Delhi District Court
State vs Mohd. Yusuf & Ors. on 9 October, 2013
IN THE COURT OF MS. KIRAN BANSAL, CMM (EAST DISTT.),
KARKARDOOMA COURTS, DELHI
State V/s Mohd. Yusuf & Ors.
FIR No: 338/04
U/s: 3/4/5/9/55 Gambling Act
PS: Mayur Vihar
JUDGMENT
a). ID No. of the case : 02402R0524592004
b). Sr number of the case : 66/08
c). Date of commission of offence : 06.10.2004
d). Name of complainant, if any : ASI Gopi Ram, No.103(Crime)
PIS no.28760754, AH Section /
Crime Branch, Prashant Vihar, Delhi
e). Name & address of accused : 1. Mohd. Yusuf
S/o Sh. Barkatulla
R/o 27/94, Trilok Puri, Delhi.
2. Parmesh Kumar
s/o Sh. Kanhiya Lal
r/o 28/39, Trilok Puri, Delhi.
3. Inder
s/o Sh. Ram Kishan
r/o 28/67, Trilok Puri, Delhi.
4. Pintoo Singh
s/o Sh. Shyam Lal
r/o H. No. 27/65, Trilok Puri, Delhi.
f). The offence complained of : U/s 3, 4,5,9/55 DPG Act,1955 r/w S.
34 IPC
g). The plea of accused : Pleaded not guilty
h). Final order : Acquitted
g) The date of such order : 09.10.2013
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 06.10.2004 at about 6:40 p.m. At Jhuggi Block, No.28, Trilok Puri, Delhi State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 1/8 within the jurisdiction of PS Mayur Vihar, Delhi, all the accused persons namely Mohd. Yusuf, Parmesh Kumar, Inder and Pintoo Singh used the aforesaid jhuggi / house as common gaming house and assisted the satta business on some numbers 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 3/4/5/9/55 D.P.G. Act was registered against all the accused persons, investigation were carried out and charge sheet 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 charge sheet were supplied to the accused persons. Thereafter, the charge for the offence u/s 3 & 4 of Gambling Act was framed on 19.08.08, 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 Ct. Gulshan Kumar who deposed that on 06.10.04 a secret information was received by Insp. Ajay Sharma that some satta is going at Trilok Puri, Block27. On this raiding party was formed consisting Insp. Ajay Sharma, ASI Gopi Chand, Ct. Manoj Kumar, Ct. Narender, HC Rohtash, Ct. Kaushal and Ct. Sunil Kumar. He further depoesd that thereafter, at about 4:25 pm they left to Trilok Puri in Govt. vehicle bearing no. DL1CF4282 at chawk Trilok Puri, Block No.27. Insp. Ajay Sharma had directed them to keep watch. Insp. Ajay Sharma obtained search warrant from DCP/Crime Branch and came at the spot and at about 6:20 pm he asked 45 persons to join the raid but none agreed and left the spot. Thereafter, Insp. Ajay Sharma had deputed to ASI Gopi Chand as a decoy customer and was deputed as a shadow witness. He was also handed over Rs.10/ currency notes by Insp. Ajay Sharma for satta on number 20. State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 2/8 After staking satta, he gave signal to Insp. Ajay Sharma and all the other members of the raiding party also reached at the spot. Accused persons Yusuf, Parmesh, Pintu and Inder were found at 27/67, Trilok Puri Chowk, one patti was recovered from accused Yusuf and Rs.10/ currency note was recovered from accused Pintu, Rs.5030/ were found in plastic theli of yellow colour and some other articles were also recovered. The recovered articles were taken into possession vide seizure memo Ex.PW1/A, slip was taken into possession vide seizure memo Ex.PW1/B. Accused Mohd. Yusuf, Pramesh Kumar, Gulshan Kumar were arrested vide arrest memo Ex.PW1/C, 1/D and 1/E respectively. Case property was exhibited. In his crossexamination by Ld. APP for the State he stated that currency note of Rs.10 was seized at the instance of accused Inder and Mohd. Yusuf and handed over the satta slip to ASI Gopi Chand. One small spiral pad having details of satta was recovered separately. In his crossexamination by ld. Defence counsel he stated that they left their office on one big wheeler make Leyland driven by Ct. Ashok Kumar. He further stated that he does not know whether any information was given to the local police of the area and he had not gone with Ajay Sharma to obtain the search warrant from DCP office. He further stated that He had not seen the said search warrant. However, he denied the suggestion that no search warrant was obtained by Insp. Ajay Sharma. He further stated that he does not know whether the names and addresses of the 45 persons who refused to join the raid have been noted. He further stated that he does not remember what was situated near the 27 block, Trilok Puri, however, he denied the suggestion that he had not joined the raid. ASI Gopi Chand had gone to stake satta at 27/67 Jhuggi. He denied the suggestion that no jhuggi is situated at 27/67. He further stated that the said jhuggi was made of brick State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 3/8 and roof was made of Tirpal, however, no photographs was taken of the jhuggi. He admitted as correct that no word 'satta' is mentioned on Ex.PA and Pads. He also stated that no signature of any accused were there on the said exhibits. He further stated that he does not know who has written on the Ex.PA. He admitted as correct that small pads and slip and paper on which slip and details mention is easily available in the market. He denied the suggestion that nothing was recovered at the spot and details were mentioned by them on the said exhibits. No specimen / writing were obtained of the accused persons and all the writing work was done at the spot where the articles were recovered. He further stated that he had signed the documents in their office / crime branch. He denied the suggestion that all the writing work was done in their office. He denied the suggestion that nothing has been recovered from the possession of accused persons.
5. PW2 ASI Ram Sultan is the DO who proved the FIR No. 338/04 Ex.PW2/A and endorsement on rukka Ex.PW2/B.
6. PW3 HC Nagender Singh is formal police witness who proved the DD entry no.19 and 24 as Ex.PW3/A and 3/B respectively.
7. PW4 ASI Shri Bhagwan is a police witness and a member of raiding party who deposed that on 06.10.04 he alongwith ASI Gopi, Ct. Gulshan Kumar, HC Rohtash and other police officials went to Mayur Vihar regarding some satta information. He further deposed that ASI Gopi Ram handed over him one 10 rupee note to be placed on no.20 in the jhuggi where satta was being played. He further deposed that on staking satta he received a parchi and thereafter, he made a signal towards the raiding party. Raiding party arrived at the spot and apprehended the accused persons namely State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 4/8 Yusuf, Bindu (typographical error as the accused name is Pintu), Parmesh and Govind. He also identified the accused persons in the court and stated that those were involved in the satta and apprehended by the raiding party. Ld. APP crossexamined the witnesses where he stated that accused were arrested. He proved the arrest memo of accused Pintu as Ex.PW4/A, personal search of accused persons Parmesh, Mohd. Yusuf, Pintu and Inder as Ex.PW4/B to Ex.PW4/E, handing over memo, recovery memo of Rs.10 is Ex.PW4/G and Ex.PW4/H. In his further examination he reiterated the version of PW1 Ct. Gulshan Kumar in his testimony and proved the site plan Ex.PW4/I and personal bail bond vide Ex.PW4/J, PW4/K, PW4/L and PW4/M. The case property was also exhibited as Ex.P1 to P5 and PA. In his crossexamination by ld. Defence counsel he stated that he reached at spot at 5:30 pm and they left their office at 4:30 pm. He further stated that no public persons had joined the raid. He also stated that Ct. Gulshan Kumar was the shadow witness who was present in front of the gate of jhuggi. He denied the suggestion that no satta was staked by him with the accused persons and they had not handed over him any slip.
8. PW5 HC Sunil Kumar is a police witness and also a member of raiding party who reiterated the version of PW1 Ct. Gulshan Kumar and PW4 ASI Sri Bhagwan in his examination in chief. In his crossexamination by ld. Defence counsel he deposed that he does not know about the information as the same was not received in his presence. He further stated that they left the office at about 4:45 pm. He further stated that there was no heavy traffic in the way and on the way they did not ask any public persons to join the spot. He further stated that he does not know about the ownership of said jhuggi. He further stated that he does not know what deal was struck between HC Sri State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 5/8 Bhagwan and the accused persons and they remained at the spot for about 44:30 hours. He further stated that all the writing work was done while sitting outside the jhuggi. He denied the suggestion that no raid was conducted at the spot or that no satta was going on at the spot.
9. 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.
10.Statement of all the accused persons 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.
11.I have heard the submission of Ld. APP for the State and the accused himself. I have also carefully perused the record.
12.The court has carefully examined the entire material available on record including the testimony of the PWs recorded before the Court. There are total five witnesses who could be examined in the present case and all of them are the police official witnesses. Here PW1 is Ct. Gulshan Kumar who has seized the articles vide memo Ex.PW1/A & slip vide memo Ex.PW1/B, Accused persons were personally searched and arrested vide memos Ex.PW1/C, PW1/D and PW1/E, ASI Ram Sultan is DO who proved FIR Ex.PW2/A and endorsement on rukka Ex.PW2/B. PW3 is HC Nagender Singh who proved the DD entry no.19 and DD entry No.24 both dated 06.10.04 as Ex.PW3/A and 3/B respectively. PW4 ASI Shri Bhagwan who proved the arrest of accused Pintu as State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 6/8 Ex.PW4/A and personal search of accused persons as Ex.PW4/B to Ex.PW4/E, handing over memo Ex.PW4/G.
13.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.
14.Witness has stated that the articles were recovered from the jhuggi in question. Though the IO has seized the Currency note of Rs.10/, 100, 50/ and Rs.20/, four spiral small pads and slip but he never sent them to FSL for examination. Merely, possession of above articles is not an offence. Nothing was found on record to suggest that the above said articles were used for the purpose of gambling. Even the seizure memo Ex.PW1/A and B and have been prepared in a vague manner. There is no evidence on record to suggest that the articles recovered were used for the purpose of gambling.
15.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. No public witness State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 7/8 has been cited as a witness and this is also fatal to the case of the prosecution.
16.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 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.
17.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 09.10.2013 (KIRAN BANSAL)
CMM (EAST DISTT.): KKD COURTS, DELHI
State Vs. Mohd. Yusuf & Ors., FIR No.338/04, u/s 3 & 4 Gambling Act & 34 IPC Page No. 8/8