting. He failed to recall the details of parking issue over which the accused persons were fighting. He did not attach any duty record with the FIR. He stated that he had requested persons in the crowd to join investigation but none agreed. He denied the suggestion that he was present at the spot of incident. He was not crossexamined by accused no.2 despite opportunity.
7. PW2 ASI Rajesh Kumar (complainant/IO) stated that on 12.10.2018, he was on emergency duty and upon receiving DD entry no.5A Ex.C1, he went to the spot of incident and saw that crowd had gathered at Ola Uber Parking where the accused persons were fighting. Ct. Ashok also reached at the spot and helped him in apprehending the accused persons who disclosed their names and further that they were fighting over a parking issue. Thereafter, he prepared a tehrir Ex.PW2/A and handed over the same to Ct. Ashok who went to the police station to get the FIR registered. He sent accused no.1 through QRT staff to Safdarjung Hospital for medical examination and prepared the site plan Ex.PW2/B. After sometime, Ct. Ashok came back to the spot and handed over to him the copy of FIR and original tehrir. He arrested both the accused persons and released them on police bail.
State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.4/13 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.05.06 15:44:29 +0530
8. PW2 ASI Rajesh Kumar was crossexamined at length. In the crossexamination by accused no.2, he stated that he did not place on record the MLC of accused no.1. He further stated that there was no written direction from higher officials whereby he was appointed as the IO in the present matter. He admitted that one Naveen Joshi, Senior Official of accused no.2 at Ola Company, was present during the time when accused no.2 was arrested. In his crossexamination by accused no.1, PW2 stated that the call regarding present incident was made by accused no.1 but he was not made a witness. He denied the suggestion that he falsely implicated accused no.1 as the latter refused to submit to his demand for money after call was received.
9. On account of the admission of genuineness of FIR Ex.A by the accused persons under Section 294 Cr.P.C, PW W/ASI Manita Kumari was dropped from the list of prosecution witnesses and her examination in that regard was dispensed with.
10. Thereafter, the prosecution evidence was closed and separate statements of accused persons were recorded under Section 281 read with 313 Cr. P. C. All the incriminating circumstances appearing against the accused persons in evidence were put to them. The accused persons controverted all the allegations levelled against them and stated that they had been falsely implicated. Accused no.1 additionally stated that he is an Ola Cab driver and on the day of incident, one of his passengers asked him to drop him at a different location and when he refused, his supervisor Hari Singh entered into a scuffle with him and forced him to drop the said passenger at the desired location. On the other hand, accused no.2 additionally stated that he was on duty at State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.5/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:44:41 +0530 Ola Parking as an Executive Incharge and was called at the spot of incident by junior Aman Rathi who told him that police had called an Ola Employee to the police station and therefore, he went to the police station as a part of his duty. The accused persons chose not to lead defence evidence, whereafter, defence evidence was closed and the matter was taken up for final arguments.
11. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused persons beyond reasonable doubts. The statements of prosecution witnesses are consistent with each other so as to prove the fact of quarrel between the accused persons which disturbed the public peace. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused persons be convicted of alleged offence.
12. Per contra, the Ld. Counsels for accused persons have strenuously urged for acquittal of accused persons on various grounds. It is argued that no independent public person has been and the presence of Ct. Ashok Kumar at the spot is also not established. It is contended that the investigation has not been conducted in a fair manner as the CCTV footage and MLC of accused no.1 is not placed on record. Lastly, it is asserted that the basic elements of the alleged offence are also not fulfilled in the present case as the prosecution failed to prove that public peace was disturbed by the alleged acts of accused persons.
13. Arguments heard. Record perused. Considered.
14. Before delving into merits, it is pertinent to delineate the State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.6/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:44:54 +0530 basic ingredients of the offence for which the accused persons have been tried. Section 160 IPC penalises the offence of affray which is defined under Section 159 IPC as two or more persons disturbing public peace by fighting in a public place. Thus, prosecution has a bounden duty to prove beyond all reasonable doubts that accused persons were fighting in a public which caused disturbance of public peace.
15. At the outset, it may be noted that the entire prosecution case hinges on the testimony of PW1 Ct. Ashok Kumar an PW2 ASI Rajesh Kumar, who were the police officials and also the eyewitnesses to the alleged incident. Both these witnesses have merely stated that they saw the accused persons fighting at Ola/Uber Parking over a parking issue. It is not in dispute that the spot of incident is a public place. Nonetheless, they did not elaborate upon the manner of fighting in their statements. Further, PW2 stated in crossexamination that accused persons were quarrelling over a parking issue. No other fact describing the alleged fighting has come on record in the prosecution evidence.
16. It has been held in catena of decisions that merely because two persons fight on a public street or enter into an altercation of words, that will not amount to an offence of affray. Mere quarrelling or abusing in a street without exchange of blows is not sufficient to attract the application of this section. At this juncture, reliance may be placed upon the judgment of Puran Chand Vs. The State 1963 SCC OnLine Punj 105 wherein it is held as follows: State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.7/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:45:19 +0530 "3. In the present case there is nothing on the record to show that the accused successfully or even otherwise exchanged any blows. What we have on the record is that there is only exchange of abuses.
The exchange of abuses, in my opinion, would not amount to an affray. Something more than a mere wordy quarrel is needed before a person can be convicted under this section. It would be enough if blows are aimed, whether those prove to be successful or otherwise. But even that is lacking in this case. The learned Sessions Judge while recommending this case to this Court relied on Ganesh Das v. Emperor and Jagannath Sah v.
Emperor. In addition to the above authorities, Atma Singh v. The State is also relevant to understand what is meant by the word 'fight' and the word 'affray'."
17. Adverting to the present case, it is amply clear that there is no such allegation as would suggest that the accused persons indulged in any act other than quarrelling. Even the details of such quarrelling are not recounted by the witnesses apart from the fact that it was qua a parking issue. It is not even the case that they had resorted to verbal abuses or any physical fight. Mere wordy quarrel would not suffice to attract the offence of affray.
18. Even otherwise, a comprehensive reading of the testimonies of witnesses in the backdrop of documentary evidence on record bring to light certain glaring discrepancies in the conduct of investigation in the present case. As per DD no.5A dated 12.10.2018 Ex.C1, information was received to the effect that the caller was beaten. However, nowhere this material fact has been mentioned by IO in the chargesheet. Needless to mention, no investigation on that front has State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.8/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:45:30 +0530 been done. It appears that the IO has made an abortive attempt to conceal this fact from court for reasons best known to him.
19. In fact, in his crossexamination, PW2 ASI Rajesh Kumar stated that the call was made by accused no.1 himself. In such a scenario, the failure to examine the informant to unearth the correct state of affairs and directly implicating the informant himself raises an adverse inference on the conduct of IO and insinuates to a prejudicial enquiry. Moreover, the MLC of accused no.1 is also not put on record by the IO, constraining this court to presume that such document would have been unfavourable to the case of prosecution case if it were produced in evidence.
20. The apparent bias in investigation is accentuated by the fact that PW2 ASI Rajesh Kumar, who is the complainant in the present case, automatically proceeded to investigate the matter without the investigation having marked to him. It is true that the investigation is not vitiated by the sole reason that the complainant is the investigator, however, the court has to consider if there are other factors in conjunction which render the investigation so defective as to giving rise to reasonable doubts in favour of accused. Here, it is also apposite to refer to the following observations of Hon'ble Supreme Court in Megha Singh "Vs. State of Haryana (1996) 11 SCC 709: "After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.9/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:45:40 +0530 noted another disturbing feature in this case. PW3, Siri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation."
21. In the instant case, the fact that PW2 ASI Rajesh Kumar himself lodged the complaint by preparing tehrir and proceeded with investigation despite the presence of PW1 Ct.Ashok Kumar further shrouds doubt over the presence of PW1 at the spot of incident. There is also no DD entry to corroborate the fact that PW1 was on duty at the time of alleged incident.
22. Moreover, it is evident that there were many public persons present at the spot as the witnesses have stated that a large crowd had gathered when the fighting took place. However, despite the availability of independent public witnesses, no serious effort for joining those witnesses appears to have been made by the IO. The court is cognizant of the well settled legal position that the prosecution case cannot be disbelieved merely on the basis that all the witnesses are police officials and that the testimony of police witnesses can be relied upon to convict the accused, however, their evidence needs to be weighed in light of the varied facts and circumstances of each case.
State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.10/13 Digitally signed by BHARTI BHARTI GARG GARG Date: 2022.05.06 15:45:51 +0530
Reliance in that regard is laid upon the judgment of Hon'ble Supreme Court of India in Tahir Vs. State (Delhi) (1996) 3 SCC 338, wherein it has been observed as hereinunder:
"6. Mr. D. D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW4 to PW7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agree. In our opinion no. infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no. rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of the evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can from basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case."
23. However, the testimonies of police witnesses in the present case do not inspire the confidence of this court for reasons discussed hereinbefore. In such a case, it was imperative for the prosecution to adduce the evidence of an independent public witness to corroborate the otherwise uncompelling evidence of police witnesses on the point as to how the public peace was disturbed due to the fight between accused persons. The absence of independent witnesses on record and State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.11/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:46:02 +0530 omission to investigate further on the complaint made initially by accused no.1 raises suspicion about the genuineness of allegations and actual occurrence of incident in question. In such an event, one cannot shy away from the possibility that the IO proceeded against the accused no.1 on extraneous considerations. Further possibility can also not be denied that the accused no.1 was acting in his defence when he was being beaten, as he informed in the PCR call, in which case, the offence of affray is also not made out. Reliance here is placed upon the judgment of Sunil Kumar Mohakud @ Mahakhuda & Anr. Vs. State of Orissa 2008 SCC OnLine Ori 359.
24. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond the shadow of reasonable doubts and the benefit of such reasonable doubt must necessarily accrue to the accused. Several reasonable doubts have emerged in the narrative put forth by prosecution as analysed hereinabove and the evidence of prosecution witnesses is not worthy of credit. The investigation in the present case has been mostly shoddy and there are glaring loopholes in the prosecution story. The basic ingredient of fighting so as to disturb public peace has not been established thereby precluding the culpability alleged against the accused persons. The inescapable conclusion is that the accused persons are entitled to benefit of doubt.
25. Resultantly, since the prosecution has failed in proving its case beyond reasonable doubts against the accused persons, both the State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.12/13 Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:46:14 +0530 accused persons Chanderhas S/o Sh. Ganga Singh R/o D372, Qutab Vihar, PhaseI, Goyla Dairy, Delhi and Hari Singh S/o Sh. Suresh Kumar R/o H. no.76, Sarai Kale Khan, New Delhi, are hereby acquitted of the offence punishable under Section 160 of Indian Penal Code, 1860.
Pronounced in open court in the Digitally presence of accused persons on 06.05.2022. BHARTI signed by BHARTI GARG Date:
GARG 2022.05.06
15:46:21
+0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/06.05.2022
It is certified that this judgment contains thirteen pages and each page has been signed by the undersigned. Digitally signed by BHARTI BHARTI GARG GARG Date:
2022.05.06 15:46:28 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/06.05.2022 State Vs. Chanderhas & Anr. CNR no. DLSW020506442018 Page no.13/13