Delhi District Court
State vs Rajesh Kumar on 23 February, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 8107/2021
CNR No. -: DLSE020233662021
FIR No. -: 227/2021
Police Station -: Sarita Vihar
Section(s) -: 160 IPC
In the matter of -
STATE
VS.
RAJESH KUMAR & ORS.
1. Rajesh Kumar,
S/o Sh. Narayan,
R/o H. No. 139, New Priyanka Camp,
Madanpur Khadar, Sarita Vihar, New Delhi.
2. Anita
W/o Sh. Rajesh Kumar,
R/o H. No. 139, New Priyanka Camp,
Madanpur Khadar, Sarita Vihar, New Delhi.
3. Virender
S/o Late Sh. Rohtash,
R/o H. No. 251, New Priyanka Camp,
Madanpur Khadar, Sarita Vihar, New Delhi.
FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 1 of 8
4. Maina
W/o Sh. Virender
R/o H. No. 251, New Priyanka Camp,
Madanpur Khadar, Sarita Vihar, New Delhi.
...Accused persons
1. Name of Complainant :- SI Salman Ahmed
2. Name of Accused Person :- 1. Rajesh Kumar
2. Anita
3. Virender
4. Maina
3. Offence complained of or :- Section 160 IPC
proved
4. Plea of Accused Persons :- NOT GUILTY
5. Date of Commission of :- 01.06.2021
offence
6. Date of Filing of case :- 30.09.2021
7. Date of Reserving Order :- 20.01.2024
8. Date of Pronouncement :- 23.02.2024
9. Final Order :- Acquittal
JUDGMENT
1. The case of prosecution in brief is that on 01.06.2021 at about 09.04 PM, in front of H. No. 251, New Priyanka Camp, Madanpur Khadar, Sarita Vihar, New Delhi, within the jurisdiction of PS Sarita Vihar, Accused persons committed offence of affray and thereby committed offence u/s 160 of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Sarita Vihar.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 2 of 8 Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). Relevant record was collected. Final report under section 173 CrPC, was prepared against the Accused persons and challan was presented in the court u/s 160 IPC on 30.09.2021. After taking cognizance of the offence, the Accused persons were summoned to face trial.
3. On their appearance, a copy of chargesheet was supplied to them in terms of section 207 of CrPC. Further, on finding a prima facie case against the Accused persons, notice under section 160 IPC was served upon the Accused persons on 27.08.2022 for which the Accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial for the offence u/s 160 IPC, prosecution led the following oral and documentary evidence against the Accused to prove its case beyond reasonable doubt: -
ORAL EVIDENCE PW1 :- SI Salman Ahmed (Complainant/IO in the present case ) PW2 :- HC Santosh (Police witness in the present case) DOCUMENTARY EVIDENCE Ex. PW1/A :- Rukka.
Ex. PW1/B :- Site plan. Ex. PW1/C :- Notice u/s 41A CrPC to all Accused to Ex. persons.
PW1/F FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 3 of 8
5. During the course of trial, witness mentioned at Sr. No. 3, 4 and 5 were dropped pursuant to statement of the Accused recorded u/s 294 CrPC.
6. PW-1/SI Salman Ahmed deposed that on 01.06.2021, after receiving DD No. 79A, he alongwith Ct. Santosh reached the spot, infront of H. No. 251, near Priyanka Camp, Madanpur Khadar. After reaching the spot, they saw Accused persons at the spot. Accused Rajesh Kumar and Accused Anita were quarreling with Accused Virender and Accused Maina. They tried to intervene and pacify both the parties. Thereafter, Accused Rajesh and Anita went to AIIMS Trauma Center. Thereafter, PW-1 received information from AIIMS Trauma Center with regard to MLC of injured Anita. Thereafter, PW-1 conducted local enquiry at the spot. Thereafter, PW-1 came to know that there was a property dispute going on between the parties. Thereafter, PW-1 left Ct. Santosh at the spot and went to AIIMS Trauma Center and collected MLC of Anita. Anita was not present in the hospital. Thereafter, PW-1 came back to the spot. At that time, all the Accused persons were present and both the parties again started quarreling and abusing each other. Thereafter, PW-1 again intervene and pacified both the parties. Thereafter, PW-1 prepared rukka which is Ex. PW1/A and handed over the same to Ct. Santosh for registration of FIR. Thereafter, he went to the PS got the FIR registered and came back to the spot with copy of FIR and the original rukka. Thereafter, PW-1 prepared site plan which is Ex. PW1/B. Thereafter, PW-1 issued notice u/s 41A CrPC to all the Accused persons namely Virender, Maina, Rajesh Kumar and Anita vide Ex. PW1/C to Ex. PW1/F. FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 4 of 8 Thereafter, PW-1 came back to the PS, he recorded the statement of the witnesses. Thereafter, PW-1 prepared chargesheet and file the same before the Court. PW-1 correctly identified Accused Rajesh and Maina in court. However, identify of Accused Virender and Anita are not disputed).
PW-1 was duly cross examined by Ld. Counsel for Accused Rajesh and Anita and Ld. Counsel for Accused Virender and Maina.
7. PW-2/HC Santosh has deposed on the same lines as PW-1 and his testimony is not being reiterated for the purposes of brevity.
PW-2 was duly cross examined by Ld. Counsel for Accused Rajesh and Anita and Ld. Counsel for Accused Virender and Maina.
STATEMENT OF ACCUSED PERSONS AND DEFENCE EVIDENCE
8. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against them, the statement of Accused persons was recorded without oath on 03.11.2023 under section 281 r/w 313 CrPC in which they stated that they are innocent and they have been falsely implicated in the present case. No defence evidence was led and matter was listed for final arguments.
FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 5 of 8ARGUMENTS AND ANALYSIS
9. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
11. Per contra, the Ld. Counsels for the Accused persons have argued that the state has failed to establish its case beyond reasonable doubt.
12. The Accused persons have been charged for the offence of affray u/s 160 IPC. In order to prove the offence of affray, the prosecution is required to prove the following ingredients, beyond all reasonable doubt:
i. Fighting must have taken place between two or more persons;
ii. Such fighting must have taken place in a public place;
iii. Such fighting must have also resulted in disturbance of public peace.
13. It is settled law that in the absence of even one of these ingredients, it cannot be stated that there was either an affray or the Accused facing the trial, should be held responsible. In the present case, firstly, the prosecution has not examined any public witness to the incident. Even the caller, based on whose information DD No. 79A dated 01.06.2021, was lodged, has not been examined. Be that FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 6 of 8 as it may, it is further seen that PW-1/SI Salman has deposed that when he reached at the spot, he saw that the Accused Rajesh Kumar and Accused Anita were fighting with Accused Virender and Accused Maina; and both parties were pacified and separated by him and thereafter, they had gone to AIIMS Trauma Centre. PW-2 has also deposed on similar lines. However, PW-2 has in his cross- examination admitted that the quarrel took place as there was some property dispute between the parties and the Accused Rajesh had claimed the said spot to be a right of way while Accused Virender had claimed it to be a part of his property. Be that as it may, in the prosecution case, the aggressors of the incident have not been identified. Further, the status of the spot on which the incident took place, as a public place has also not been established. Additionally, even if it is taken that there was a mutual fight between all Accused persons on a public place, the third ingredient of such fight resulting in disturbance of public peace has not been established. In the first place, annoyance to public, if at all, is not necessarily also disturbance of public peace which is more pervasive and of wider reach. In a prosecution under Section 159, IPC, there must be positive evidence of public hence having been disturbed which would mean that by the action of the Accused the even tempo of life of the public was disturbed resulting in affecting the peace and tranquillity of the locality. No such evidence has admittedly been led. Further, there is also no conclusive evidence that because of the fight any annoyance has resulted to the public.
14. In view of such fact, it has to be held that the charge under Section 160 IPC has not been established against the Accused FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 7 of 8 persons. In view of above said discussion, the prosecution has failed to prove the material ingredient of the alleged offence of 'affray' as defined in the IPC i.e., disturbing the public peace. Hence, the prosecution has failed to prove the guilt of the Accused persons beyond reasonable doubt.
15. Resultantly, the Accused persons namely, 1. RAJESH KUMAR S/O SH. NARAYAN, 2. ANITA W/O SH. RAJESH KUMAR, 3. VIRENDER S/O LATE SH. ROHTASH, AND 4. MAINA W/O SH. VIRENDER are hereby found not guilty. They are hereby ACQUITTED of the offence under Section 160 IPC.
16. File be consigned to record room after due compliance.
Announced in open court on 23.02.2024 in the presence of the Accused.
The judgment contains 08 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South-East District, Saket Courts, New Delhi,23.02.2024 FIR No. 227/2021 State v. Rajesh Kumar & Ors. Page 8 of 8