Delhi District Court
State vs Rajesh Kumar on 5 September, 2023
FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur
IN THE COURT OF METROPOLITAN MAGISTRATE-03,
PATIALA HOUSE COURT, NEW DELHI
Presided over by- Ms. Isha Singh, DJS
Cr. Case No. -: 51176/2016
Unique Case ID No. -: DLND02-003594-2016
FIR No. -: 164/2014
Police Station -: TUGHLAK ROAD
Section(s) -: Sec. 12 Delhi Public
Gambling Act, 1955
(Act 9 of the year 1955)
In the matter of -
STATE
VS.
RAJESH KUMAR
S/o Sh. Ram Chander,
R/o H. No. 37-P, Sector-4, GOI Market,
New Delhi.
OMBEER SINGH
S/o Sh. Riyat Singh
R/o H. No. 1882, Type-III, Lakshambai Nagar,
New Delhi.
SATISH KUMAR
S/o Sh. Mahabeer Prasad
R/o H. No. B-38, Amar Colony, Shahdara,
New Delhi.
HARBANSH KUMAR
S/o Sh. Ram Prasad
R/o H. No. 2019, Ward No.1,
Mohallah Bhim Nagar Garh Road, Hapur, U.P.
.... Accused
Page 1 of 19
FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur
1. Name of Complainant : SI Gyan Prakash
Rajesh Kumar, Ombeer Singh, Satish
2. Name of Accused :
Kumar & Harbansh Kumar
Offence complained of or 12 Delhi Public Gambling Act, 1955
3. :
proved (Act 9 of the year 1955)
4. Plea of Accused : Not guilty
5. Date of commission of offence : 24.12.2014
6. Date of Filing of chargesheet : 29.04.2016
7. Date of Reserving Order : 19.08.2023
8. Date of Pronouncement : 05.09.2023
9. Final Order : ACQUITTED
Argued by -: Sh. Ankit Srivastava, Ld. APP for the State.
Ms. Pravesh Kumar, Ld. Counsel for all accused alongwith all ac cused in person.
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution is that on 24.12.2014, at about 03:30 PM, behind Udhyog Bhawan, Public Park, New Delhi, within the jurisdiction of PS Tughlak Road, accused persons Rajesh Kumar, Ombeer Singh, Satish Kumar and Harbansh Kumar were found gambling with the help of playing cards with a stake money of Rs. 200/-, thereby committing offence punishable u/s 12 Delhi Public Gambling Act, 1955 (Act 9 of the year 1955).Page 2 of 19
FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused persons was filed. After taking cognizance of the offence, ac- cused persons were summoned to face trial.
3. On their appearance, copies of charge-sheet were supplied to ac- cused persons in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against accused persons, charge under section 12 Delhi Public Gambling Act (Act 9 of the year 1955) were framed against accused persons to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. To prove its case beyond reasonable doubt against the accused, the prosecution led the following oral and documentary evidence.
ORAL EVIDENCE
PW 1 : HC Virender (alongwith IO)
PW 2 : ASI Ashok Kumar (Duty Officer)
PW 3 : Inspector Gyan Prakash (Complainant/IO)
PW 4 : HC Rajeev Kumar (alongwith IO)
DOCUMENTARY EVIDENCE
Ex. PW1/A : Seizure memo of case property
Ex. PW1/B : Arrest memo of accused Rajesh Kumar
Ex. PW1/C : Arrest memo of accused Ombeer Singh
Ex. PW1/D : Arrest memo of accused Satish Kumar
Ex. PW1/E : Arrest memo of accused Harbansh Kumar
Page 3 of 19
FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur
Personal search memo of accused Rajesh
Ex. PW1/F :
Kumar
Personal search memo of accused Ombeer
Ex. PW1/G :
Singh
Personal search memo of accused Satish
Ex. PW1/H :
Kumar
Personal search memo of accused Harbansh
Ex. PW1/I :
Kumar
Ex. PW2/A
: FIR in the present case
(OSR)
Ex. PW2/B : Endorsement on tehrir / rukka
Ex. PW3/A : Rukka
Ex. PW3/B : Site plan
DOCUMENTS ADMITTED UNDER SECTION S. 294
CrPC
Ex. A1 : FIR No. 171/2023
Ex. A2 : Certificate u/s 65B IEA supporting the FIR
Ex. A3 : DD No.125 dated 23.03.2023
Ex. A4 : GD No.107A dated 23.03.2023
Ex. A5 : DAD Notification dated 29.10.1980
4.1 PW1/HC Virender deposed on oath that on 24.12.2014 at about
03.15 PM, when he was on patrolling duty alongwith SI Gyan Prakash and Ct. Rajeev, all of them reached near Udhyog Bhawan Metro Station, where one se- cret informer met them and informed them that some persons were playing gam- bling in the park situated behind Udhyog Bhawan Metro Station. Such informa- tion was relayed to SHO concerned by SI Gyan Prakash, and thereafter, raiding party was constituted by SI Gyan Prakash including PW1/HC Virender and Ct. Rajeev, in order to apprehend the persons suspected of playing gambling. He Page 4 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur further stated that he alongwith other police officials and the secret informer went near the park, where the secret informer pointed out towards the persons who were playing gambling in the park. He stated that four accused persons were apprehended by the raiding party including PW1/HC Virender, SI Gyan Prakash and Ct. Rajeev. Additionally, he deposed that one set of playing cards (52 in number) and two Indian currency notes of Rs. 100/- denomination were recovered from the possession of the accused persons. He further stated that IO prepared tehrir which was handed over to PW1/HC Virender for registration of the FIR. Accordingly, PW1 went to PS Tughlak Road alongwith tehrir and he handed over the tehrir to DO for registration of FIR. He further stated that seizure memo as regards one set of playing cards (52 in number) and two Indian currency notes of Rs. 100/- denomination, was prepared by the IO. He further deposed that all the accused persons were arrested by the IO and their personal searches were conducted. He correctly identified all accused persons and case property.
During his cross examination, PW1/HC Virender, stated that he did not know anything about the secret informer and he was not aware about the time when secret information was relayed by the IO to the SHO concerned. He stated that the place, where the accused persons were playing cards was an open park and police officials could be seen easily, entering into the park. He denied the suggestion that there were number of persons sitting, where the accused persons were playing cards. He admitted that playing cards are easily available in market. He stated that he did not disclose any specific identification of the playing cards during his statement to the IO. He admitted that he told to IO that two currency notes of Rs. 100/- each were seized from the spot. He admitted that IO did not take finger prints on the note of Rs. 100/- and playing cards. He Page 5 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur denied the suggestion that playing card and two notes of Rs. 100/- were planted by the police. He failed to remember if anything was recovered from the accused persons, at the time of their personal search.
4.2 PW2/ASI Ashok Kumar (Duty officer) proved the copy of the FIR and his endorsement on the rukka.
During his cross-examination, PW2/ASI Ashok Kumar stated that he received the tehrir / rukka at about 04:50 PM and after registration of the FIR, Ct. Virender left the PS. He stated that it took about 30 to 45 minutes in the proceedings.
4.3 PW3 IO/Inspector Gyan Prakash deposed to the effect that on 24.12.2014, at about 03:15 PM, he alongwith Ct. Rajeev and Ct. Virender, during their patrolling duty, reached near Udhyog Bhawant Metro Station, where one secret informer met him and informed that some persons were gambling in the park situated behind Udhyog Bhawan and that they could be caught red handed, if raid was conducted. He further stated that he passed on that information to the concerned SHO, PS Tughlak Road, who directed PW3/ IO Gyan Prakash to take necessary action. He further stated that although, he re- quested four to five individuals to join the proceedings, however none of them agreed citing personal difficulties and left the spot. Thereafter, he constituted raiding team consisting of aforesaid police staff and secret informer and all of them reached near park behind Udhyog Bhawan. He further stated that the secret informer pointed towards four individuals who were playing gambling in the park with playing cards and thereafter, the secret informer left the spot. On see- ing the raiding party, all accused persons started running away from the spot Page 6 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur leaving behind currency notes and playing cards. He further stated that he man- aged to apprehend the accused persons with the help of police staff at about 03:30 PM. He further stated that they recovered a pack of 52 playing cards and two currency notes of Rs. 100/- each, from the accused persons. Upon enquiry, the said four individuals revealed their identities as Rajesh Kumar S/o Sh. Ram Chander, Ombeer Singh S/o Sh. Riyat Singh, Satish Kumar S/o Mahavir Prasad and Harbansh Kumar S/o Sh. Ram Prasad. He further stated that he kept the re- covered 52 playing cards and two currency notes in a white colour cloth and pre- pared a pullanda and duly sealed with the seal of 'GP' and seized the same. Thereafter, the seal was handed over to Ct. Rajeev and PW3 prepared the rukka at the spot and handed it over to Ct. Virender for the registration of the FIR. Af- ter registration of FIR, Ct. Virender returned to the spot and handed over the copy of FIR and original rukka to him. Pursuant to the registration of the FIR, PW3 mentioned the FIR number on the seizure memo. He prepared the site plan. Thereafter, he arrested the all accused persons and conducted their personal search. He further stated that the accused persons were informed about their right to be released on the bail, however, as they failed to produce any surety at the spot they were brought to PS Tughlak Road and from there accused persons were sent to RML Hospital for medical examination and thereafter accused per- sons were released on bail as they produced their sureties. He further stated that the case property as well as personal search memos of accused persons were de- posited in malkhana and statement of relevant witnesses were recorded u/s 161 Cr.P.C. After completion of investigation, he prepared the charge-sheet and sub- mitted the same before the Hon'ble Court. He correctly identified the accused and the case property in the court.
Page 7 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur During his cross examination, PW3/ IO/ Inspector Inspector Gyan Prakash, he stated that on the day of incident, he gave the information about the incident to SHO PS Tughlak Road through his mobile phone and he also made the departure entry for the patrolling duty. He admitted that other public persons were also present in the park. He stated that pictures of glasses and some gift packs were show on the opposite side of the seized playing cards. He stated that he was not aware whether the seized playing cards are easily available in the market. He further stated that he tried to get some public persons to join the in- vestigation, but no one agreed. He denied the suggestion that accused persons have been falsely implicated as they were sitting in the park and were taking sun bath as it was winter time. He denied the suggestion that the accused persons were having their lunch as they were on job on that day. He denied the sugges- tion that he intentionally did not file medical report of accused Harbansh Kumar as he was suffering from high blood pressure and was recommended by the doc- tor for admission in the hospital. He stated that he did not remember the cur- rency note numbers of seized money and no CCTV camera was found nearby the place of incident at that time.
4.4 PW4/HC Rajeev Kumar, he deposed on similar lines as PW3 IO/ Inspector Gyan Prakash and also stated that he remained associated in the inves- tigation so carried out by the IO. He correctly identified the accused as well as case property in the court.
During his cross-examination, PW4/HC Rajeev Kumar failed to remember the DD number vide which he was on patrolling duty. He did not re- member the name of the Duty Officer, PS Tughlak Road, who made the depar- ture entry. He stated that he alongwith IO/SI Gyan Prakash and Ct. Virender Page 8 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur were patrolling on foot and the IO passed on the secret information to the con- cerned SHO in his presence. He admitted that many public persons were avail- able at the spot from where the recovery was effected from the accused persons. He also admitted that no public persons had joined the proceedings and that no notice u/s 160 Cr.P.C. was served upon the public persons by the IO. He stated that the playing cards recovered from the spot had images of flowers, etc. He stated that he did not remember the serial number of the two currency notes, which were recovered from the spot. He stated that he did not remember as to by what mode of transportation, Ct. Virender went to PS Tughlak Road for the reg- istration of FIR. He admitted that no CCTV camera was installed at or near the spot. He admitted that the site plan was prepared in his presence, however, the same did not bear his signature. He denied the suggestion that he was not a member to the patrolling team.
Vide order dated 20.05.2023, PE was closed at the request of Ld. APP for State.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE
5. On 20.05.2023, statement of accused persons u/s 313 Cr.PC were also recorded wherein accused persons denied the case of the prosecution and stated that they have been falsely implicated in the case. Accused persons Rajesh Kumar, Ombeer Singh, Satish Kumar did not lead Defence evidence. Only accused Harbansh Kumar chose to lead the following defence evidence:
Page 9 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur ORAL EVIDENCE DW 1 : Harbansh Kumar (accused) DOCUMENTARY EVIDENCE Original slip of Central Govt. Health Mark-X :
Scheme.
6. DW1/ Harbansh Kumar entered the witness box pursuant to his application under 315 CrPC, being allowed. He deposed that he was suffering from high blood pressure on the day of incident and unable to move anywhere and doctor had advised him to get admitted in the hospital. He further stated that he was laying down on grass in park and sunbathing but police officials falsely implicated him in the present case.
During his cross-examination, DW1/ Harbansh Kumar, he stated that he went to the first aid centre situated at Nirman Bhawan, where he was examined by one Dr. Kalpana. He admitted that in the slip Mark-X, he has not been advised to take rest by the concerned doctor. He voluntarily stated that he was orally advised to take rest. He admitted that he was not advised by the doctor to get admitted in the hospital. He admitted that in the slip Mark-X symptoms or the name of the disease was not mentioned and the said columns were blank. He admitted that he never approached the senior police officials or the court regarding his false implication in the present case. He denied the suggestion that no medical rest was advised by the doctor as his condition was not serious.
Page 10 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur ARGUMENTS
7. During final arguments, it was argued by Ld. APP for the State that the case against the accused stood proved in view of the evidence led by the prosecution. Accordingly, he argued that accused deserved to be convicted for the offence u/s 12 Delhi Public Gambling Act, 1955 (Act 9 of the year 1955).
On the other hand, the Ld. defence counsel argued that the prosecution has failed to bring out a case against the accused, especially in view of the fact that no independent public witnesses were made a part of the search and arrest of the accused, despite the fact that the accused was apprehended from a public place. It has been argued that the case property was falsely planted upon the accused and as such, he is liable to be acquitted.
ANALYSIS
8. The accused persons have been charged for the offence under Sec- tion 12 of Delhi Public Gambling Act, as it has been alleged that the accused persons were found gaming i.e., wagering or betting in a public place. In this re- gard, the prosecution has seized a pack of 52 playing cards and stake money of Rs. 200/- from the accused persons during patrolling duty on the date of the inci- dent.
9. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused.
Page 11 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur
10. In the case such as the present one, the fact of recovery is of utmost importance to bring home the guilt of an accused. It is stated that while on patrolling duty, HC Virender alongwith Ct. Rajeev and SI Gyan Prakash apprehended the accused persons and recovered a pack of 52 playing cards and stake money of Rs. 200/- from the possession of the accused persons. It is not disputed by the prosecution witnesses on whose testimony the prosecution seeks to rely upon that at the time of apprehension of the accused, there were members of general public available at the spot from where recovery was made, however it is both apparent and surprising that no independent witness was made to join the investigation by the police.
11. The importance of joining public persons in the recovery proceedings has time and again been emphasised by Judicial pronouncements. At this juncture, reference is made to the judgement of Roop Chand v. State of Haryana 1989 SCC OnLine P&H 539 : (1989) 2 RCR (Cri) 504, wherein it has been observed:
"4. It is well settled principle of 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. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join.
5. It is a very common excuse that the witnesses from the public refused to join the investigation. 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 Investigating Officer can take action against such a person under the law. Had it been a fact that the witnesses Page 12 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur from the public had refused to join the investigation, the Investigating Officer must have noted down their names and addresses etc. and would have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the pubic is an after thought and is not worthy of credence. All these facts taken together makes the prosecution case highly doubtful."
12. Reliance is placed upon the judgement of State of Punjab v. Balbir Singh, AIR 1994 SC 1872, wherein the Hon'ble Supreme Court has observed that:
"It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 Cr.P.C. would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been complied with and further consider whether the weight of evidence is in any manner affected because of the non-compliance. It is well- settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions."
13. Burden therefore, lies on the prosecution to establish that the association of public witnesses was not possible in the facts and circumstances of the case. However, in the present case, nothing in the testimony of prosecution witnesses suggests that sincere efforts were made by them to involve independent witnesses in the process of recovery and arrest. In the present case, there was no lack of time and opportunity to associate some Page 13 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur independent witnesses with the search and strictly comply with the provisions of Code of Criminal Procedure. As per documentary evidence, the accused persons were apprehended at 03:30 PM. The rukka Ex. PW3/A was prepared at 04:40 PM. The FIR (Ex.A1) was registered at 04:55 PM. As per arrest memos Ex. PW1/E, the accused persons were arrested at arounnd 05:25 PM to 05:55 PM. Therefore, it is clear that the police officials were not hard pressed for time as they remained at the spot from atleast 03:30 PM till atleast 05:55 PM. However, despite being at the spot for more than two hours, they did not join any public person in the investigation. IO has even admitted the presence of public witnesses at the spot and yet no independent public witnesses, in stark violation of Section 100 (4) CrPC, were joined in the investigation at the time of alleged recovery. IO did not even mention the names or addresses of those persons who refused to join the recovery proceedings. No explanation has come on record to show whether any notice was served upon the public witnesses requiring them to join the proceedings or to face action under Section 187, Indian Penal Code.
14. In the absence of any independent witness having been joined in the investigation, false implication of the accused by the police in the present case cannot be ruled out. Reliance is placed upon the Judgement of the Hon'ble Supreme Court in case of Hemraj vs State of Haryana (AIR 2005 SC 2110) wherein it was observed that, "the fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case."
15. The present FIR has been registered on the information of PW3/ Inspector Gyan Prakash, whose version is that on 24.12.2014, he was on Page 14 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur patrolling duty alongwith Ct. Rajeev and Ct. Virender. Pertinently, no DD entry has been tendered into evidence regarding the factum of patrolling duty of the complainant/PW3 Inspector Gyan Prakash or Ct. Rajeev and Ct. Virender. In this regard, as per the mandatory provision of the Punjab Police Rules, DD entry prior to departure and after arrival is required to be lodged in the dairy of the police station, by each police official. Rule 49, Chapter 22 of the Punjab Police Rules, 1934 is reproduced 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 of elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on the arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal."
In this case, the failure to recollect the DD number vide which PW3/ Inspector Gyan Prakash or Ct. Rajeev and Ct. Virender were on patrolling duty, is clear from the cross-examination of PW4/HC Rajeev Kumar. Since public persons were not joined in the investigation, the departure entry of the aforesaid police officials i.e., PW3/Inspector Gyan Prakash or Ct. Rajeev and Ct. Virender, regarding their patrolling duty on the date of incident and the time when the accused persons were apprehended with the case property, becomes a vital piece of evidence. However, no such daily diary entry regarding departure of PW3/ Inspector Gyan Prakash or Ct. Rajeev and Ct. Virender has come on record. Thus, there is no documentary evidence to corroborate the version of PW3/Inspector Gyan Prakash or Ct. Rajeev and Ct. Virender.
16. Further, as per the testimonies of the prosecution witnesses, the case property including pack of 52 playing cards and stake money of Rs. 200/-
Page 15 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur were sealed by the IO/Inspector Gyan Prakash with the seal of 'GP' and thereafter, the seal was handed over the seal to Ct. Rajeev after use. In this regard, there is no separate seal handing over or taking memo on record. Thus, the case property has been transferred from one official to another, however, no DD entry has been made with regard to the same. The seal remained with the junior police official as, it is not the case of the prosecution that the seal was handed over to any independent person after use. In such circumstances, the possibility of interference or tampering of the seal and the contents of the pullanda cannot be ruled out. Reliance is placed upon the judgement of the Hon'ble High Court of Delhi in the case of Safiullah v. State (Delhi Admn.) 1992 SCC OnLine Del 516 :(1993) 49 DLT 193. Therefore, it is safe to conclude that the prosecution has NOT been able to prove safe and tamper-proof custody of the case property in the present case.
17. Further, in the present case, the seizure memo of the case property Ex.PW1/A bears the number of the FIR and does not bear the number of the DD. As per the rukka and testimony of witnesses PW3 and PW4, the seizure memo of the case property was prepared prior to registration of FIR and after the registration of the FIR, PW3/IO SI Gyan Prakash inserted the number of the FIR onto the seizure memo, as per his deposition on record. The insertion of the FIR number after the preparation of the document seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the case property in the manner alleged by the prosecution. Reliance is being placed upon the judgment of Hon'ble High Court of Delhi in the case of Giri Raj v. State, 1999 SCC OnLine Del 1030. That being said, the benefit arising out of a doubtful recovery of case property must necessarily go to the Page 16 of 19 FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur accused.
18. Moreover, the prosecution has also failed to bring any evidence as to the modus operandi adopted by accused persons for the alleged gambling. The evidence on record is that the accused persons were found in possession of one pack of 52 of playing cards and stake money of Rs. 200/-, however, it has not come on record as to how the playing cards were used for gambling. The prosecution ought to have brought evidence have record as to how the playing cards were used for gambling, as to how the winner of the gambling would be declared, who would declare the winner and when would the winner be declared. However, no evidence in the above said terms has been tendered by the prosecution. Neither have the currency numbers of the Rs. 200/- denomination notes, been recorded as part of the seizure memo. Moreover, it stands admitted by PW4/HC Rajeev Kumar, in his cross-examination that playing cards, as recovered from the accused in the present case, are easily available in the market. The above said inconsistencies in the case of the prosecution have made the case of the prosecution highly doubtful.
19. It is alleged that the accused persons were using playing cards and stake money for the purposes of gambling. If that be so, then the playing cards as well as stake money recovered from the possession of the accused persons ought to have been investigated for finger prints and be sent to FSL for comparison with the finger prints of the accused persons. However, the same has not been done by the IO for reasons best known to him. This creates a gaping hole in the case of the prosecution and accused persons are entitled to benefit of the same.
Page 17 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur
20. Although the accused has entered the witness box and has deposed as DW1 that he was suffering from high blood pressure on the date of incident and was sunbathing at the spot of the occurrence, upon the advice of the doctor. But, he has not been able to produce any documentary evidence to the effect that he was advised by the doctor to take medical rest or to get admitted in the hospital. However, law is trite that prosecution must stand or fall on its own legs, and that it cannot derive any strength from the weakness of the defence. (Sharad Birdichand Sarda v. State of Maharashtra (1984) 4 SCC 116). In the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:
"..... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution."
21. The onus and duty to prove the case against the accused persons is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is a cardinal principal of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused then, the accused is entitled to benefit of doubt leading to his acquittal. In the present case, all the lapses in investigation as cited above create doubt on the case of the prosecution, the benefit of which must accrue to the accused.
Page 18 of 19FIR No.164/2014 (State vs. Rajesh Kumar & Ors.) PS Sagarpur CONCLUSION -
22. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence under Section 12 Delhi Public Gambling Act, 1955 beyond reasonable doubt. The accused has been successful in pointing out the deficiencies in the case of the prosecution. The recovery of the case property from the possession of the accused persons is highly doubtful and even otherwise, the recovery is not sufficient to prove the offence of Public Gambling against the accused persons. The evidence of police witnesses is not reliable and no independent witnesses were joined, despite abundant availability. No CCTV footage was brought on record by the prosecution to prove its case. Inconsistencies and deficiencies in the version of the prosecution have crumbled the whole case of the prosecution.
23. Resultantly, the accused persons RAJESH KUMAR S/o Sh. Ram Chander, OMBEER SINGH S/o Sh. Riyat Singh, SATISH KUMAR S/o Sh. Mahabeer Prasad and HARBANSH KUMAR S/o Sh. Ram Prasad is entitled for benefit of reasonable doubt and are hereby found not guilty. The accused persons are hereby ACQUITTED of the offence under Section 12 Delhi Public Gambling Act, 1955 (Act 9 of the year 1955).
Announced in open court
in the presence of accused (Isha Singh)
MM-03/PHC/NDD/05.09.2023
Certified that this judgment contains 19 pages and each page bears my signature.
(Isha Singh) MM-03/PHC/NDD/05.09.2023 Page 19 of 19