Delhi District Court
State vs . Ram Chander & Anr on 15 March, 2018
IN THE COURT OF SH. GAURAV GUPTA, METROPOLITAN MAGISTRATE04, SOUTH
DISTRICT, NEW DELHI
STATE VS. Ram Chander & Anr
FIR NO: 1170/07
P. S Sangam Vihar
U/s 160/427/34 IPC
Crc/2032479/2016 Digitally
signed by
JUDGMENT GAURAV
GAURAV GUPTA
Sl. No. of the case : 273/2 GUPTA Date:
2018.03.26
Date of its institution : 05.04.2008 17:11:14
+0530
Name of the complainant : HC Raj Kumar, Belt No. 2225/SD,
Posted at PS Sangam Vihar, New
Delhi.
Date of Commission of offence : 21.12.2007
Name of the accused : (i) Ram Chander, S/o Late Budh Ram,
R/o H. No. A854, Sangam Vihar, New
Delhi.
(ii) Suresh @ Raju, S/o Sh. Ghasi
Ram, R/o H. No. A859, Sangam
Vihar, New Delhi (Convicted vide
order dated 20.11.2013).
Offence complained of : 160/427/34 IPC
Plea of accused : Not Guilty
Case reserved for orders : Not reserved
Final Order : Acquittal
FIR no. 1170/07 State Vs. Ram Chander & Anr 1/5
Date of orders : 15.03.2018
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1.This is the prosecution of the accused persons namely Ram Chander and Suresh @ Raju upon a charge sheet filed by the police station Sangam Vihar under section 160/427/34 IPC.
2. The allegations against the accused persons are that on 21.12.2007 at about 10:30 PM at Near gali at A859, Sangam Vihar, New Delhi both the accused persons in furtherance of their common intention started fighting in a public place and conseqently disturbed the public peace and thereby committed an offence of affray punishable u/s 160/34 IPC. Further, on the above said date, time and place both the accused persons are alleged to have committed mischief by causing wrongful loss or damage to the vehicle bearing no. HR 38 NT 4390 and motorcycle bearing registration no. DL 3SAM 3306 with stone and thereby both of them committed an offence punishable u/s 427/34 IPC.
3. After completing the formalities, investigation was carried out by PS Sangam Vihar and a charge sheet was filed against the accused persons. Charges were framed against the accused persons u/s 160/427/34 IPC, to which they pleaded not guilty and claimed trial.
4. During the pendency of the trial, accused Suresh pleaded guilty and conseqently was convicted vide order dated 20.11.2013.
5. In order to substantiate its case, prosecution has examined only two witnesses. ASI Manohar Lal deposed as PW1. He stated that on 22.12.2007, he was deputed as the Duty Officer. He further stated that on that date, Ct. Sampat handed over him a rukka for the registration of the case by HC Raj Kumar. Upon which he registered the FIR which is Ex. PW1/A. He also proved endorsement on rukka as Ex. PW1/B.
6. ASI Raj Kumar deposed as PW2. He is the complainant as well as the IO of the present case. He stated that on receiving of DD NO. 39 B, he along with Ct. Sampat reached the spot i.e. at A859, Gali Saream, Sangam Vihar, New Delhi and after FIR no. 1170/07 State Vs. Ram Chander & Anr 2/5 reaching the spot, they found that accused Ram Chander and accused Suresh @ Raju were fighting and abusing each other. He further stated that they also found one car bearing no. HR 38 NT 4390 with broken window glasses and damaged head light and fuel tank of motorcycle bearing registration no. DL 3SAM 3306. He further stated that they separated both the accused persons from complainant and interrogated the accused persons and seized the motorcycle and the car vide seizure memos Ex. PW2/E and Ex. PW2/F respectively. He also proved rukka as Ex. PW2/G. He further arrested the accused persons and conducted their personal search vide memos Ex. PW2/A to Ex. PW2/D and site plan as Ex. PW2/H. He further stated that both the accused persons were taken to hospital for their medical examination. He further deposed that after conclusion of investigation, he filed the charge sheet before the court.
7. Accused Ram Chander admitted genuineness of request for medical examination u/s 294 Cr.PC. Statement of accused was recorded U/s 281 of Code wherein all the incriminating circumstances were put to him which he denied and pleaded his false implication. The accused took a defence that no such incident as alleged has taken place. He submitted that the quarrel on the spot actually happened between some public persons and at that time there was heavy traffic jam on road and due to jam he made a call to PCR from his mobile bearing no. 99******55. Thereafter, PCR van with police officials of PCR came and after their intervention the traffic jam was opened and police persons of PCR requested accused Ram Chander to accompany to the PS being a PCR caller. However, he was falsely implicated in the present case and actual culprits were not apprehended by the IO. Thereafter, he chose not to lead defence evidence.
8. As per the story of the prosecution, Ct. Sampat as well as HC Raj Kumar had not just investigated the matter but had also witnessed the incident. Testimony of Ct. Sampat could not be recorded as his presence could not be secured even after issuing process through the office of DCP as the witness had left the services of Delhi Police and was residing somewhere in Maharashtra where he could not be served with the summons.
9. Out of the two witnesses examined by the prosecution, PW1 is the then Duty Office and he had merely registered the FIR on receiving rukka. The only testimony against FIR no. 1170/07 State Vs. Ram Chander & Anr 3/5 the accused regarding the incident in question is that of PW2 ASI Raj Kumar. It is noted that ASI Raj Kumar is the complainant as well as the IO of the case. It was not proper for the investigation to have been marked to ASI Raj Kumar when he was also the complainant of the case. His testimony has to be put to a stricter scrutiny.
10. As per the prosecution story, the two accused persons were fighting in a public place and they had also damaged two vehicles. It is noteworthy that as per the testimony of PW2 ASI Raj Kumar, he along with Ct. Sampat went to the spot after receiving DD No. 39B. As per record of DD No. 39 B, vehicle no. HR 38 NT 4390 was mentioned to have been damaged by some persons. On receiving the information, IO along with Ct. Sampat went to the spot. It is apparent that the vehicle was already damaged when the two police officials left for the spot. Further, PW2 ASI Raj Kumar also deposed that when he reached the spot, the two vehicles were found in a damaged condition. He did not say that he had seen the accused causing any damage to the said vehicles. Other than the IO, there is no witness who had seen the accused damaging the said vehicles. Further, IO admittedly did not record statement of any of the owners of the said vehicles. No evidence was lead or material brought on record to show who was the owner of the vehicles. Even the vehicles were not mechanically examined or assessed to know the extent of damage caused to them. The IO also did not bother to find out who was the owner and to record their statement which would throw light as to whether those vehicles were parked at the spot when they were allegedly damaged by the accused or whether they were already damaged as there is no evidence to show that it was indeed caused any damage to the said vehicles. There is no evidence on record to substantiate the allegations that the accused had damaged the two vehicles or that the vehicles sustain any damage in the alleged incident. As such, the allegations of section 427 IPC remain unsubstantiated.
11. In order to establish the guilt of the accused for the offence of affray, it was required to be proved that the accused was engaged in a fight with the other accused (already convicted) and that due to the said fight, public peace was being disturbed. Admittedly, statement of not even one public witness was recorded by the IO. IO did not deny that several public persons were assembled at the spot. However, despite that he made no efforts to record their statement. Even he did not try to contact the caller to the PCR.
FIR no. 1170/07 State Vs. Ram Chander & Anr 4/5 The IO also did not admit or deny that it was the accused who had made a call to the PCR regarding the incident. It is noteworthy that the defence of the accused is that he was merely a passerby and he had called the PCR since traffic was jammed on the road. PW2 himself became the complainant and also took over the responsibility of investigating the case himself which raises doubts regarding fairness of investigation conducted by him. Further, he made no efforts to record statement of any person present at the spot who had witnessed the incident and who could depose the manner in which the public peace was being disturbed by the alleged incident involving the accused. The sole testimony of the IO, in the absence of any other incriminating evidence against the accused is not sufficient to establish the guilt of the accused.
12. In the end, it can be concluded that the prosecution has not been able to successfully prove its case against the accused. The only testimony on record i.e. of the IO does not inspire such confidence which is sufficient to nail the guilt of the accused. Accordingly, the accused is entitled to an acquittal and accordingly, accused is acquitted of the offence u/s 160/427/34 IPC. He is set at liberty. Bail bonds U/s 437 A of Cr.PC furnished and accepted for a period of 6 months.
Announced in the open court (Gaurav Gupta)
on 15.03.2018 Metropolitan Magistrate04,
South, New Delhi
It is certified that this judgment contains 5 pages and each page bears my signatures.
(Gaurav Gupta)
MM04, South, New Delhi/ 15.03.2018
FIR no. 1170/07 State Vs. Ram Chander & Anr 5/5