Delhi District Court
State vs . Satish Sharma & Ors on 7 January, 2021
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
MAGISTRATE06, SOUTH EAST DISTRICT, SAKET COURTS, NEW
DELHI
STATE VS. Satish Sharma & Ors
FIR NO: 319/2011
P. S Kalkaji
U/s 160 IPC
Crc No./93157/2016
JUDGMENT
Sl. No. of the case : 259/2
Date of its institution : 17.09.2011
Name of the complainant : Sh. ASI Krishan
Pal Singh, Belt NO.
2576/SE, Posted at PS
Kalkaji.
Date of Commission of offence : 10.09.2011
Name of the accused : 1. Sarvesh Bhardwaj, S/o
Sh. Gyan Chand, R/o H.
No. 755, Chirag Delhi.
2. Satish Sharma, S/o Sh.
Krishan Kumar Sharma,
R/o H. NO. 218, Suraj
Apartment, Pul Prahlad
Pur, New Delhi.
3. Deepak, S/o Sh. Inder
Sain, R/o H. NO. 512/D,
Chirag Delhi.
1
4. Sapan Bhardwaj, S/o
Sh. Gyan Chand, R/o R/o
H. No. 755, Chirag Delhi.
5. Laxmi Chand, S/o Sh.
Kishori Lal, R/o H. No.
429, Chirag Delhi.
6. Rahul Bhardwaj, S/o
Sh. Laxmi Chand, R/o H.
NO. 429, Chirag Delhi.
7. Mannu Sharma, S/o
Sh. Satish Sharma, R/o
H. NO. 218, Suraj
Apartment, Pul Prahlad
Pur, New Delhi.
(proceedings abated)
Offence complained of : 160 IPC
Plea of accused : Not Guilty
Case reserved for orders : 19.12.2020
Final Order : Acquitted
Date of orders : 07.01.2021
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused persons namely Satish Sharma, Mannu Sharma, Deepak, Sapan Bhardwaj, Rahul, Laxmi Chand, Sarvesh Bhardwaj for having committed the offence punishable u/s 160 of Indian Penal Code, 1861 (hereinafter referred as "IPC").
22. Briefly stated, it is the case of Prosecution that on 10.09.2011 a quarrel took place between two parties inside the premise of Kalkaji Mandir. Upon receiving the DD entry no. 18A dated 10.09.2011, the police officials went to the spot and tried to settle the matter. However, inspite of their intervention, the accused persons did not stop fighting with each other. Consequently, since the accused persons were fighting in a public place and thereby disturbing the public peace, they were arrested by the police officials. All the accused persons except Sapan Bhardwaj and Satish Sharma were sent for medical examination at ESI Hospital. Thereafter, rukka was prepared by IO K P Singh and was handed over to Ct. Arun Kumar for the purpose of registration of FIR. The FIR was registered u/s 160 IPC against the accused persons at around 05:15 PM on 10.09.2011.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, notice was framed against the accused persons vide order dated 15.03.2012 u/s 160 IPC, to which they pleaded not guilty and claimed trial. During the pendency of trial, accused Mannu Sharma passed away and proceedings against him were abated vide order dated 16.01.2018.
4. In order to prove the guilt of accused, the Prosecution examined following three witnesses:
Ct. Arun Kumar, Belt NO. 3458/SE, as PW1;
HC Bheem Singh, Belt No. 1241/SE as PW2, Duty Officer on 10.09.2011 at PS Kalkaji; and SI K P Singh, IO in the present as PW3;
5. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 04.08.2018. Thereafter, statement of all the accused persons were recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 18.10.2018 3 wherein they denied the allegations and claimed to have been falsely implicated. Defence evidences were lead on their behalf. Accused Sarvesh Bhardwaj and accused Satish Sharma examined themselves as DW1 and DW2 after filing application u/s 315 Cr.PC.
6. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.
7. PW1 in his evidence has stated in detail the alleged incident of fight which took place among the accused persons on 10.09.2011. He also gave a detailed account of arrest, medical examination and personal search of the accused persons. He further deposed that all the accused persons were released on police bail by IO. He correctly identified all the accused persons present in the court except accused Laxmi Chand.
8. PW2 in his testimony has proved the factum of registration of the present FIR. He deposed that rukka was handed over to him by Ct. Arun and on the basis of rukka, the present FIR NO. 319/2011 was registered on 10.09.2011 at about 05:15 PM. In his crossexamination, he deposed that certificate u/s 65 B of Evidence Act regarding the computer generated FIR was not generated. He further stated that he handed over the FIR to Ct. Arun Kumar at about 05:45 PM.
9. PW3 in this testimony has given a detailed account of the present incident wherein he saw the accused persons quarreling with each other. He further deposed that he tried his best to settle the dispute but they did not follow his request. Thereafter, he prepared rukka and handed it over to PW1 for the registration of FIR. He has conducted the investigation in the present case and filed the charge sheet before the court.
410. DW1 in his testimony deposed that he went to PS Kalkaji at the request of accused Satish Sharma in order to provide legal help to accused Mannu Sharma. When he reached at Police Station, DW1 deposed that he was hit by IO K P Singh. It further stated by DW1 that some arguments happened between IO K P Singh and accused Satish Sharma over the release of his son accused Mannu Sharma. During the argument, IO K P Singh slapped accused Satish Sharma at PS Kalkaji and thereafter to cover his illegal act, IO K P Singh falsely implicated the accused persons in the present case.
11. DW2 in his testimony stated that IO K P Singh asked the pujaris of Kalkaji Temple to meet SHO PS Kalkaji B S Rana. SHO in the garb of managing the bandobast of Navratra Bari demanded a bribe of Rs. 5 lakh from the pujaris. He further deposed that pujaris refused to pay the bribe and one of his uncle namely Late Sh. Ved Prakash made a PCR call regarding this which is Ex. DW2/1. DW2 further stated that on 10.09.2011 at around 12:30 PM IO K P Singh told them to meet the SHO in PS Kalkaji. He along with other pujaris to meet SHO and they were made to sit till 06:00 PM. He further stated that when he asked the IO K P Singh regarding the purpose then, IO abused him and assaulted him in the PS itself and at around 06:30 PM, he told that an FIR has been registered against him and other pujaris and thereafter they were arrested.
12. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused. Ld. Counsel for the accused further submitted that the PW1 and PW3 have made false statement on oath before the court and therefore, have committed perjury. It is further submitted 5 that the IO in the present case has filed similar false cases against the innocent person to extort money.
13. I have considered the rival submissions.
14. Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LAW INVOLVED IN THE PRESENT CASE
15. Section 159 of the IPC provides for the offence of affray . It reads as under:
"When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray."
16. The offence of affray is punishable u/s 160 IPC which provides for punishment of imprisonment upto 1 month or fine upto Rs. 100/ or both.
17. On bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute offence of affray.
a. There must be fight between two or more persons;
b. The fight must happen in a public place; and c. The fight must disturb the public peace.
Therefore, all these ingredients must be established by the prosecution in order to prove the guilt of the accused u/s 160 IPC. Reference can be taken from decision of Hon'ble Madras High Court in case of Selvaraj vs. State Crl. O.P. No. 1680 of 2005.
18. It should be noted that quarrelling in a public place is different from fighting in a public place. Persons may quarrel by abusing each other. There can be a quarrel without fighting. Reference can be taken from the decision of Hon'ble Kerala High 6 Court in the case of M. Korga Shetty and Anr Vs. State of Mysore 1971 Cri LJ 1041. Further, similar observation has been made in Ratan Lal's Law of Crimes (21 Edition) at page 392, wherein the Ld. Author observes as follows;
" The offence of affray postulates the commission of the definite assault or a breach of peace, and mere quarreling and abusing in the street without exchange of blows is not sufficient to attract the application of this section. Where two brothers were found quarreling and abusing each other at a public road and a large crowd gathered and the traffic was temporarily stopped, but no actual fighting took place, it was held that no affray was committed. "
FINDINGS
19. As discussed above, the most important ingredient which needs to be satisfied by the prosecution in order to bring home the conviction of an accused u/s 160 IPC is the "fight in a public place". In the present case, in order to prove "fight" the prosecution has primarily relied upon the testimony of PW1 & PW3.
20. PW1 during his examinationinchief has categorically stated that he saw some persons quarrelling with each other with fists and blows when he reached at the spot after receiving DD entry no. 18A dated 10.09.2011. He interalia deposed that "When, we reached on the spot we saw that 45 persons were quarrelling with each other with fist and blow. I along with ASI Krishan Pal with the help of some persons of the Mandir tried to settle the matter between the parties but we cannot handle them. In the meantime, IO Krishan Pal inquired the name and the address of the accused namely Lakshmi Chand aand his son Rahul who is one of the party and another party Satish and his son Manu and subsequently, Deepak, Sappan and Sarvesh joined the party of Satish."
21. However, it is interesting to note that PW1 in his crossexamination contradicted from his statement given during examinationinchief visavis 7 occurrence of fight among the accused persons. He interalia deposed that "It is correct that accused Sarvesh Bharadwaj, Sappan Bharadwaj and Deepak Bharadwaj came after the incident. There were no fight between the above said accused persons with any persons including the other accused. They were only indulging in arguments."
22. Perusal of the testimony of PW3 clearly shows that there are material contradictions in his statements. While, during his examinationinchief, he categorically stated that the accused persons were quarrelling with each other with fists and blows, however, in his crossexamination he contradicted his own statement by stating that no fight had occured among the accused persons and they were only indulging in some arguments. Therefore, testimony of PW3, in order to prove the fact that fight had taken place among the accused persons, cannot be relied upon.
23. Further, it should be noted that the prosecution has not examined any public witness/eye witness in the present case. It becomes very difficult to fathom especially in light of the fact that the alleged incident of affray had happened inside the Kalkaji Temple premise which is otherwise a very crowded place. Both PW1 and PW3 in their testimonies have deposed that they tried to settle the dispute among the accused persons with the help of some other persons. However, even these persons were not examined by the prosecution. It has come in the crossexamination of PW3 that during the investigation, he had asked public persons to join the investigation; however, they did not join. At this stage, it is pertinent to note that the IO did not make any endeavour to note down their names and addresses. In fact, IO did not even give them notice to join the investigations.
24. In this situation, when the public persons were available at the spot where alleged incident took place, the police officials should have made endeavour to have public witnesses joined the investigation. Their statements should have been 8 recorded by the police officials during the investigation and they should have also been examined by the prosecution. If the public witnesses refused to join the investigation, the police officials should have served them with a notice to join the investigation. This has not been done in the present case. It is ironical that the police officials did not make any endeavour to record the statements of public witnesses in the present case where the offence of affray disturbing the public peace by fighting at the public place, is allegedly involved.
25. While the testimony of the police officials cannot be discarded away merely because of the fact that no public witnesses were not examined, however, their testimonies should be scrutinised in more detail. If it is found the police officials during the course of investigation did not even make endeavour to ask the public witnesses to join the investigation, did not even ask their names and details etc. then it would cast a very serious doubt on the testimonies of the police officials. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of Tahir v. State (Delhi) [(1996) 3 SCC 338], dealing with a similar question, the Hon'ble Apex Court held interalia the following:
"In our opinion no infirmity attaches to the testimony of the 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 their 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 form 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. The obvious result of the above discussion is that the statement of a police officer can be relied upon and even form the basis of conviction when 9 it is reliable, trustworthy and preferably corroborated by other evidence on record."
26. The requirement of the police officials to make endeavour to ask the public witnesses to join the proceedings was discussed by the Hon'ble Supreme Court in the case of Sahib Singh vs. State of Punjab AIR 1997 SC 2417, wherein it interalia held the following:
"In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility"
27. Similar observation was made by the Hon'ble Punjab & Haryana High Court in the case of Roop Chand vs. State of Haryana 1999 (1) CLR 69, wherein the Hon'ble Court while discussing the role of public witnesses in criminal investigation, had interalia held the following:
"4. It is well settled principle of the law that the investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigation officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the investigating officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of 10 the fact that the explanation for nonjoining the witnesses from public is an afterthought and is not worth credence. All these facts taken together make the prosecution case highly doubtful."
28. Further, the Hon'ble Supreme Court in the case of Pradeep Narayan Madgaonkar v. State of Maharashtra (1995) 4 SCC 255 dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Hon'ble Apex Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.
29. Therefore, in view of the above mentioned case law, it becomes clear that while the testimony of the police officials cannot be discarded away forthwith in the absence of any public witnesses, however, it would be prudent to examine or scrutinise their testimonies more closely and should preferably be corroborated. Accused may be convicted on the basis of the testimonies of the police officials if their testimonies are found to be reliable and trustworthy.
30. In the instant case, as discussed above, there are material contradictions in the testimony of PW1, and, therefore, not reliable. While PW3 his supported the story of prosecution in his examinationinchief, however, it is not safe to solely reply upon his testimony due to some material contradictions in his testimony which has highlighted certain glaring loopholes in the investigation carried out by him.
31. Firstly, it should be noted that as per the FIR which is Ex. PW2/A, the FIR in the present case was registered on 10.09.2011 at around 5:15 PM. The same has been corroborated by PW2 who was the duty officer in PS Kalkaji and had registered the present FIR No. 319/2011. As per the arrest memo Ex. PW1/A to PW 11 1/G, the accused persons were arrested in the present case at around 6 PM on 10.09.2011. As per the MLC of accused persons except Sarvesh Bharadwaj and Satish Sharma, their medical examinations were conducted at ESI Hospital Okhla on 10.09.2020 at around 4:20 PM. Interestingly, the MLC of these accused persons bears the present FIR No. 319/2011. It is difficult to fathom as to how MLC of these accused persons which were prepared at around 4:15 PM bear the FIR No. 319/2011 which was only registered later at 5:15 PM. It casts a serious doubt on the entire investigation process. It prima facie seems that the entire investigation in the present case has been botched up and reflects a concocted story. The said MLC of these accused persons seem to have been tampered with or are forged. Interestingly, for the reasons best known to the prosecution, the said MLC's were not proved by examining the concerned medical officer who had prepared them.
32. Further, as per the testimony of PW1 & PW3, after receiving the DD entry, they went to the spot where the accused persons were fighting with each other. If the police official went outside the police station i.e. to the spot at Kalkaji Temple where the alleged incident of affray took place, then as per Punjab Police Rules, he being on duty was required to enter his departure & arrival to & from the Kalkaji PS in the D.D. Register of the said PS. Chapter 22 Rule 49 of Punjab Police Rules, 1934 provides for this requirement and 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 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 personality by signature or seal.
Note: The term police station will include all places such as police lines & police posts where Register No. II is maintained."
1233. In the instant case, the prosecution has not produced the relevant DD entries of departure and arrival of PW3 from and to the Kalkaji PS. PW3 in his testimony was not even aware as to the fact whether diary entries were entered on the date of incident regarding his departure and arrival. This is a mandatory requirement which ought to have been followed by the police officials religiously. It seems that the above said provision of Punjab Police Rules was not complied in the present case regarding the departure and arrival of PW3 from and to the Kalkaji PS. The prosecution has produced no evidence whatsoever on record in the nature of documentary evidence of the relevant D.D. entries, so as to establish the presence of the PW3 at or near the place of incident in order to inspire the confidence of this Court. Therefore, it also creates doubt in the story of prosecution.
34. Therefore, as discussed above, the non production of relevant DD entries alongwith the MLC's filed on record raise a very serious question on the entire investigation conducted by PW3. It seems that the whole prosecution story is concocted and therefore, can not be relied upon.
35. Secondly, as per the statement given by PW1 in his crossexamination, CCTVs were installed at the spot where the alleged incident of affray took place among the accused persons. It is interesting to note that PW3 in his cross examination denied that CCTV cameras were installed at the relevant time at the spot. However, when he was further crossexamined, he later deviated from his earlier statement and deposed that he did not remember if any CCTV cameras were installed at the relevant time. In fact, CCTV cameras were installed at the spot on the date of incident. Relevant CCTV footage has been filed by DW2 which is Ex. DW2/2. DW2 in his examinationinchief has categorically stated CCTV cameras were installed at the time of incident at the alleged spot and he had also asked the IO to collect the same from Kalkaji temple, however, the IO did not bother to collect the same. It is very difficult to fathom as to how IO failed to collect this crucial piece of 13 evidence which could have helped the prosecution to establish that the alleged fight had actually taken place in a public place.
36. Thirdly, PW3 in his crossexamination has admitted that the Rajasthan Armed Constabulary (RAC) division was posed at the Kalkaji Temple albeit away from the spot of incident. However, during his further crossexamination, he admitted that the alleged incident had taken place near the guard of RAC. If the RAC division was posted at the spot and the alleged incident had taken place near one of its guard, then the concerned guard ought to have been investigated by the IO and later examined by the prosecution during the trial. For the reasons best known to the prosecution, this has not been done in the present case.
37. Fourthly, interestingly, PW3 during his crossexamination had also denied his own statements given during the examinationinchief wherein he deposed that "Thereafter, I prepared site plan vide Ex. Pw3/B which bears my signature at point A. Medical examination of accused persons were conducted at ESI hospital. Thereafter, on the same day, accused persons were produced before concerned court and they were sent to judicial custody. During the investigation I collected DD entry no. 18A vide marked D1 which bears my signature at point A. After completion of investigation, I filed chargesheet before the concerned court."
38. Therefore, for the above stated reasons, I am of the considered view that testimony of PW3 is not safe to be relied upon in order to convict the accused persons in the present case.
39. In a nutshell, as per the prosecution story, PW3 received DD entry regarding a scuffle among the accused persons taking place inside Kalkaji temple. After receiving the same, he immediately went at the spot and tried to settle their dispute, however, when they did not stop fighting, he prepared a complaint/rukka and sent to the PS Kalkaji through PW1. Thereafter, he arrested the accused persons and got 14 them medically examined. PW3 himself carried out the investigation and filed the present chargesheet.
40. PW3 seems to be omnipresent in the case. He was both the complainant and IO in the present case. He did a very unique investigation wherein he did not even make any attempt to record statements of any public witnesses. He also did not bother to record the statement of guard of RAC division. He did not consider it necessary to even collect the CCTV footage of the incident from Kalkaji Mandir. He also could not produce the relevant diary entries to prove his departure from and arrival to the Kalkaji PS on the date of incident. The entire case of the prosecution is based on the testimony of PW3 as PW1 has contradicted his own statement by categorically admitted that the accused persons were not per se fighting with each other rather merely had arguments.
41. Therefore, in view of the above discussion, I am of the considered view that the prosecution has miserably failed in proving the guilt of the accused persons beyond reasonable doubt in the present case. Hence, all the accused persons stand acquitted for the offence u/s 160 IPC.
42. Last but not the least, as discussed in para 31 of this judgment above paragraphs of this judgment, prima facie it seems that the MLCs prepared in the present case of the accused persons are either forged or have been tampered with later by the police officials. It becomes a very serious issue as the PWs in their testimonies (which were given under oath) have referred to the said MLCs. MLCs in the present case having been prepared by the doctor of government hospital, are public documents. Any tampering with public documents has to be viewed very seriously.
43. Therefore, in view of the above, let a copy of this judgment be sent to Deputy Commissioner of Police, SouthEast District forthwith with a direction to inquire into 15 this matter. Let a status report in this regard be submitted before this Court on 27.02.2020.
Announced in the open court (Animesh Kumar) on 07.01.2021 MM06, South East, New Delhi
It is certified that this judgment contains 16 pages and each page bears my signatures.
Digitally signed by ANIMESH ANIMESH KUMAR
KUMAR Date: 2021.01.08
16:37:40 +0530
(Animesh Kumar)
MM06, South East,
New Delhi/07.01.2021
16