Delhi District Court
State vs . Ajay Singh & Anr. on 3 August, 2023
IN THE COURT OF MS. APOORVA RANA, M.M-10,
DWARKA COURT (SOUTH WEST), NEW DELHI
CNR No. DLSW02-018024-2021
Cr. Case 4573/2021
STATE Vs. AJAY SINGH & ANR.
FIR No. 60/2021
P.S Kapashera
03.08.2023
JUDGMENT
Case No. : 4573/2021
Date of commission of offence : 07.02.2021
Date of institution of the case : 06.04.2021
Name of the complainant : Sanjeev Kumar
Name of accused and address : 1. Ajay Singh
S/o Shadi Lal
R/o Jhuggi No. 290,
Sonia Gandhi
Camp, Samalkha,
Kapashera, New
Delhi.
2. Laxman Kumar
S/o Sh. Badlu
Paswan
R/o H. No. 47, Gali
No. 2, Room No. 6,
Telephone
Exchange Road,
Samalkha,
Kapashera, New
Delhi.
State Vs. Ajay Singh & Anr. Page No.1 / 17
Offence complained of or proved : U/s 12 Delhi Public
Gambling Act, 1955
Plea of the accused : Pleaded not guilty
Final order : Accused No. 1 -
Acquitted
Accused No. 2 -
Acquitted
Date when reserved for judgment : 25.07.2023.
Date of judgment : 03.08.2023
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. The present case pertains to prosecution of accused persons Ajay Singh and Laxman Kumar (hereinafter referred to as accused no.1 and accused no.2, respectively), pursuant to charge sheet filed qua them under Section 12 of Delhi Public Gambling Act, 1955 (hereinafter the Delhi Public Gambling Act), subsequent to the investigation carried out at P.S: Kapashera, in FIR no. 60/2021.
2. It is the case of the prosecution that on 07.02.2021, at about 09.10 p.m, in front of Jhuggi No. 233, Sonia Gandhi Camp, Samalkha, New Delhi, the accused persons were found gambling and from their possession, total cash of Rs. 1,600/-, two note pads having label of "Ruma" and one blue pen were recovered. The same were seized by the police officials and thereafter, an FIR was registered qua the accused persons. After investigation, the police filed the present charge sheet against the State Vs. Ajay Singh & Anr. Page No.2 / 17 accused persons for commission of offence punishable u/s Section 12 of Delhi Public Gambling Act.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing the arguments, notice u/s 12 of Delhi Public Gambling Act was served to both the accused persons, to which they pleaded not guilty and claimed trial. Further, the accused persons, vide their statement u/s 294 Cr.P.C, had admitted the genuineness of copy of FIR no. 60/2021, alongwith certificate u/s 65B of Indian Evidence Act, Ex. A1 (colly) and DD No. 52A dated 07.02.2021 Ex. A2.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution, in support of the present case has examined two witnesses in total.
5. PW-1 was HC Sanjeev, who deposed that on 07.02.2021, he alongwith Ct. Sandeep were on patrolling duty at beat no. 3 and 8. During patrolling, when they reached in front of shop of Salim kabari, Sonia Gandhi Camp, Samalkha, one secret informer met him there and he stated to him that some persons were gambling in front of Jhuggi no. 233, Sonia Gandhi Camp. Thereafter, PW1 informed this to the SHO, pursuant to which, the SHO ordered him to form a raiding team and proceed further. The said PW alongwith secret informer and Ct. Sandeep went to the spot. At about 8:45 p.m when they reached near the spot, they asked 3-4 nearby persons to join the raiding team but no one joined the raiding team and left the spot, citing their own State Vs. Ajay Singh & Anr. Page No.3 / 17 difficulty and without disclosing their names. Due to paucity of time, no notice was served to those public persons. Thereafter they all proceeded to the spot i.e. in front of Jhuggi no. 233 Sonia Gandhi Camp at about 9:05 p.m. There the secret informer pointed out towards two persons whose names were disclosed later on as Ajay Singh and Laxman Kumar. Thereafter, the said PW deposed with respect to the investigation carried out in the present matter by the IO. Through him, seizure memo was exhibited as Ex. PW1/A, tehrir was exhibited as Ex. PW1/B and recovered case property was exhibited as Ex. P1 (colly).
6. PW-2 was HC Narender, who deposed that on 07.02.2021, the investigation of this case was assigned to him and he received the copy of FIR and original tehrir from Ct. Sandeep. Thereafter, he alongwith Ct. Sandeep went in front of Jhuggi no. 233, Sonia Gandhi Camp, Samalkha where he met HC Sanjeev who was present with two persons whose names were revealed as Ajay Singh and Laxman Kumar. HC Sanjeev handed over the custody of accused persons to him alongwith case property in sealed condition. Thereafter, the said PW deposed with respect to the investigation carried out in the present matter by him. Through him, site plan exhibited as Ex. PW2/A, disclosure statements of accused persons were exhibited as Ex. PW2/B and Ex. PW2/C and arrest memos were exhibited as Ex. PW2/D and Ex. PW2/E.
7. On account of admission of accused u/s 294 Cr.P.C, PW at serial no. 4 DO/HC Rajpal Yadav, as per list of prosecution witnesses was dropped from the list of prosecution State Vs. Ajay Singh & Anr. Page No.4 / 17 witnesses and the formal proof of the documents sought to be proved by him was dispensed with.
8. No other PW was left to be examined, hence, P.E was closed.
STATEMENT OF ACCUSED U/S 313 Cr.P.C.:
9. Statements of the accused persons u/s 281 Cr.P.C read with Section 313 Cr.P.C. was recorded separately in which all the incriminating circumstances appearing in evidence were put to them. The accused persons controverted and denied the allegations levelled against them and stated that they have been falsely implicated in the case. Accused persons further opted to not lead evidence in their defence, hence DE was closed.
FINAL ARGUMENTS:
10. Ld. APP for the State has argued that prosecution witnesses have supported the prosecution case and their testimony has remained unrebutted. It has been further argued that on the combined reading of the testimony of all the prosecution witnesses, offence u/s 12 of Delhi Public Gambling Act has been proved beyond doubt.
11. Per contra, Ld. Counsel for accused persons has stated that there is no legally sustainable evidence against the accused persons and that the accused persons have been falsely implicated by the police officials and the recovery of case State Vs. Ajay Singh & Anr. Page No.5 / 17 property has been planted upon them. Arguing further, Ld. counsel has inter-alia submitted that no public witnesses were joined by the police officials during investigation. It is further argued that due to the lacunae and incoherency in the story of the prosecution, accused persons be given the benefit of doubt and are therefore, entitled to be acquitted.
APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
12. Arguments adduced by Ld. APP for State and Ld. Counsel for accused have been heard. The evidence and documents on record have been carefully perused.
13. I have bestowed my thoughtful consideration to the rival submissions made by both the parties. Accused persons Ajay Singh and Laxman Kumar have been indicted for the offence u/s 12 of Delhi Public Gambling Act, the contents of which are reproduced as follows:
"12.Gaming and setting birds and animals to fight in public streets.-A police officer may apprehend without warrant any person found gaming in any public street, place or thoroughfare situated within the Union Territory of Delhi, or any person setting any birds or animals to fight in any public street, place or thoroughfare situated within the said Union Territory, or any person there present aiding and abetting such public fighting of birds and animals, such person when apprehended shall be brought without delay before a Magistrate and shall be liable to imprisonment for a term which may extend to three months and shall also be liable to a fine which may extend to one thousand rupees, State Vs. Ajay Singh & Anr. Page No.6 / 17 and such police officer may seize all instruments of gaming found in such public street, place or thoroughfare on the person of those whom he shall so arrest, and the Magistrate may on conviction of the offender order such instruments to be forthwith destroyed."
14. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal. However, as discussed hereinafter, careful scrutiny of the evidence placed on record brings to light the fact that the case of the prosecution is fraught with multiple inconsistencies, rendering the prosecution version incredible.
i). Doubtful Seizure Memo:
15. A careful reading of the testimonies of PW1 and PW2 reflects that HC Sanjeev had seized the case property vide seizure memo Ex. PW1/A at the spot and had thereafter prepared the tehrir Ex. PW 1/B and handed over the same to Ct. Sandeep, for registration of FIR. The narration of such a chronology of events leads to the irresistible conclusion that the seizure memo of property was prepared at the spot, prior to the tehrir being sent to the police station for registration of the FIR and that the FIR was, therefore, admittedly registered after the preparation of the said document. Accordingly, it follows that the number of the FIR would have come to the knowledge of the investigating State Vs. Ajay Singh & Anr. Page No.7 / 17 officer only after a copy of the FIR was brought to the spot by Ct. Sandeep. Thus, ordinarily, the FIR number should not find mention in the seizure memo, which document came into existence before registration of the FIR. However, quite surprisingly, perusal of seizure memo reflects the mentioning of the full particulars of the FIR thereupon, which fact has remained unexplained on behalf of the prosecution. It is not even the case that the same, on the face of it, appears to have been written in separate ink or at some left over space. Rather, it appears to have been recorded in same continuity, handwriting and ink as rest of the contents of these documents. No explanation from the prosecution is forthcoming as to how the FIR number surfaced on a document which was prepared prior to the registration of the FIR. This fact casts a fatal doubt upon the case of prosecution.
16. At this stage, reference may be made to the decision of the Hon'ble High Court of Delhi in Pawan Kumar v. The Delhi Administration, 1989 Cri. L.J. 127, wherein it was observed in paragraph 5 as follows:
"....Learned counsel for the state concedes that immediately after the arrest of the accused, his personal search was effected and the memo Ex.PW11/D was prepared. Thereafter, the sketch plan of the knife was prepared in the presence of the witnesses. After that, the ruqa Ex.PW11/F was sent to the Police Station for the registration of the case on the basis of which the FIR, PW 11/G was recorded. The F.I.R. is numbered as 36, a copy of which was sent to the I.O. after its registration. It comes to that the number of F.I.R. 36 came to the knowledge of the I.O. after a copy of it was delivered to him at the spot by a Ct. . In the normal circumstances, the F.I.R. No. should not find mention in the recovery memo or the sketch plan which had come into existence before the registration of the case. However, from the perusal of the recovery memo, I find that the FIR is mentioned whereas the State Vs. Ajay Singh & Anr. Page No.8 / 17 sketch plan does not show the number of the FIR. It is not explained as to how and under what circumstances the recovery memo came to bear the F.I.R. No. which had already come into existence before the registration of the case. These are few of the circumstances which create a doubt, in my mind, about the genuineness of the weapon of offence alleged to have been recovered from the accused."
17. Similarly, in paragraph 4 of Mohd. Hashim vs State, 82 (1999) DLT 375, the Hon'ble High Court of Delhi observed:
"...Surprisingly, the secret information (Ex. P.W. 7/A) received by the Sub-Inspector Narender Kumar Tyagi (P.W. 7), the notice under S. 50 of the Act (Ex. P.W. 5/A) alleged to have been served on the appellant, the seizure memo (Ex. P.W. 1/A) and the report submitted under S. 57 of the Act (Ex. P.W. 7/D) bear the number of the FIR (Ex. P.W. 4/B). The number of the FIR (Ex. P.W. 4/B) given on the top of the aforesaid documents is in the same ink and in the same handwriting, which clearly indicates that these documents were prepared at the same time. The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex. P.W. 4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex. P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution."
18. The aforesaid rulings of the Hon'ble High Court of Delhi squarely apply to the facts in the present case as well, which leads to only one of the either inference, that is, either the FIR was registered prior to the alleged recovery of the case property, or that said document was prepared later in point of time. In either of the scenarios, a dent is created in the version of the prosecution, the benefit of which must accrue to the accused.
State Vs. Ajay Singh & Anr. Page No.9 / 17ii). The non-joining of any independent / public witness.
19. It is evident from the record that no public person witness to the recovery of case property has been either cited in the list of prosecution witnesses or has been examined by the prosecution. It has been admitted by the prosecution witnesses that that there were public persons present at the spot. Further, PW1 stated during his cross examination that he had even asked a few public persons to join the investigation, however, all of them refused to join the investigation and left the spot. Thus, it is not the case of prosecution that public witnesses were not available at the spot. However, from a perusal of the record, no serious effort for joining public witnesses appears to have been made by the investigating officer. These facts are squarely covered by the ruling of the Hon'ble High Court of Delhi in the case titled as, Anoop Joshi Vs. State" 1992 (2) C.C. Cases 314 (HC), wherein it was observed as under:
".........18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC."
20. Further, in a case law reported as Roop Chand v. The State of Haryana, 1999 (1) C.L.R. 69, Hon'ble Punjab & Haryana High Court held as under:
State Vs. Ajay Singh & Anr. Page No.10 / 17"........The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
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. 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 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 from the public had refused to join the investigation, the IO must have proceeded against them under the relevant provision 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 public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."
21. In fact, in this regard, Section 100 of the Cr.P.C also accords assistance to the aforesaid finding, by providing that whenever any search is made, two or more independent and respectable inhabitants of the locality are required to be made witnesses to such search, and the search is to be made in their presence. Under Section 100(8) Cr.P.C, refusal to be a witness can render such non willing public witness liable for criminal prosecution. Despite the availability of such a provision, no sincere attempts were made by the police to join witnesses in the State Vs. Ajay Singh & Anr. Page No.11 / 17 present case. Therefore, non-compliance of the mandatory provisions of law, even though public witnesses were easily available in the vicinity, makes the prosecution version highly doubtful.
22. This court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, the testimony of the police witnesses in the present case is not worthy of credit. In such a situation, evidence of an independent witness would have rendered the much needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above, and hereinafter.
iii). Possibility of misuse of seal of the investigating officer.
23. As per the version of PW1 as stated by him during his cross examination, after sealing the case property with the seal of 'NS', the seal was handed over to Ct. Sandeep. However, Ct. Sandeep was a recovery witness and was subsequently, a part of the investigation in the present case. Thus, the seal was not handed over to any independent witness. There is nothing on record to suggest that IO had made efforts to handover the seal to any independent witness. More importantly, it is imperative to note that no handing over memo of seal was also prepared by the IO in this regard. In addition to this, there is no taking over memo on record to show as to when the seal was taken back State Vs. Ajay Singh & Anr. Page No.12 / 17 from Ct. Sandeep or if it remained with him forever. In such a factual backdrop, since the seal was given to Ct. Sandeep, the seal remained with the police officials of the same police station and therefore, the possibility of tampering with the case property cannot be ruled out. Moreover, it is not even the case of the prosecution that the seal was not within the reach of the IO and thus, there was no scope of tampering of case property.
24. In this regard, judgment in case titled as Ramji Singh Vs. State of Haryana 2007 (3) RCR (CRIMINAL) 452, may be adverted to, wherein it was observed in paragraph 7 that:
"....The very purpose of giving seal to an independent person is to avoid tampering of the case property. It is well settled that till the case property is not dispatched to the forensic science laboratory, the seal should not be available to the prosecuting agency and in the absence of such a safeguard the possibility of seal, contraband and the samples being tampered with cannot be ruled out. In the present case, the seal of Investigating Officer-Hoshiar Singh bearing impression HS was available with Maha Singh, a junior police official and that of Deputy Superintendent of Police remained with Deputy Superintendent of Police himself. Therefore, the possibility of tampering with seals as well as seized contraband and samples cannot be ruled out."
25. Similarly, Hon'ble High Court of Delhi in Safiullah v. State, (1993) 49 DLT 193, had observed:
"9. ... The seal after use were kept by the police officials themselves therefore the possibility of tempering with the contents of the sealed parcel cannot be ruled out. It was very essential for the prosecution to have established from stage to stage the fact that the sample was not tempered with. The prosecution could have proved from the CFSL form itself and from the road certificate as to what articles were taken from the Malkahana. Once a doubt is created in the preservation of State Vs. Ajay Singh & Anr. Page No.13 / 17 the sample the benefit of the same should go to the accused..."....
11. It is nowhere the case of the prosecution that the seal after use was handed over to the independent witness P.W.5. Even the I.O. P.W.7 does not utter a word regarding the handing over of the seal after use. Therefore, the conclusion which can be arrived at is that the seal remained with the Investigating Officer or with the other member of the raiding party therefore the possibility of interference or tempering of the seal and the contents of the parcel cannot be ruled out...."
Thus, in light of the aforesaid discussion, the possibility of misuse of seal and tampering of case property cannot be ruled out.
iv). Other infirmities in the prosecution case.
26. Furthermore, there is also inconsistency in the version of PW2 as regards the time at which he had reached at the spot. On one hand, it is the version of the said PW that he had reached the spot at around 11:30 PM, while, on the other hand, as per the arrest memo, the accused persons were arrested at 10:55/11:00 PM by him. When confronted on this aspect, the said PW deposed that he had given an approximate time at which he had reached at the spot. However, this clarification of the IO does not appear to be genuine as prior to arrest of the accused persons, various other proceedings were apparently carried out by the IO at the spot, as deposed by him during his examination-in-chief, and it was only later that the accused persons were arrested. Thus, the said proceedings too would have taken time, thus implying that the same may have been carried out way before the accused persons were arrested at 10:55 PM. The difference between the time at which the said proceedings would have been actually carried out after the IO had reached at the spot and the State Vs. Ajay Singh & Anr. Page No.14 / 17 time mentioned by PW2 at which he had reached at the spot is far too much to be passed off as approximate time.
27. Furthermore, though DD entry as regards the departure of HC Sanjeev Kumar and Ct. Sandeep for patrolling duty has been placed on record, however, no DD entry with respect to their arrival at the PS after conclusion of investigation in the case, has been placed on record. Moreover, even the DD entry as regards the departure of HC Narender from PS to the spot after subsequent investigation in the case was marked to him, has not been placed on record. No explanation in this regard is also forthcoming on behalf of the said police officials. At this juncture, it would be apposite to reproduce chapter 22 Rule 49 of of Punjab Police Rules, 1934, which is as follows:
"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 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.
(ci) Note: The term police station will include all places such as Police Lines & Police Posts where Register No. II is maintained."
The aforesaid lapse of not making required DD entries at the PS, on part of the said police officials renders the factum of their departure to the spot and arrival to PS questionable and suspicious and thereby, blemishes the sanctity of their version in State Vs. Ajay Singh & Anr. Page No.15 / 17 this regard. Such material discrepancies raise doubt regarding the proceedings having been conducted at the spot and also give rise to the suspicion that the same were done in a mechanical manner in the PS itself and that the accused persons may have been falsely implicated in the present case.
28. Thus, in light of of the aforesaid discussion, the recovery of the alleged case property from the possession of the accused persons becomes highly doubtful. There are material links missing in the prosecution story, and the chances of tampering of case property or false implication of the accused persons by the police cannot be ruled out.
29. There is no gainsaying that if two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede to the existence of a reasonable doubt. The aforementioned lacunae in the story of the prosecution render the version of the prosecution doubtful, leading to the irresistible conclusion that the burden of proving the guilt of the accused persons beyond reasonable doubt has not been discharged by the prosecution. Thus, this Court is of the opinion that the prosecution has failed to bring on record any cogent evidence in order to prove the commission of and guilt of the accused persons for offence u/s 12 of Delhi Public Gambling Act.
30. Accordingly, this Court hereby accords the benefit of doubt to the accused persons for the offence u/s 12 of Delhi Public Gambling Act and holds the accused persons not guilty of State Vs. Ajay Singh & Anr. Page No.16 / 17 commission of the said offence. Accused persons Ajay Singh and Laxman Kumar are thus, acquitted of the offence u/s 12 of Delhi Public Gambling Act.
31. Copy of this judgment be given free of cost to the accused persons.
Announced in the open court on 03.08.2023, in presence of both accused and Ld. Counsel Digitally signed by APOORVA APOORVA RANA for accused. RANA Date: 2023.08.03 16:59:32 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/03.08.2023
It is certified that this judgment contains 17 pages, all signed by the undersigned. Digitally signed by APOORVA APOORVA RANA RANA Date:
2023.08.03 16:59:38 +0530 (APOORVA RANA) M.M-10/Dwarka Courts/03.08.2023 State Vs. Ajay Singh & Anr. Page No.17 / 17