Delhi District Court
State vs Rajesh Kumar Srivastava And Ans on 20 February, 2025
IN THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presided over by - Ms. Medha Arya, DJS
Cr. Case No. : 2486/2022
FIR No. : 315/2020
Police Station : Saket
Section(s) : 160 IPC
In the matter of -
STATE
Vs.
i) Rajesh Kumar Srivastava
S/o Sh. Suraj Narayan
R/o KM 31/1005, Sector 134
Noida (UP)
ii) Prithvi Raj Dua
S/o late Sh. Om Prakash
R/o Flat no. 60, Punjabi Bagh West
New Delhi .... Accused
1. Name of Complainant : ASI Hariman Lal
Rajesh Kumar Srivastava
2. Name of Accused :
Prithvi Raj Dua
3. Offence complained of or proved : 160 IPC
4. Plea of Accused : Not guilty
5. Date of commission of offence : 27.10.2020
6. Date of Filing of case : 04.04.2022
7. Date of Reserving Order : 14.02.2025
8. Date of Pronouncement : 20.02.2025
9. Final Order : Acquitted
State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 1 of 9
Argued by - Ld. APP for the State.
Ld. LAC and Ld. LADC for respective accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
FACTUAL MATRIX -
1. Briefly stated, it is the case of prosecution that on 27.10.2020 at about 10:25 AM, outside Court no. 502, 5th Floor, Saket Court Complex, New Delhi, within the jurisdiction of PS Saket, accused Raju Srivastava S/o Sh. Suraj Narayan and Prithvi Raj Dua S/o late Sh. Om Prakash, started fighting with each other at a public place, and by doing so, they caused annoyance to the public and disturbed public peace, and thereby committed an offence punishable u/s 160 IPC.
2. After investigation, charge-sheet was filed against both the accused. Cognizance was taken, and accused were summoned to face trial. Copy of charge-sheet was supplied to them in compliance of Section 207 CrPC. Thereafter, formal notice in terms of Section 251 CrPC was served upon them for the offence punishable u/s 160 IPC, to which they pleaded not guilty, and claimed trial. Proceedings then progressed to the stage of PE.
3. Prosecution examined two witnesses in support of its case:
Witness Name Nature of testimony PW1 SI Hariman The IO. He deposed that on 27.10.2020, on receipt of a PCR call regarding a fight State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 2 of 9between two people outside Court no. 502, 5 th Floor, Saket Court, New Delhi, he along with Ct. Ramvilas reached at the place of incident.
He enquired the matter from the guards and other public persons present in the Court, and came to know that the two persons who were fighting, were taken to Pt. Madan Mohan Malviya Hospital by the PCR. Vide DD no.
30A and 31A, PW1 received information of the MLC of both the accused namely, Rajesh Kumar Srivastava and Prithvi Raj Dua, and collected their MLC. PW1 testified regarding preparation of rukka Ex PW 1/A, arrest and personal search memos of both the accused Ex PW1/B, Ex PW1/C, Ex PW1/D & Ex PW1/E. He correctly identified both the accused. He was duly cross-examined by the ld. defence counsel.
PW2 HC Ramvilas He reiterated the version of IO/PW1. He correctly identified both the accused. He was duly cross-examined by the ld. defence counsel.
4. Both accused admitted, as per Section 294 CrPC, the endorsement made by the DO Ex A1, the genuineness of the subject FIR Ex A2, and GD no. 20A dated 27.10.2020, Ex A3. In view of the same, the corresponding State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 3 of 9witnesses, all formal in nature, were dropped from the list of witnesses to be examined.
5. Statements of both the accused were then recorded u/s 313 CrPC. In his statement recorded u/s 313 CrPC, accused Prithvi Raj Dua stated to the Court that on the relevant day, he was attacked by accused Rajesh and his son, as a result of which he sustained injuries, and his false tooth also came out lose. Accused Rajesh Kumar Srivastava stated that on the relevant day, while he was waiting for his matter to be called out, which was listed for hearing in Court no. 502, Saket Court Complex, he was beckoned by Prithvi Raj Dua on the pretext that he wants to settle the matter, and then he was attacked by accused Prithvi Raj Dua, because of which he sustained injuries, and fainted. Both the accused stated that they have been wrongly implicated in the case. Both of them opted to not lead any DE in the affirmative.
6. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record perused. Considered.
7. Before proceeding further, it shall be apposite to lay down the relevant provision of law. Section 160 IPC prescribes for punishment of the offence of affray. The offence itself is defined in Section 159 IPC. As defined in Section 159 IPC, the offence of an affray is committed by two or more persons fighting in a public place, which results in disturbance of public peace. As is clear from bare perusal of Section 159 IPC, the chief ingredients of the offence of affray are -
State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 4 of 9i) There must be a fighting between two or more people. It is pertinent to note that the word used in the provision is fighting, and not merely quarreling. A verbal exchange of hot words is not fighting, thus.
ii) The fighting must take place at a public place.
iii) That the fighting must result in disturbance to public peace.
8. In order to understand the contours of the offence of affray, reliance can be gainfully placed on the judgment of the Hon'ble High Court of Madras titled Ramakudumban and Ors. Vs. Unknown, AIR 1950 MAD 408, wherein it has been held that "A war and an affray both require two sides fighting. Passive submission to beating by the other side will not do. Nor will mere howling in pain do. An answering challenge or war cry or even an active non-violent resistance might have done. He never resisted back violently or non-violently. This washerman was incapable of that. I, therefore, set aside the convictions and sentences of the petitioners, acquit them, and direct the fines to be refunded to them. I consider a retrial of the petitioners for an offence under Section 352 or Section 323, Penal Code in this petty case unnecessary." It is clear from bare perusal of the said law that in order to constitute the offence of affray, it has to be established that both the parties had indulged equally in fighting, which resulted in disturbance of public peace. Merely because one person attacked the other, and the other succumbed to the injury, or howled in pain, will not constitute the offence of affray.
State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 5 of 99. Similarly, in Selvaraj Vs. The State, 2005 (1) MWN (Cr.) 107, it was held by the Hon'ble High Court of Madras as under:
"6. In the instant case, the petitioners are shown as A Party and the opposite party namely one Jothimani and Samboornam were shown as B Party. It is pertinent to point out that the occurrence has taken place in the house of the petitioners, and thus, it was not in a public place. The members, who constituted the B Party, have gone to the house of the petitioners and have attacked them, and they were found to be the aggressors. If to be so, there was no fighting between the parties, since the fighting would mean and connote a contester's struggle between two or more persons against one another. Thirdly, there was nothing available to indicate that there was disturbance of public peace, and thus, in the instant case, all the three ingredients which were necessary to constitute affray, were absent. In view of the same, it cannot be stated that the charge sheet filed under Sec. 160 of IPC alleging that there was a fight between A and B Party was correct."
10. From the conspectus of above judgments, it is clear that the offence of affray can only take place when there is a competing war between two fractions or two persons, and to bring home the guilt of the accused for the offence punishable u/s 160 IPC, the prosecution is required to establish fighting between two people or two opposing factions, in a public place.
11. Facts of the case shall be analyzed through the prism of the legal position enunciated above. In the case at hand, it is the case of prosecution that a fight took place between both the accused persons outside Court no. 502, Saket Court Complex. In as much as the said place constitutes a public place, there is no dispute. The first ingredient of the offence alleged stands established against the accused. However, prosecution failed to establish other ingredients of the offence.
State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 6 of 912. The prosecution has only examined two witnesses, PW1 SI Hariman and PW2 HC Ramvilas. Both of the witnesses stated that they reached the spot of the incident after receiving a PCR call regarding fighting between two people. Both of them testified that they interrogated regarding the matter from the Court and other public persons present in the Court, and thereafter, got to know that the two people who were fighting had been taken to Pdt. Madan Mohan Malviya Hospital by the PCR. Both of the witnesses testified that they collected the MLCs of the accused and returned back to the police station where the accused were already present, and upon seeing them, they started fighting again. From the testimonies of the two witnesses, it is clear that none of them are eyewitnesses to the incident. They had reached the spot of the incident after the same had gotten over, and the accused had already been taken to hospital for their respective treatments. As such, none of them could prove that the accused had indulged in fighting. Pertinently, in their submissions, recorded u/s 313 CrPC, both the accused have given a diametrically opposite version of how the incident unfolded. Both of them have described themselves to be the victims in the offence, and have shifted onus regarding the genesis of the incident on the other party. They have both claimed to be victims of aggression. In such circumstances, it was the burden of prosecution to prove as to how the incident itself unfolded, and that it was a fight between two people, instead of an attack by one upon the other. No investigation is seen to have been conducted in the present case by the IO to find out the genesis of the fight, find out if who was the aggressor, and who had attacked the other party out of the two accused. Instead, shortcut approach was adopted by the IO, who filed a charge sheet against both the accused for the offence State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 7 of 9punishable u/s 160 IPC. Neither any public witnesses have been examined by the IO to ascertain the exact cause of the fight, nor any such witnesses have been named in the charge sheet. The evidence presented on record by the prosecution is woefully inadequate to reach the conclusion that both the accused persons were fighting with each other in a public place.
13. The MLCs of both the accused show that both of them sustained injuries, but only basis the MLCs, it is difficult to reach the conclusion that there was a fight at the public place and one of the accused had not attacked the other. Injuries could have been sustained by either one of them while warding off the attack from the other. Lack of any investigation made to ascertain the cause of the incident, makes the case of the prosecution replete with gaps and doubts.
14. The version of prosecution is that fight had taken place between the two accused in a public place. The witnesses examined by the prosecution both deposed that they had conducted enquiry from the guard as well as the litigants present at the spot, but no cause or reason disclosed on the record, neither the guards nor the other litigants have been made as witnesses to the case to show that a fight had taken place between the accused at the relevant time, which resulted in breach of public peace.
15. In view of the fact that the evidence led on record by the prosecution is inadequate to reach the conclusion that neither of the accused was the aggressor and had attacked the other, and that they had in fact been fighting State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 8 of 9in a public place, both the accused deserve the benefit of doubt. They are accordingly acquitted of the offence punishable u/s 160 IPC.
16. File be consigned to Record Room after due compliance with Section 437A CrPC.
Digitally
signed by
Pronounced in open Court on Medha Medha Arya
Date:
20.02.2025. Arya 2025.02.22
15:23:32
+0530
(Medha Arya)
Additional Chief Judicial Magistrate
South District, Saket Courts, New Delhi
20.02.2025
State vs. Rajesh Kumar Srivastava & Anr.
FIR No. 315/2020, PS: Saket Page 9 of 9