Delhi District Court
State vs Santosh Kumar Gupta on 29 November, 2025
IN THE COURT OF MS VASUNDHARA AZAD, CJM, WEST,
TIS HAZARI COURTS, DELHI
CNR No. DLWT02-010532-2023
State Vs. Santosh Kumar Gupta & Anr.
FIR No. : 362/2022
Police Station : Kirti Nagar
Under Section : 160 IPC
Date of institution : 03.07.2023
Date of pronouncement : 29.11.2025
JUDGMENT
a) Cr. Cases number of the case 5997/2023
b) Date of commission of offence 16.05.2022
c) Name of the complainant HC Vijay Kumar
d) Name, parentage and address of the (1) Santosh Kumar Gupta accused S/o Sh. Ganesh Gupta R/o 373C, 510, T-Huts, Kamla Nehru Camp, Kirti Nagar, West Delhi.
(2) Shera Kumar S/o Sh. Bijli Paswan R/o A-210, Chunna Bhatti, Kirti Nagar, West Delhi.
e) Offence complained of 160 IPC State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.1/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date: 2025.11.29 16:56:25 +0530 f) Plea of the accused Pleaded Not guilty g) Final order Acquitted
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Briefly stated, it is the case of prosecution that on 16.05.2022 at around 8:50 PM, at main Road, DSIIDC Complex, Kirti Nagar accused Santosh Kumar Gupta and accused Shera Kumar were fighting and disturbing public peace and thus, both of them are guilty of having committed the offence of affray punishable U/s 160 IPC.
ACCUSATION AGAINST THE ACCUSED
2. Vide order dated 03.09.2025 of this court, notice for offence under Section 160 IPC was framed against accused Santosh Kumar Gupta and accused Shera Kumar, to which they pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
3. In order to prove its case against the accused, the prosecution in all examined 01 witness, viz.
a. PW-1 ASI Vijay Kumar, who has deposed that on 16.05.2022, when he was on patrolling duty with Ct. Davender near DSIIDC Complex, they saw accused Santosh Kumar Gupta and accused Shera Kumar Paswan fighting and loudly abusing each other and as such they were causing disturbance to public peace. PW-1 has further deposed that he apprehended both the accused persons, State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.2/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date: 2025.11.29 16:56:30 +0530 rukka (Ex. PW-1/A) was prepared by him upon which FIR (Ex A-2) was registered and site plan (Ex.PW1/B) was prepared. PW-1 has further deposed that during investigation of the present case, both the accused persons were arrested vide memos Ex.PW1/E and Ex.PW1/F and thereafter released on police bail. PW-1 correctly identified both the accused persons in court. PW-1 was duly cross- examined by the counsel for the accused and thereafter discharged.
4. It is noted that as per statement of both the accused persons recorded (under Sec. 294 Cr.PC/330 of BNSS) on 24.11.2025 the following documents were admitted by the accused:-
S. Exhibits Documents
no.
1. Ex. A-1 DD No. 99A dated 16.05.2022
2. Ex. A-2 and Ex. A-3 Copy of FIR No.362/2022 PS
respectively Kirti Nagar along with certificate
under Sec. 65B of Indian
Evidence Act.
5. Since no more prosecution witnesses were pending examination, at request of Ld. APP for the State, prosecution evidence was closed and matter was fixed for recording statement of the accused persons U/s.313 Cr.P.C.
STATEMENT / DEFENCE OF THE ACCUSED
6. In their examination under Section 313 CrPC., both the accused persons have denied the entire evidence put to them and opted not to State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.3/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2025.11.29 16:56:35 +0530 lead DE. Thereafter, DE was closed.
ANALYSIS AND FINDINGS
7. Final arguments advanced by Ld. APP for State and Ld. Counsel for accused persons heard. Case file perused carefully.
8. It is argued by Ld. APP for State that accused persons were fighting and abusing each other at a public place and were disturbing the public peace and as such have committed the offence of affray.
9. On the other hand, it is argued by Ld. counsel for the accused persons that prosecution has miserably failed to prove its case as there is nothing on record to show that the guilt of the accused persons. There are no public witness to substantiate the commission of the offence and hence, accused persons be acquitted.
10. The entire case of the prosecution is based on the allegation that both the accused persons were fighting and abusing each other in a public place and as such disturbing the public peace.
11. Section 159 of Indian Penal Code, 1860 defines the offence of 'affray 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 of Indian Penal Code, 1860 provides that "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".
State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.4/9
Digitally signed
by
VASUNDHARA
VASUNDHARA AZAD
AZAD Date:
2025.11.29
16:56:43
+0530
12. Therefore, for an act to constitute the offence of 'affray' it is essential that the fight between the persons concerned should have taken occurred in a public place and it should have disturbed public peace. As per the testimony of PW1 ASI Vijay Kumar, it is clear that the fight between the accused persons occurred in a public place. However, it has been specified by PW1 ASI Vijay Kumar that he did not examine any witness who had attempted to stop the accused persons from committing the alleged offence. No reason has also been specified by IO as to why he did not join public persons who were present at the spot in investigation.
13. IO was under obligation to issue notice in writing to the public persons, who refused to join the police investigation particularly in the background when the accused persons had already been apprehended by the police. IO has not even placed on record the names of the passersby who were asked to join the investigation and neither have any reasons been mentioned by the IO for refusal by the people who were approached to join the investigation. In the facts and circumstances of the case, it is observed that police has not made sincere effort to join independent public witnesses during investigation. Reliance is placed on 'Anoop V/s State', [1992 (2) C.C. Cases 314 (HC)], wherein Hon'ble High Court of Delhi observed :
"18 It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant.
State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.5/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2025.11.29 16:56:48 +0530 In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC ."
14. In light of the aforesaid, the omissions/ failure on the part of investigating agency to join independent public witnesses create reasonable doubt in the prosecution story.
15. It is a well settled proposition that non-joining of public witness shrouds doubt over the fairness of the investigation by police. This Court is, however, conscious that the prosecution case cannot be thrown out or doubted on the sole ground of non- joining of public witnesses as public witnesses generally keep themselves away from the Court unless it is inevitable, as has been held in ' Appabhai and another v. State of Gujarat', [1988 SC 696]. However, in the present case, it is not only the absence of public witnesses which raises a doubt on the prosecution version but there are other circumstances too, as discussed hereinafter, which raise suspicion over the prosecution version.
16. For instance, it is observed that no evidence of any arrival/departure entries of PW-1 ASI Vijay Kumar when he left PS Kirit Nagar for patrolling duty along with Ct. Devender has been led by the prosecution. No such entries have been filed along with the charge-sheet. The departure/arrival entry is a substantial piece of evidence to corroborate the version of the witness. Police officials are under a statutory duty to mark their departure and arrival in the register kept in the police station for the State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.6/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2025.11.29 16:57:03 +0530 purpose as per the Punjab Police Rules. Chapter 22 Rule 49 of the Punjab Police Rules, 1934 which reads as under:
"22.49 Matters to be entered in Register No. II The following matters shall, amongst others, be entered: ***
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal"
17. PW-1 ASI Vijay Kumar has not tendered any such entry into evidence to corroborate his stand. In this regard, reliance is placed by this court on the judgment of Hon'ble High Court of Delhi in 'Rattan Lal vs. State' [1987 (2) Crimes 29], wherein it has been held that ;
"...if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive. This failure to bring on record, the DD entries creates a reasonable doubt in the prosecution version and attributes oblique motive on the part of the prosecution..."
18. Therefore, non-production of DD entries to prove that the witness was on patrolling duty on the date of incident, throws a doubt on the presence of the witness at the place of incident.
19. Undoubtedly, the essential requirement of the offence of affray' alleged to be committed by the accused persons has not been proved State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.7/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2025.11.29 16:57:08 +0530 by prosecution. There are several lacunae in the prosecution case which remained open till the end of trial. As already mentioned above, the onus is on the prosecution to prove the guilt of the accused beyond all reasonable doubts. On the basis of mere allegations, the accused persons cannot be held liable for the alleged offence.
CONCLUSION
20. The fact that no independent witness was cited or examined and that there are no arrival/departure entries of prosecution witness who apprehended the accused persons, casts a cloud of suspicion over the prosecution version.
21. In criminal jurisprudence the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
22. Thus, this Court is of the considered opinion that the benefit of doubt ought to be granted to the accused persons, who are entitled to be exonerated of the charges against him in the present case. The accused persons hereby acquitted of the offence punishable under Section 160 IPC.
State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.8/9 Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date:
2025.11.29 16:57:13 +0530 Let digitally signed copy of this judgment be uploaded on the district court website.
Announced in open Court on 29.11.2025. Digitally signed by VASUNDHARA VASUNDHARA AZAD AZAD Date: 2025.11.29 16:57:18 +0530 (VASUNDHARA AZAD) Chief Judicial Magistrate, West District Tis Hazari Courts, Delhi /29.11.2025 State Vs. Santosh Kumar Gupta FIR No. 362/2022 PS Kirti Nagar Page no.9/9