Delhi District Court
State vs . Hari Sankar on 22 November, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-02, EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Vinod Joshi, DJS
State Vs. Hari Sankar
FIR No. 326/2013
PS. Geeta Colony
U/s. 160 IPC
JUDGMENT
1) CIS No. of the case : 6736/2016
2) The date of commission of offence : 22.07.2013
3) The name & parentage of accused : (1) Hari Shankar,
S/o Gendha Lal
(2) Vijay Narula,
S/o Sh. Bal Kishan
(Already Convicted in
Plea Bargaining Court
vide order dated
28.05.2014)
5) Offence involved : 160 IPC
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 22.11.2021
Date of Institution : 16.01.2014
Judgment reserved on : 04.10.2021
Judgment announced on : 22.11.2021
BRIEF STATEMENT OF REASONS FOR DECISION:
01. The present case was registered with the allegations that on 22.07.2013, at about 09:50 PM, outside House No. B-16, Rani Garden, Delhi, accused persons namely Hari Shankar and Vijay Narula (already convicted before plea bargaining court), were found fighting in a public place, thereby disturbing the public peace and hence they have committed 'Affray' , punishable under Section 160 IPC.
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02. Upon completion of investigation, charge sheet for the offence punishable U/s 160 IPC was filed on behalf of the IO and the accused persons were consequently summoned. Perusal of file reveals that accused Vijay Narula has already been convicted by Plea Bargaining Court vide its order dated 28.05.2014. Accordingly, a formal notice for commission of offence punishable U/sec. 160 IPC was framed against the remaining accused Hari Shankar by the Ld. Predecessor, to which he pleaded not guilty and claimed trial.
03. In order to prove the allegations against the accused, the prosecution has examined three witnesses.
04. PW-1, Duty Officer HC Suraj Bhan, deposed that on 23.07.2013, he had received a rukka through Ct. Mahender which was sent by HC Navneet (perusal of record shows that it being written as 'Vineet' due to typographical error, as the name of IO is HC Navneet, which is not disputed) . He deposed that he made endorsement on the rukka, Ex. PW1/A and registered FIR no. 326/2013 on the basis of said rukka. He also proved the FIR Ex. PW1/B. He further deposed that after the registration of case, he handed over the copy of FIR and original rukka to Ct. Mahender for further handing over to HC Vineet.
05. PW-2 HC Navneet Singh that deposed that on 22.07.2013, one PCR call vide DD no. 36A regarding quarrel was marked to him for necessary action. Thereafter, he along with Ct. Mahender and Ct. Pradeep visited the spot i.e. B-16, Rani Garden, Geeta Colony, Delhi and saw a crowd in the gali. When they entered in the crowd, they saw that two persons were fighting and quarreling with each other. He with the help of fellow police officials, separated them and pacified the matter. Thereafter, he had informed about the incident to the SHO concerned, who directed to proceed as per law. The abovesaid two persons were constantly quarreling and fighting with each other and considering the circumstances, he prepared a Tehrir under Section 160 IPC Ex. PW2/A and handed over the same to Ct. Mahender for getting the FIR registered through the Duty Officer. He came to know the names of the accused persons as Hari Shankar and Vijay Narula FIR No. 326/13 State Vs Hari Shankar 2 of 6 (already convicted). Ct. Mahender returned to the spot back after sometime along with copy of FIR and rukka from the PS. He arrested the accused persons vide memos Ex. PW2/B and Ex. PW2/C and conducted their personal search vide memos Ex. PW2/D and Ex. PW2/E. The accused persons were got medically examined at SDN Hospital and prepared their MLCs Ex. PW2/F and Ex. PW2/G. The accused persons were released on police bail, being the offence bailable one. PW2 has identified the site plan Ex. PW2/H and identified his signature at point A on it. He deposed that he recorded the statements of witnesses and prepared the charge-sheet and filed the same in the Court. PW2 correctly identified the accused Hari Shankar in the Court.
06. PW3 Ct. Mahender Singh has deposed on the similar lines as deposed by PW2 HC Navneet Kumar and hence, his statement is not required to be reproduced here for the sake of brevity.
07. After prosecution evidence, the PE was closed. Statement of accused Hari Shankar U/sec. 313 Cr.P.C r/w 281 CrPC was recorded wherein he refuted the allegations levelled against him in toto and submitted that he is innocent and has been falsely implicated. Accused chose to lead evidence in defence and examined himself as DW1 and other witness DW2 Sh. Hansraj @ Rohit.
08. DW1 Hari Shankar (accused herein) has deposed that on 22.07.2013, he was parking his motorcycle in front of his residence i.e. House No. E-5, Rani Garden and meanwhile, Balkishan Narula asked him to park the motorcycle somewhere else. DW1 further deposed that when he insisted to park his motorcycle at the same place, the said Balkishan Narula started abusing him and in the meantime, his son namely Vijay Narula also came out from his house and hit DW1 through iron pipe. He got injured and blood started oozing out from his head. He deposed that Jija of Vijay Narula, namely Deepak Batra, also came there and hit him through stick. Police arrived at the spot as someone had called the PCR. He further deposed that he was taken to the hospital and the police has falsely implicated him in the present case. He also deposed that he was feeling very sick on the next day FIR No. 326/13 State Vs Hari Shankar 3 of 6 on 23.07.2013 and he went to Hedgewar Hospital for treatment. DW1 was cross-examined by Ld. APP for the State.
09. DW2 Sh. Hansraj deposed that he was having a juice shop in the name & style of "Cool Hut" at a distance of 500 meters from the place of the incident. He deposed that on 22.07.2013, at about 09:30 PM, he had gone to purchase ice from his shop to Rani Garden. He heard some noise in the gali and saw that accused Hari Shankar had suffered injuries on his head and 02-03 persons were beating him. He deposed that he could identify the assailants by their faces but he did not know their name and in the meantime, a PCR van had arrived and he along with accused Hari Shankar were taken to the PS in the same van. After sometime, the three assailants were also brought to the PS by the Police and thereafter, both the parties were taken to the Hospital for medical examination and he returned to his home. This witness has also been cross-examined by Ld. APP for the State.
10. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.
11. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
12. In the instant case, the Ld. APP has argued that in view of categorical testimony of the witnesses, the offence alleged against the accused stands established and the accused deserves to be convicted.
13. It is submitted by Ld. Defence Counsel that the accused has been falsely implicated. It is further submitted that the police did not bother to make any public person, a witness the incident despite there being presence of public persons at the spot.
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14. From material on record and the evidences of the witnesses recorded I am of the opinion that there are loopholes in the story of prosecution which has been left unplugged and accordingly, the case of the prosecution fails for the reasons discussed below.
15. Despite public witnesses being available at the spot, as revealed from the testimonies of of PW- 2 and PW-3, no efforts seem to have been made to make them join the investigation. The IO, PW-2, during his cross examination has stated that there was no sufficient time to record the statement of public witness, while PW-3 has stated that despite asking by the IO, none came forward to give any statement. Even if, the public witnesses had refused to join the police raiding party despite request, as stated by PW-3, during his cross examination, I.O at least should have reduced their names and addresses in writing if not inclined to take action against them under section 187 I.P.C. Absence of the efforts have introduced an element of doubt in the case of prosecution.
16. In Roop Chand Vs. State of Haryana 1989 (2) RCR 504 it was held that where the IO has failed to even note down the names and addresses of the persons who have refused to join as public witnesses, coupled with the fact that no action was taken against them, the case is rendered doubtful.
17. Affray has been defined by section 159 IPC. It provides as when two or more persons, by fighting in a public place, disturb the public peace, they are said to "commit an affray". Section 160 provides "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".
18. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, FIR No. 326/13 State Vs Hari Shankar 5 of 6 (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
"Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted)."
19. Moreover, in the present case, the testimony of DW-1 and DW-2 raises questions upon the chain of events put forward by the prosecution. This, coupled with the fact that no public witness has been brought forward further makes the version of prosecution questionable.
20. 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. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution is required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
21. Prosecution is under legal obligation to prove each and every ingredient of the offence alleged against the accused beyond any reasonable doubt. Suspicion how so ever strong it may be, cannot replace the standard of proof required to establish the guilt of the accused. In the present case, the prosecution has failed to discharge its onus. The evidence available on record is not sufficient to substantiate the guilt of the accused. Accordingly the accused Hari Shankar deserves acquittal.
Ordered accordingly. Digitally
signed by
Vinod Vinod Joshi
Date:
Announced in open court
Joshi 2021.11.22
17:22:51
(VINOD JOSHI)
+0530
on 22nd November, 2021 MM-02(East)/KKD Courts/Delhi
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