Delhi District Court
State vs Pramod Kumar Etc on 16 February, 2024
IN THE COURT OF MS. VIDHI GUPTA ANAND,
CHIEF METROPOLITAN MAGISTRATE
SHAHDARA, KKD, DELHI
JUDGMENT U/S 355 Cr.PC
CIS No.DLSH020010742011
a. Serial No. of the case : FIR No.416/11 PS
Jyoti Nagar [Cr. Case
No.81106/2016 ]
b. Date of the commission of the : 23.10.2011
offence
c. Name of the Complainant : ASI Satyabir Singh
d. Name of Accused person and his : 1. Pramod Kumar
parentage and residence S/o Sh. Gameshwar
R/o H.No.D-730, Gali
No.11, Ashok Nagar,
Delhi (Already
convicted and
sentenced vide order
dated 05.02.2015).
2. Sherpal
S/o Sh. Ramji Lal
Gautam
R/o H.No.D-1066, Gali
No.9, Ashok Nagar,
Delhi.
e. Offence complained of : 160 IPC
f. Plea of the Accused and his : Not guilty.
examination (if any)
g. Final Order : Acquitted
h. Order reserved on : 16.02.2024
i. Order pronounced on : 16.02.2024
FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 1 of 12
BRIEF REASONS FOR THE DECISION
1.Vide this judgment, the present case registered vide FIR No.416/11, PS Jyoti Nagar u/s 160 IPC against Accused Sherpal shall be decided and disposed off. It is pertinent to mention here that co-Accused Pramod Kumar has already been convicted and sentenced vide order dated 05.02.2015.
Brief facts of the cases:
2. Succinctly stated, facts of the Prosecution case are that on 23.10.2011, ASI Satyabir Singh received DD No.26A regarding quarrel at H.No.730, Gali No.11, Ashok Nagar, Delhi. He, accordingly, alongwith Ct. Ajay Malik reached at the spot and saw that public persons were gathered there. Thereafter, ASI Satyabir Singh somehow managed the crowd and found that Accused Pramod Kumar and Accused Sherpal were quarreling with and abusing each other on the road as a result of which the road was blocked. Thereafter, ASI Satyabir with the help of Ct.
Ajay Malik apprehended both the Accused persons and took them to GTB hospital for medical examination in PCR Van. Consequently, the present FIR under Section 160 IPC (titled as Punishment for Committing Affray) was registered against both the Accused persons at police station Jyoti Nagar.
Trial Proceedings:
3. After completion of the investigation, charge-sheet under section 160 IPC was filed before the court. Consequently, their appearance was ensured to face the trial. Upon their appearance in the Court, the copies of documents, relied upon by the Prosecution, were supplied to both the Accused persons in terms FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 2 of 12 of section 207 Cr.P.C.
4. Vide order dated 29.01.2013, charge under section 160 IPC was framed against both the Accused persons to which they pleaded not guilty and claimed trial. However, during the course of trial, on 05.02.2015, Accused Pramod Kumar pleaded guilty and was accordingly convicted and sentenced for the offence u/s 160 IPC. Thereafter, trial continued only with respect to Accused Sherpal.
5. In order to bring home the guilt of the Accused, Prosecution examined two witnesses as follows:
5.1 PW1/Ct. Ajay: He deposed that on 23.10.2011, ASI Satbir had received DD No.26A and he alongwith ASI Satbir went to Gate No.11, Ashok Nagar, Delhi infront of H.No.730 and saw that many public persons were gathered at the spot and two persons were quarrelling with each other. Thereafter, both the Accused persons were apprehended and upon inquiry their names were revealed as Sherpal and Pramod. He further deposed that it was a public place where the Accused persons were quarreling with each other and committing affray. He specifically deposed that due to the conduct of the Accused persons, public persons were facing inconvenience and were annoyed as accused persons were causing obstructions on their way. He added that no visible injuries was found on Accused persons. Further, witness deposed that IO prepared rukka and gave it to him for registration of FIR, accordingly, he went to PS and after registration of FIR, he came back at the spot alongwith original rukka and copy of FIR and handed over the same to the IO. He further testified that IO FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 3 of 12 arrested both the Accused persons in his presence vide arrest memos Ex.PW1/A and Ex.PW1/B respectively and their personal search was also conducted vide memos Ex.PW1/C and Ex.PW1/D. He stated that thereafter IO prepared site plan and got the Accused persons medically examined at GTB hospital.
Lastly, he deposed that since offence was bailable in nature, Accused persons were released on police bail.
In his cross examination by Ld. Defence counsel, he deposed that they reached at the spot at 05:45 pm. He stated that nobody came forward to be a witness to the incident and refused to join investigation. He further deposed that incident had taken place in front of house of one Pramod, however, he could remember as to till how many floors the house of Accused Pramod was constructed. He further deposed that width of street where the incident had happened was about 10-15 ft and that he left the spot alongwith rukka at 07:10 pm. He denied the suggestion of Ld. Counsel for the Accused that no quarrel had taken place between Accused Pramod and Accused Sherpal at any point of time or that he did not see any incident committed by the Accused persons causing disturbance to commuters in the street or endangering public peace.
5.2 PW-2 IO/SI Satyabir Singh: He deposed that on 23.10.2011 upon receiving DD no.26A, he alongwith Ct. Ajay went to the spot i.e. House no.730, Gali no.11, Ashok Nagar, Delhi, where he came to know that persons namely Ashok Kumar and Sherpal were fighting in the street where public persons were gathered. He further stated that he saw that Accused persons were scuffling and abusing with each other and thereby creating FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 4 of 12 nuisance and disturbing public peace and causing traffic jam on the road. He further deposed that he alongwith Ct. Ajay Malik controlled the said Accused persons and took them to GTB hospital for medical examination in PCR Van. He added that thereafter, he prepared tehrir Ex.PW2/A and handed over the same to Ct. Ajay Malik for registration of FIR who accordingly complied with and came back to the spot alongwith copy of FIR and original rukka. He stated that thereafter, he prepared the site plan Ex.PW2/B and arrested as well as personally searched the Accused persons vide memos already exhibited as above. Thereafter, Accused persons were released on police bail as the offence was bailable in nature. He correctly identified Accused Sherpal in the court.
During his cross-examination by Ld. Counsel for the Accused, he failed to recollect the type and colour of clothes which were worn by Accused Sherpal at the time of incident. He further deposed that he reached at the spot at about 05:10 pm alongwith Ct. Ajay Malik on a motorcycle and distance between place of incident and the PS was about 500 meters. He admitted that when he reached at the spot, around 15-20 public persons were present at the spot and he asked public persons to join the investigation, however, they refused to join the same but he did not give any notice to them due to shortage of time. He further deposed that he did not know who is the owner of the house No.730, Gali No.11. He admitted that he did not mention in the Rukka about any particular word of abuse used by both Accused persons at the spot. He also stated that when he reached the spot, none of the public persons told him that they were frightened FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 5 of 12 because of the fight of the Accused persons. He stated that he did not see any of the Accused persons using fists and blows. Lastly, he denied the suggestion that Accused persons were not fighting with each other or that the present case was registered at the instance of Accused Pramod.
5.3. It is pertinent to mention here that apart from the above two witnesses, two other witnesses were mentioned in the list of witnesses filed by the Prosecution i.e. the DO who had registered the FIR and the doctor who had conducted the MLC of the Accused persons. Vide separate statement of Accused Sherpal recorded u/s 294 Cr.P.C. on 16.02.2024, Accused admitted the registration of FIR no.416/2011 PS Jyoti Nagar i.e. Ex. A1 and MLCs no.B6172/11 and B6169/2011 i.e. Ex.A2(colly). Accordingly, witnesses namely DO/ASI Krishan Chander and Dr. Subhash, GTB Hospital, were dropped from the list of witnesses.
Consequently, Prosecution Evidence was closed.
6. After completion of the Prosecution evidence as abovementioned, statement of the Accused Sherpal was recorded under Section 313 Cr.P.C. on 16.02.2024 itself wherein the incriminating circumstances appearing against him in Prosecution evidence were put to the Accused. Accused denied the allegations and pleaded false implication. However, despite opportunity, Accused preferred not to lead any defence evidence.
7. Accordingly, matter was taken up for hearing of final arguments which were duly addressed by Ld. APP for the State as well as Ld. Counsel for the Accused.
FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 6 of 12 It is contended by the Ld. APP for State that the Prosecution has been able to prove the charge against the Accused by uniform and consistent testimonies of Prosecution witnesses and therefore he is liable to be convicted for offence charged. It was argued that just because the witnesses are police witnesses, their testimonies cannot be discarded.
Per contra, Ld. Counsel for the Accused refuting the allegations stated that a false case has been hoisted against the Accused and therefore, there are no public witnesses to the case despite the allegation that offence in question happened at a public place. In continuation of his argument, it was argued by Ld. Defence Counsel that all the Prosecution witnesses are police officials, who could conveniently level allegations against the Accused without meeting the standard of proof required in a criminal case. Thus, it was argued that Accused deserves to be acquitted in the present case.
8. Submissions have been heard. Record has been carefully perused.
Decision and brief reasons for the same:
9. At the outset, before proceeding further on to discussing the weight and relevancy of evidence led by the Prosecution, this court deems it appropriate to first highlight the cardinal principles of Criminal Jurisprudence, i.e. one, that the Accused is presumed to be innocent unless proved guilty and two, that the burden upon the Prosecution lies to the extent of proving the guilt of the Accused beyond all reasonable doubts. Thus, it is incumbent upon the Prosecution to prove all the ingredients FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 7 of 12 which constitute the offence so that all reasonable doubts in the case of the Prosecution are removed. It may be noted that strongest of suspicion upon the Accused, does not lead to the guilt of the Accused. Thus, keeping in view the above stated aspects and principles of criminal jurisprudence this court shall proceed to decide upon the innocence or guilt of the Accused.
10. The case at hand pertains to the offence u/s 160 IPC titled as Punishment for Committing Affray which provides as follows:
Whoever commits an affray, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both.
As to what constitutes the offence of Affray has been provided under section 159 IPC in the following words:
When two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an affray".
Thus, from the bare reading of the definition of the offence, it comes forth that in order to complete this offences, following essentials must be complied with:
(a) Two or more persons must be involved;
(b) The said persons must have been fighting in a public place; and
(c) There must be disturbance caused to the public peace.
This clearly implies that mere fight between two persons shall not constitute the offence of Affray unless there is ensuing FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 8 of 12 disturbance to public peace. Further, it is essential that the fighting must have taken place at a public place.
At this stage it is pertinent to make note of the judgement titled as Jagannath Sah Vs. King Emperor [1936 SCC OnLine Oudh CC 28] wherein elucidating upon the offence of Affray, it has been held that:
The question for consideration is whether, under the circumstances, the case falls under S. 160 of the Penal Code, 1860. The word "affray" is defined in S.
159. It means that when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. There is a difference between an "affray" and an "assault". In my opinion the offence of affray, as defined in S. 159 of the Penal Code, 1860, postulates the commission of a definite assault or a breach of the peace; mere quarreling or abusing in a street without exchange of blows is not sufficient to attract the application of this section.
Furthermore, in the case titled as Puran Chand Vs. The State [1963 SCC OnLine P&H 105] it has been held as follows:
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.
In view of the above, it is amply clear that mere exchange of words or even abuses without exchanging actual blows, whether successfully or not, shall not complete the offence of affray.
FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 9 of 12
11. Coming now to the facts of the case at hand, it is manifest from the reading of evidence in the light of the legal aspects discussed above that the case of the prosecution does not stand established against Accused Sherpal.
11.1. No public witness: As already discussed above, disturbance of public peace is a pre-requisite for completion of the offence of affray. This implies that presence of a public witness is essential to the case. In the case at hand, no public witness has been produced by the IO despite admitting that there were 15-20 persons present at the spot when he reached there. This becomes a major shortcoming in the Prosecution case.
At this stage, it is also crucial to observe that IO has deposed to the effect that he asked public persons present at the spot to be the part of investigation, however, none agreed stating that Accused persons fight on daily basis. This clearly implies that the said public persons must be residing in the vicinity of the Accused persons and must be known to them and thus, easily traceable. However, despite this fact, no notice has been served to any of the public persons by the IO who refused to join the investigation stating that there was shortage of time.
Considering the above facts, it comes out that there was no lack of time and opportunity with the IO to associate some independent witnesses with the case. Merely mentioning that public persons were requested to join the investigation is of no avail. Name of those persons are not mentioned. It is not mentioned as to what action was taken against those persons who refused to join the investigation.
The above stated observation of this court is fortified by the observations of the Hon'ble Supreme Court of India in FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 10 of 12 Hemraj vs. State of Haryana (AIR 2005 SC 2110) wherein it has been held that:
"The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
Further, in the judgment titled Roop Chand vs State of Haryana [1990 CCC 3] it was held as under:
"When some witness from the public was available the explanation furnished by the Prosecution that they refused to join the investigation, the same is wholly unsatisfactory, particularly when the IO did not note down the names and addresses and did not take any action against them''.
11.2 No substantial proof of fists/blows:
IO has himself stated in his testimony that he did not see any of the Accused using fists and blows implying that there was no physical fight between the Accused. Also, IO has nowhere in the entire investigation nor during trial mentioned even a single abusive word used by the Accused persons. Thus, even if the testimony of the IO is considered to be solely reliable not requiring any corroboration of a public witness, still it does not prove the guilt of the Accused for commission of the alleged offence of affray.
At this stage, a recent decision of Hon'ble Punjab and Haryana High Court in the matter titled as Upmanyu & Ors vs. State of Haryana [2023:PHHC:151949] is highly relevant wherein it has been held that:
There is nothing on record to show that the accused successfully or even otherwise exchanged any blows FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 11 of 12 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.
12. Thus, from the above discussion itself, there remains no scope of doubt that Prosecution has failed to discharge its burden of establishing the guilt of the Accused beyond all reasonable doubts. Merely by establishing a quarrel between two persons, Prosecution cannot expect to discharge its burden for the offence of affray unless disturbance of public peace coupled with actual fighting in public place is established.
Conclusion
13. Therefore, keeping in view the overall conspectus of the case and in view of the facts and evidence discussed above, this court is of the considered view that Prosecution has failed to discharge the burden imposed upon it by law of proving the guilt of the Accused beyond reasonable doubts. In these circumstances, this court has no hesitation that Accused Sherpal is not guilty for the offence u/s 160 IPC and thus, acquitted for the same. Digitally signed by VIDHI VIDHI ANNOUNCED IN THE OPEN GUPTA GUPTA ANAND Date:
ANAND COURT ON 16.02.2024 2024.02.16 18:23:44 +0530 (Vidhi Gupta Anand) CMM/SHD/KKD Courts/Delhi [This judgment contains 12 signed pages] [This judgment has been directly typed to dictation.] FIR No.416/11 PS Jyoti Nagar titled as State vs. Pramod Kumar etc. Page No. 12 of 12