Delhi District Court
State vs Rajiv Kumar & Ors. on 3 August, 2013
IN THE COURT OF MS. KIRAN BANSAL, CMM (EAST DISTT.),
KARKARDOOMA COURTS, DELHI
State V/s Rajiv Kumar & Ors.
FIR No: 104/04
U/s: 3/4/5/9/55 Gambling Act
PS: Anand Vihar
JUDGMENT
a). ID No. of the case : 02402R0105442004
b). Sr number of the case : 79/08
c). Date of commission of offence : 16.03.2004
d). Name of complainant, if any : ASI Krishan Lal, No.116(Crime)
PIS no. 28823183, ISC/Crime,
Chanakaya Puri, New Delhi
e). Name & address of accused : 1. Rajiv Kumar Gupta
S/o Sh. Ranbir Parkash Gupta,
R/o H. No. 2257 Gali Anarwali,
Kinari Bazar, Chandani Chowk,
Delhi110006.
2. Umesh Kumar Gupta
s/o Sh. Mantu Ram Gupta
r/o 1614, Gali No.2, Tank Road,
Karol Bagh, New Delhi.
3. Sudhir Bhardwaj
s/o Sh. Mool Chand Bhardwaj
r/o H. No. 2712, Chowk Raiji,
Nai Sarak, Delhi110006
4. Vinod Kumar Jain
s/o Sh. Shambhu Dayal Jain
r/o H. No. T59/I, Gautam Puri,
New Seelampur, Delhi
f). The offence complained of : U/s 3, 4,59/55 DPG. Act,1955 r/w S.
34 IPC
g). The plea of accused : Pleaded not guilty
State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 1/12
h). Final order : Acquitted
g) The date of such order : 03.08.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
1. The facts of the present case have been disclosed in the complaint of the complainant that on 16.03.2004 at about 5 p.m near Plot No. Q704, Anupam Apartment, East Arjun Nagar, Delhi within the jurisdiction of PS Anand Vihar, Delhi, all the accused persons namely Rajeev, Umesh, Sudhir and Vinod used the aforesaid house as common gaming house and assisted the satta business on a cricket match between India and Pakistan with the help of instruments as detailed in seizure memo and thereby committed offence U/s 3 & 4 of Gambling Act, 1955 r/w Sec. 34 of IPC.
2. On the complaint FIR U/s 3 & 4 of Gambling Act was registered against all the accused persons, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
3. Subsequent to the filing of the challan, cognizance was taken and copies of challan were supplied to the accused persons. Thereafter, the charge for the offence U/s 3 & 4 of Gambling Act was framed on 12.04.2005, to which the accused persons pleaded not guilty and hence, the matter was thereafter listed for PE.
4. With a view to establish its case, the prosecution has examined PW1 ASI Chiranji Lal who deposed that on 16.03.2004 he joined the raiding party constituted by Insp. Subhash Tondon alongwith Insp. Pankaj Sood, HC Suresh, Ct. Gurdev, Ct. Pawan, Ct. Naseem and ASI Krishan Lal. When they reached at Shakarpur bus stand and at about 4:30 pm at the gate of Anupam apartment where Insp. Subhash Tondon asked some persons to join raid but none agreed and left the spot. He further deposed that beat Ct. State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 2/12 Charan Singh met them to whom information was briefed. He further stated that he does not remember block number but they reached on the 6 th floor in flat no. 704 of the apartment. Thereafter Insp. Subhash Tondon, ASI Krishan Lal entered into the flat and they were standing outside the flat and at about 5 pm they also entered into the flat where they saw that four persons were present inside the flat and there exist one center table, computer table and one TV set and the match between India and Pakistan was telecasting. Vinod and Suresh Bhardwaj was standing, Umesh was sitting on a single sofa and Rajiv Kumar was sitting on the chair. He further deposed that there were one WLL reliance phone, three mobile phones, two of them were Samsung and one was of Nokia. He further deposed that one ball pen and pad book were also there and all the accused persons except Rajiv were having mobile phone in their hand and they were gaming satta. He further deposed that ball pen and pad were sealed in a cloth pullanda with the seal of SS. Recovered articles were taken into possession vide memo Ex.PW1/A and Ex.PW1/B. Thereafter, IO SI Ramesh Sharma came at the spot who also joined the investigation. IO prepared rukka and sent him to PS for registration of FIR on which he had gone to PS Anand Vihar for registration of FIR. Thereafter he came at the spot alongwith the FIR and original rukka and handed over the same to IO. He further deposed that one diary of 2004, some documents and some other articles which was sealed was taken into possession vide Ex.PW1/C. Thereafter, accused persons were personally searched and arrested vide memos Ex.PW1/D to Ex.PW1/K. One slip pad Ex.PA where six pages were written was also taken into possession. Witness was crossexamined by ld. Defence counsel with respect to the cricket match to which witness depose that he cannot say in which city the match was played, who State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 3/12 won the toss, which country won the match, which team was bating when they entered in the flat and whether it was one day, 2020 match or a five day match. He admitted as correct that there were thousands of shops and houses at the spot and no one was asked to join the raiding party. He further admitted as correct that no writing work was done by any of the accused persons and no one put any stack with the accused persons in his presence. Thereafter, after finishing the work they returned to PS Anand Vihar at about 11 am. He also admitted that no stack money was recovered from the spot from anyone but he denied the suggestion no match was being played on that day or accused persons have been falsely implicated in the present case. He also stated that he does not know whether Insp. Subhash Tondon asked any resident of Anupam Apartment to join the raid and in his presence no notice was given to the persons who had refused to join the raid. He further admitted as correct that one Devender had met them inside the flat but he did not remember whether that person was asked by Subhash Tondon to join the raid or investigation or to become a witness of the seizure of the case property. He denied the suggestion that he is deposing falsely or that the has been planted by the police officials.
5. PW2 ASI Madan Kumar is the DO who deposed that upon production of rukka before him by ASI Krishan Lal, he registered FIR no.104/04 Ex.PW2/A and made endorsement on rukka Ex.PW2/B.
6. PW3 SI Kishan Lal deposed that on 16.03.2004, he was posted at ISC, Crime Branch, Chanakyapuri, Delhi and on that day, he received a secret information that a sattta was played at Flat No.Q704, Anupam Apartment, East Arjun Nagar. A DD Entry was recorded in this regard and he alongwith Inspector Subhash Tondon went to the spot to State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 4/12 verify the information. Thereafter, they reached at PHQ to obtain search warrant from DCP and after obtaining the permission Ex.PW3/A from DCP, the staff members including Inspector Pankaj Sood, HC Chiranjji Lal, HC Suresh Chand, Ct. Pawan Kumar and Ct. Gurdeep were called at the PHQ by Inspector Subhash Tondon. These police officials reached at the PHQ on Govt. Vehicle bearing registration no. DL1CH9897 and reached near Shakarpur bus stand where Insp. Subhash Tonden asked 78 public persons to join the raiding party but none agreed and left the place without disclosing their name and addresses. Thereafter, they reached at the spot i.e. at the gate of the Anupam Apartment, Insp. Subhash Tonden asked 45 public persons to join the raiding party but none agreed. However, in the mean time, one Ct. Charan Singh of PS Anand Vihar reached there. He further deposed that he alongwith Insp. Subhash Tonden reached at Flat No. Q704, Anupam Apartment, East Arjun Nagar. He further deposed that when they pushed the door, they saw that there was a person present in the room whose name came to be known as Devender. Devender told that there were other tenants in the other room also. Thereafter, they reached in the other room and stopped at the door from where, they heard some telephonic conversation and sound of television. Thereafter, at about 5 pm, they called the remaining staff of the raiding party and entered into the room and found four persons in that room. On interrogation, name of those persons came to be known as Rajiv Kumar, Umesh Kumar, Sudhir Bhardwaj and Vinod Kumar. Witness also identified all the accused persons during his testimony. He further deposed that there was a television set which was showing a cricket match between India and Pakistan on Ten Sports Channel. He further deposed that accused Rajiv Kumar was sitting on a chair and a telephone State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 5/12 instrument was kept on a computer table. A Reliance WLL Land Line phone was also kept there. There other mobile phones were also there in the room. Out of which, one mobile phone was not having SIM Card. He seized the note pad and pen vide seizure memo Ex.PW1/A and prepared the pullanda of the pen and sealed with the seal of SS. After use, the seal was handed over to HC Chiranjji Lal. He also seized the T.V., WLL Phone and mobile phones etc. through seizure memo Ex.PW1/B. He prepared rukka Ex.PW3/A and handed over the same to HC Chiranjji Lal for registration of FIR. He went to PS for registration of FIR. Insp. Subhash Tonden called SI Ramesh Kumar at the spot. Thereafter, HC Chiranjji Lal returned back at the spot alongwith the copy of FIR and original rukka and the same were handed over to SI Ramesh Kumar. He handed over the case properties and documents prepared by him to SI Ramesh Kumar. In his crossexamination by ld. Defence counsel he stated that he received the telephonic information at about 2 pm. He further deposed that he cannot say that the distance between the place of incident and his office at Chanakyapuri is about 20 km. He admitted as correct that there is no such DD entry in the judicial file. He further stated that they had left the office at about 2 pm and reached at PHQ at about 3.15 pm. Q704 is on 6th floor at Anupam Apartment in Karkardooma. He admitted as correct that there was a guard at the entrance of Anupam Apartment when they reached for verification but guard did not make entrance entry at the gate. He did not remembered whether he or Insp. Subhash Tonden had written the application for permission from the DCP. He admitted as correct that Insp. Subhash Tonden is not a witness in this case and is also not cited as a witness in Seizure memo Ex.PW1/A and Ex.PW1/C. He further stated that no written notice was given to the public persons who refused to State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 6/12 join the raiding party. He admitted as correct that there are number of shops behind the Shakarpur bus stand but no shop keeper was called to join the investigation. He denied the suggestion that they had not called any public person to join the investigation. He stated that one person namely Devender who met them in the flat was not joined in the raiding party. He denied the suggestion that no raid was conducted by them and no satta was being played. He further denied the suggestion that no stake money was given to accused persons or that no recovery was made or that accused persons had been falsely implicated.
7. PW4 HC Charan Singh who deposed that on 16.03.04 his duty was in the area of Anupam Apartment and at about 4:30 PM he saw that some persons were present at the gate of Anupam Apartment and were discussing, on which he also reached there. Where he met with Inspector Subhash Tondon who informed him that some game of satta was being played in Anupam Apartment. Alongwith the inspector Subhash Tondon one inspector namely Pankaj Sood, ASI Kishan Lal, two HC namely Suresh and Chiranji Lal and three constables. Inspector Subhash Tandoon had formed raiding party in which he also joined as a member of raiding team. Thereafter, at about 5:00 PM ASI Kishan Lal and inspector Subhash Tondon went in flat no. 704, 6 th floor, Q Block. Other members of the raiding team were present outside the gate of above said flat. ASI Krishan Lal had given a signal on which they entered in the said flat after passing from the room of Devender Pal who was tenant in the said flat, they went to another room in which other tenants were residing and they reached in the balcony of the flat. He further deposed that in the room they saw that TV was running. The match was being telecasted on the said TV between India and Pakistan. One person was State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 7/12 found sitting on the computer table chair whose name was came to be known as Rajeev. On the single sofa one person namely Umesh was found sitting. Two persons namely Sudhir and Vinod were found sitting on another sofa. There were mobile phones in the hand of Sudhir, Umesh and Vinod. Rajeev was writing satta on slit pad. On the computer table one mobile phone, hand free code, calculator. There was a base plate. There was an extension board in which two chargers, one lead were affixed. On the center table there were three mobiles, one reliance landline WLL phone, one another landline phone, one slip pad, ball pen. One TV of BPL was found in the Almirah on which the match was being telecast and remote and other articles were found in the room which were seized. The ball pen was kept in cloth pullanda and sealed with the seal of SS. Some other papers consisting of copies and diary was kept in cloth pullanda and sealed with the seal of RK. All the articles were taken in possession by mentioning the details in seizure memo Ex.PW1/A & PW1/B. SI Krishan Lal prepared rukka and handed over the same to HC Chiranji Lal for registration of FIR. He came back at the spot alongwith copy of FIR and original rukka and handed over the same to the IO. All the accused persons were arrested and personally searched. All the accused persons are correctly identified by the witness in his testimony. His statement was recorded by the IO. Case property was produced in the testimony of PW1 ASI Chiranji Lal and PW3 Kishan Lal exhibited as Ex. P1 (colly), P2 (colly) and P3. In his crossexamination by ld. Defence counsel he stated that he cannot say whether Devender had joined the raiding party in his presence. He denied the suggestion that he was not present in the raiding party and for that reason he cannot say whether Devender had joined the raiding party or not. Security officer of State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 8/12 the apartment had not joined the raiding party. There is a office of the society in the apartment but they have not joined the raiding party in his presence. The witnesses was also asked about the cricket match to which witness stated that he does not know how much score was secured by each team or which team had batted first or in which city or stadium the match was being played. He denied the suggestion that he did not join the raiding party.
8. Thereafter, after the completion of the Prosecution Evidence. No other PW appeared, therefore, the PE was closed. The matter was thereafter listed for the purpose of the recording of the statement of the accused.
9. Statement of the accused u/s 281 Cr.P.C was recorded without oath and after putting all the incriminating evidence upon the accused persons to they pleaded innocent and false implication in the present case. All the persons did not lead any defence evidence, the matter is thus listed for the purpose of the final arguments and the arguments heard and entire record have been perused.
10.I have heard the submission of Ld. APP for the State and the accused himself. I have also carefully perused the record.
11.The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. There are total four witnesses who could be examined in the present case and all of them are the police official witnesses. Here PW1 is ASI Chiranji Lal who has seized the articles vide memo Ex.PW1/A & Ex.PW1/B, some document and details of articles seized vide memo Ex.PW1/C, Accused persons were personally searched and arrested vide memos Ex.PW1/D to Ex.PW1/K. PW2 ASI Madan Kumar is DO who has proved FIR Ex.PW2/A and State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 9/12 endorsement on rukka Ex.PW2/B. PW3 is SI Kishan Lal who proved the permission Ex.PW3/A from DCP.
12.Despite the fact that the place of incident is a residential colony, no independent public person has been examined as witness. As per section 100 of Cr.P.C before making a search the officer is required to call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situated or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. The IO in the present case had admitted that he had only requested four to five passers by to join the investigation. The passers by cannot be called independent and respectable person of the locality. Admittedly, IO has not requested any respectable person of the locality to join the search.
13.Witness has stated that the articles were recovered from the flat in question. Though the IO has seized the Note pad, WLL phone, TV, mobile phone etc. but he never sent them to FSL for examination. Merely, possession of the TV, Computer and Mobile Phone is not an offence. Nothing has found on record to suggest that the said instruments were used for the purpose of gambling. Admittedly, no police person had offered any bet or put any stake on the match. Even the seizure memo Ex.PW1/A, B and C have been prepared in a vague manner. There is no evidence on record to say that any data from the computer or the CPU was recovered to suggest that the same were used for the purpose of gambling.
14.A note pad has been seized but no sample handwriting of the accused persons have been taken or sent to the FSL alongwith the note pad. The witnesses has even not been State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 10/12 able to state as to which of the accused person's handwriting is on the note pad or whether all the accused persons have written some thing or the other in the same note pad. As far as recovery of phones and SIM card is concerned, the details of the said phone calls have not been proved. Phone call details have also been placed on record and it is not as to with whom these persons were in touch on phone during the relevant period. Nothing has been placed on record even to establish the fact that the phone and the SIMs belonged to the accused persons. No investigation has been conducted from where these SIM cards were purchased and in whose name these mobile connection existed. The investigation conducted in the present case is far from satisfactory. No scientific evidence or handwriting expert opinion has come on record to establish the fact that the articles seized were being used for the purposes of gambling. All the witnesses have stated about the presence of Inspector Subhash Tondon but interestingly Insp. Subhash Tondon is not cited as a witness and this is also fatal to the case of the prosecution.
15.In view of the stark anomalies and contradictions in the statement of witnesses as discussed herein above and especially in view of the failure of the IO to join any independent public witness during proceedings or investigation and in the absence of any scientific evidence, I have no hesitation in holding that the prosecution has miserably failed to prove its case against the accused beyond all the reasonable doubts and to bring his acts and conduct within four corners of the said provisions of law constituting any of such offence or within legal ambit which would warrant his conviction and punishment in the present case. In view of the cardinal principle of law that prosecution must prove the guilt of the accused beyond reasonable doubts and State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 11/12 every benefit of doubt must be given to the accused, hence, the accused is entitled to every benefit arising out of lacuna's in the prosecution case.
16.In view of the above discussions it is held that the prosecution has failed to prove its case against the accused and has not been able to prove the charge for the offence U/s 3 & 4 of Gambling Act against all the accused persons. Accordingly, all the accused persons are hereby acquitted for the offence u/s 3 & 4 of Gambling Act. Their Bail Bonds stand cancelled. Surety Bonds stand discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on property receipt and identification. Case property, if any, be confiscated to the State after the expiry of the period of the appeal. File be consigned to record room.
Announced in the open court on today 03.08.2013 (KIRAN BANSAL) CMM (EAST DISTT.): KKD COURTS, DELHI State Vs. Rajiv Kumar, FIR No.104/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 12/12